; ^r > > J »■' "7» I •v. ^ » '> V . » » ,.* J .. >» > »'^>y ^' ''J» k CJnmpU IGatu ^rljonl Htbratj] KEN744 11864 """""'"""■"'"'>' ^llMim«fl,.±,'.^.*l?.5.°^!!!°ya^S 3 1924 016 981 379 "air Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924016981379 TllK REVISED STATUTES -NOVA-SCOTIA. THIRD SEEKS, PEEPAEED BY STEWART CAMPBELL, Q. C, CHAELES E. HAERINaTON, Q. C. HIRAM BLA^CHARD, Q. C, COMMISSIOKEES FOEEEVISING AND CONSOLIDATIKG THE STATUTES OP THE PEOVraCE. PWBMSHED ITNDER TILE 8BPEEVISION OS MIRAM BLANOHARD Q. O. "WILLIAM TWINING, Escmire. HALIFAX, N. S. : J. & W. COMPTON, PUBLISHERS. 1864. ^J^ > 7- AN ACT TO PROVIDE FOR THE PUBLIOATIOK OF THE OOFSOLEDATED STATUTES. (Passed on the 10th day of May, A. D., 1864.) Be it enacted by the Q-overnor, Council, and Assembly, as follows ; 1. The Governor in Council shall cause the general acts passed during the present session, to be arranged under appropriate titles arid chapters with the following words prefixed, that is to say : *' An act for Revising and Gonsolidaiing 'the General Statutes qf Nova Scotia. Be it enacted by the Grovernor, Council, and Assembly, as follows : " and the same shall be published in consolidated form, with a copious index, as soon as the same can be conveniently done ; and when the same shall be so published, the gover- nor shall, by proclamation, declare the acts so consolidated to be in force, and the same, or so much thereof as shall not be then in operation, shall thereupon and thereafter be- come and be in force. 2. But chapters of the said consolidated statutes may be brought into earlier operation by being published in the royal gazette, by order of the governor in council; and chapters so published shall take eifect from such publica- tion, or from the time otherwise expressed in any procla- mation of the governor respecting the coming into opera- tion of the same. 3. Acts passed during the present session to which the assent of the governor has been or shall be given separately, come into operation from the time, when, by law or the enactment of the said acts, the same are appointed to come into force ; but, nevertheless, such of the said acts as are of a genei'al character, shall be arranged among and incor- poi'ated with the consolidated statutes. 4. AH acts in force on the first day of the present session, which shall not since have expired or have been repealed by some such separate act as mentioned in the, CONSOLIDATED LAW'S. third section, or by some such chapter published, in advance as mentioned in the second section, shall continue in force, subject to any amendments which may have been made thereto by any such separate act or chapter published in advance until the publication of the consolidated acts by proclamation as aforesaid ; and the same acts so continued in force shall, upon and after such publication of the con- solidated acts, be i-epealed and cease to have any force or effect, except the acts hereinafter named, and also except such chapters of the revised statutes, second series, and such acts as shall not be substantially incorporated in the said consolidated statutes, and which will not have been repealed or have expired. 5. The following acts are continued in force notwith- standing and after the publication of the consolidated statutes, that is to say : The second part of chapter twenty-seven of the revised statutes, second series, entitled, " of the Coal Mines." Chapter forty, of the same series, entitled, " of Sheriffs." Chapter eighty-two, of the same series, entitled, " of Interest." Chapter eight, of the same series, entitled, "of Scrutinies." Chapter twenty-eight of the acts passed in 1863, entitled, " an act to regulate the Election of Members to serve in the General Assembly," — except as the same, or any clause or section thereof, is or may have been altered, amended or repealed during the present session. Chapter two of the acts of 1862, " for the Incorporation and winding up of Joint Stock Companies." Chapter sixty-three of the Revised Statutes, " of Sur- veyors of Highways and Highway Labor, except in Hali- fax." Amended by chapter forty, acts of 1860. Chapter twelve, part second, "of a certain Treaty be- tween Her Majesty and the United States of America." Chapter one hundred and thirteen, " of the Registry of Deeds and incumbrances affecting Lands." Chapter one hundred and fifteep, " of the Descent of Real and Personal Estate." 6. All such other chapters of the revised statutes, second series, and all such other acts, which shall not have been repealed or have expired, and which shall not be substan- tially incorporated in the said consolidated statutes when the same shall be published, shall also be continued in force, notwithstanding and after the publication of the consolidated statutes. 7. ISTothing herein contained shall affect or include local or private acts. 8. All rights accruing or accrued under any of the statutes so repealed are reserved, and all penalties incurred thereunder, shall be enforced as jf ^iich statutes had not .been repealed. ANALYSIS SEVERAI. PAETS, TITLES AND OHAPTEES, CONTAINED :N THE REVISED STATUTES. THIKD SERIES. PART I. OF THE INTERNAI. ADMINISTRATIOISr OF THE GOVEENMENT. TITLE I. Chapter 1. Of the peojiulgatiok asd consteijction of statutes . 2 TITLE n. OF THE LEGISLATURE. Chapter 2. Of executive and legislative disabilities, .... 5 Chapter 3. Of the duration of, and representation in, the general assembly, 6 Chapter 4. Of the prevention of corrupt practices at elections, . . 8 Chapter 5. Of controverted elections, 12 Chapter 6. Of vacating seats, 16 TITLE in. OF THE PUBLIC REVENUE. Chapter 7. Of the casual and territorial revenue, 17 Chapter 8. Part the first. — Of customs duties, IS Part the second. — Of a certain treaty between Her Majesty and the United States of America, . 24 Chapter 9. Of excise duties, 26 Chapter 10. Of the board of revenue, 29 Chapter 11. Of the appointment and duties of officers of the customs, . 29 Chapter 12. Of the laws of the customs, 31 Chapter 13. Of the importation of goods, 36 Chapter 14. Of the warehousing of goods, 47 Chaiter 15. Of the exportation of goods and of drawbacks, . . 49 Chapter 16. Of the prevention of smuggling, 55 Chapter 17. Of distilleries, ......... ,53 Chapter 18. Of light house duties, 59 ' Chapter 19. Of licenses for the sale of intoxicating liquors, , , 61 VI. ANALYSIS. TITLE IV. PAGE. Chaptek 20. Of the post office, 71 TITLE V. OF PUBLIC BUILDINGS, EST^VBLISHJDSNTS, AS0 KECOBDS. Chapter 21. Of the board of works, 85 Chapter 22. Of the penitentiary 87 Chapter 23. Of Sable, St. Paul's, and Seatterie islands, and of light houses, 91 Chapter 24. Of the public records, 83 TITLE VI. OF THE MANAGEMENT ADSD REGULATION OF THE PUBLIC DOMAIN. Chapter 25. Of mines and minerals, 93 Chapter 26. Of the crown lands, 113 Chapter 27. Of trespasses to crown property, 116 Chapter 28. Of naval property, 119 TITLE VII. OF THE NATIONAL DEFENCE. Chapter 29. Of the militia, 122 Chapter 30. Of billetting the troops and militia, 147 Chapter 31. Of public fortifications, . 149 Chapter 32. Of an electric telegraph for military purposes, . . 149 TITLE Vin. OF IMMIGRANTS JlSD ALIENS. Chapter 33. Of inunigrants, 150 Chapter 34. Of the privileges and naturalization of aliens, . . 133 TITLE IX. Chapter 33. Of the census and statistical information, . . 154 TITLE X. OF CERTAIN PUBLIC OFFICERS. Chapter 36. Of tlic salaries of certain public officers and certain pensions, 155 Chapter 37. Of the qualifications, appointment and tenure of office of the principal judicial officers, .... 157 Chapter 38. Of the offices of receiver general and financial secretary, and the rendering and audit of the public accounts, 157 TITLE XL Chapter 39. ■ Of treasury notes, the savings bank, .4nd provin- cial loan, 159 TITLE XII. OF counties and county officers. Chapter 40. Of the boundaries of counties, districts aud townships. . 161 Chapter 41. Of coroners, 162 Chapter 42. Of clerks of the peace, 163 ANALYSIS. VU. PAOK. Chapter 43. Of prothonotaries and clerks of the crown, . . .16-1 Chapter 44. Of general and special sessions, 164 Chapter 45. Of county assessments, . , 166 CiLVPTER 46. Ol jails and other county building-s, . . . .183 TITLE XIII. OF TOWNSHIPS AND TOWNSHIP AJO) PEACH OFFICERS. Chapter 47. Of townships, certain county and township officers, . lS4 Chapter 48. Of fences and fence viewers and impounding of cattle, . 187 TITLE XIV. OF THE SUPPORT OF PtfBLIC WORSHIP. Chapter 49. Of the church of England, . •. . . . .190 Chapter 50. Of religious cdngi-egatiohs and societies, . . . 192 Chapter 51. Of assessments for the repairs of meeting houses, . . 197 TITLE XV. OF THE PUBLIC HEALTH. Chapter 52. Of quarantine, 198 Chapter 53. Of boards of health and infectious disease, . . . 19S Chapter 54. Of rabid animals, 201 Phapter 55. Of nuisances, 201 Chapter 56. Of regulations concerning the practice of physic and surgery, . 204 TITLE XVL Chapter 57. Of Indians, 205 TITLE XVn. Chapter 68. Op public instruction, 208 TITLE XVni. OF HIGHWAYS, STREETS, BRIDGES, PUBLIC LANDINGS AND PEPJIIES. Chapter 59. Of the laying out and management of certain great roads, 218 Chapter 60. Of laying out roads other than certain great roads, . 222 Chapter 61. Of subscriptions to public worlvs, 224 Chapter 62. Of highway labor, 225 Chapter 63. Of commissioners of streets, 231 Chapter 64. Of the expenditure of monies on the roads, . . . 238 Chapter 65. Of the preservation of roads, 242 Chapter 66. Of supervisors of public grounds, 244 Chaptbr 67. Of closing roads, 248 Chapter 68. Of bridges and public landings, 248 Chapter 69. Of ferries, 249 Chapter 70. Chapter 71. TITLE XIX. OF RAILROADS. Of provincial government railroads, . . . , Of raUroads other than provincial government railroads, 250 269 Vlll. ANALYSIS. TITLE XX. 01* SEWERS, COMMOXS AND COMMON FIELDS. Chaptkr 72. Of commissioners of .sewers and the regulation of diked and marsh lands. 271 Chapter 73. Of commons. 279 Chapter 74. Of common fields, 279 TITLE XXI. OF THE REGULATION OF TRADE IN CERTAIN CASES. Chapter 7.5. Part the first.— Ot shipping and seamen, . . . 2S2 Part the second.— Of the registry of ships, . - .292 Chapter 76. Of marine courts of enquiiy, 293 Chapter 77. Of steam navigation, 295 Chapter 78. Of ■viTecks and wrecked goods, 298 Chapter 79. Of pilotage, harbor.? and harbor masters, . . . 304 Chapter 80. Of partnerships, ........ 312 Chapter 81. Of factors and agents, 317 Chapter 82. Of bills of exchange and promissory notes, . . . 319 Chapter 83. Of currency, , 320 Chapter 84. Of mills and millers, 322 Chapter So. Of the regulation and inspection of provisions, lumber, fuel and other merchandize, 323 Chapter 86. Of weights and measures, 341 TITLE XXn. OF CORPORATIONS. Chapter 87. Of general provisions respecting corporation*. Chapter 88. Of agricultural and land corporations, . TITLE XXIII. OF THE POOR. Chapter 89. Of the settlement and support of the poor, Chapter 90. Of poor districts, •Chapter 91. Of the maintenance of bastard children, . 342 347 348 356 357 TITLE XXIV. OP CERTAIN BIRDS AND ANIMALS Chapter 92. Of the preservation of useful birds and animals, . . 364 Chapter 93. Of the destruction of noxious animals, .... 366 TITLE XXY. OF THE FISHERIES. Chapter 94. Of the coast and deep sea fisheries, ..... 367 Chapter 95. Of river fisheries, 371 TITLE XXVL Chapter 96. Op the encouragement op agriculture, . . 375 ANALYSIS. IX PAGE. TITLE XXVII. • OF CEKTAIN MmSTICIPAl REGULATIONS. Chapteb 97. .Of trustees of public property, 380 Chapter 98. Of public markets, 381 Chapter 99. Of fires and flrewards, 382 Chapter 100. Of the discharge of flrearms and fireworks, . . . 387 Chapter 101. Of the transportation of gunpowder, .... 388 Chapter 102. Of buruiug woods and marshes, 389 Chapter 103. Of the conveying of timber and lumberj on rivers, and and the removal of obstructions therefrom, . . 389 Chapter 104. Of public exhibitions, 391 Chapter 105. Of stray horses and cattle, 392 Chapter 106. Of the going at large of infected cattle, dogs, swine, vicious animals, and geese, 393 Chapter 107. Of the gathering of sea manure, 394 Chapter 108. Of coasting on the highways, roads over the ice and guide boards, 394 Chapter 109. Of the taxation of dogs, 395 PART II. OF THE ACQUISITION", TRAJSTSMISSIOK, AJSID ENJOYMENT OF PRO- PERTY, REAL, AND PERSONAL, THE DOMESTIC RELATION'S, AND OTHER :iLVTXEKS CONNECTED WITH PRIVATE BIGHTS. TITLE XXVIII. or KEAl PKOPEETY AND THE ALIENATION THEREOF. Chapter 110. Of deeds by married women, 396 Chapter 111. Of estates tail, 397 TITLE XXIX. OF TITLE TO REAL AND PERSONAL PROPERTY BY WILL. Chapter 112. Of wills of real and personal estate, .... 397 TITLE XXX. OF TITLES TO REAL PROPERTY BY SPECIAL PROVISIONS OF LAW. Chapter 113. Of joint tenancy and tenancy in common, . . . 402 Chapter 114. Of the sale of lands under foreclosure of mortgage, . 403 Chapter 115. Of the sale of lands to satisfy execution debts, . . 404 TITLE XXXI. OF COPYRIGHTS AND PATENTS. Chapter 116. Of the law of copyrights, 406 Chapter 117. Of patents for useful inventions, 409 ANALYSIS. PAGE. TITLE XXXn. or FRAUDS, PEEJUEIES, AND SECRET BILLS OF SALE. Chapter 118. Of the prevention of frauds and perjuries, . . . 411 Chapter 119. Of the prevention of frauds on creditors by secret biUs of sale, 412 TITLE XXXni. OF THE DOMESTIC RELATIONS. Chapter 120. Of the solemnization of marriage, and the registration t)f marriages, birth, and deaths, .... Chapter 121. Of guardians and wards, Chapter 122. Of masters, apprentices, and servants, . . '. . 414 423 424 PAET III. OF COURTS AJSnO JUDICIAL OFFICEES AND PEOCEEDIKGS EST SPBCIAX CASES. TITLE XXXIV. OF COURTS AND JUDICIAL OFFICERS, TRUSTS AND ESCHEATS. Chapter 123. Of the supreme court and its officers, . Chapter 124. Of proceedings in equity, .... Chapter 125. Of an equity judge, his office and duties, . Chapter 126. Of the court of marriage and divorce, . Chapter 127. Of the probate court, Chapter 128. Of the jurisdiction of justices of the peace in cases, ........ Chapter 129. Of stipendiary or police magistrates, . Chapter 130. Of barristers and attornies, .... Chapter 131. Of trusts and trustees, Chapter 132. Of escheating lands forfeited to the crown, . civil 427 431 444 446 447 465 476 479 481 485 TITLE XXXV. Chapter 133. Of municipalities. 487 TITLE XXXVI. OF COURTS AJSD PROCEEDINGS THEREIN. Chapter 134. Of pleadings and practice in the supreme court, — Part the first, 516 Part the second, 567 Chapter 135. Of witnesses and evidence aud the proof of written documents, 570 Chapter 136. Of jui-ies, • . 583 Chapter 137. Of the relief of insolvent debtors, . . . .593 ■ANALYSIS. XI PAGE. TITLE XXXVn. OF ACTIONS RELATING TO EEAL PKOPEETY. Chaptbk 138. Of the wi-it of dower, 596 Chapter 139. Of the partition of lands, 597 Chaptek 140. Of tenancies and of forcible entry and detainer, . . 604 TITLE XXXVin. OF PROCEEDINGS IN SPECIAL CASES. Chapter 141. Of suits against absent or absconding debtors, . . 605 Chapter 142. Of suits against joint debtors, 609 Chapter 143. Of suits against executors, administrators and trustees, 610 Chapter 144. Of commissioners without the province, . . . 612 Chapter 145. Of distress for rent, and remedy, . . • . . 613 Chapter 146. Of arbitration, 615 Chapter 147. Of petty offences, trespasses, and assaults, . . . 620 Chapter 148. Of the writ of certiorari, 624 Chapter 149. Of interpleader, 624 Chapter 150. Of the protection of justices of the peace, . . . 626 Chapter 151. Of the protection of constables, 629 Chapter 152. Of madmen and vagrants, and of the custody and estates of lunatics, 629 Chapter 153. Of the liberty of the subject, 638 TITLE XXXIX. Chapter 154. Of the LiraTATiON or actions, 641 TITLE XL. Chapter 155. Op costs and fees, 643 PAET lY. OF THE CEBimAX LAW ASTD THE ADMESflSTBATlON OP CEmiNAI, JUSTICE. TITLE XLI. of offences against ITHE GOVERNMENT. Chapter 156. Of treason, 655 CPLiPTER 157. Of offences relating to the army and navy, . . .655 Chapter 158. Of Illegal enlistment, ....... 657 Chapter 159. Of offences against religion, ...... 659 Chapter 160. Of offences against public morals, 660 Chapter 161. Of offences against the law of marriage, . . . 661 Chapter 162. Of offences against the public peace, .... 662 Chapter 163. Of offences against the administration of justice, . . 663 Chapter 164. Of offences against the person, 664 Chapter 165. Of combinations of workmen, 667 Chapter 166. Of offences against the habitation, . . . .67 Chapter 167. Of fraudulent appropriations, 674 Xll ANALYSIS. Chapter 168. Of forgery and offences' relating to the coin, Chapter 169. Of malicious iujiiries to property, . Chapter 170. Of the deflnitiou of terms in this title. . PAGE. . 677 . 677 , 680 TITLE XLIL OF THE ADMINISTRATION OF CRIMINAL JUSTICE. Chapter 171. Of the administration of criminal justice in the supreme court, ' . . . . 683 Chapter 172. Of the duties of justices of the peace in criminal matters 707 APPENDIX. Chapter 8, Revised Statutes, (second series,) Of scrutinies, . . 731 Chapter 40, Kevised Statutes, (second series,) Of sherifls, . . 733 Chapter 63, Revised Statutes, (second series,) Of surveyors of high- -wa,ys and highway labor, except in Halifax, . . 735 Chapter 40, of acts of 1860 — An act to amend chapter 63 revised statutes, (second series,) 740 Chapter 82, Revised Statutes, (second series,) Of interest, . . . 741 Chapter 113, Revised Statutes, (second series) Of tlie registry of deeds and incumbrances affecting lands, .... 742 Chapter 9 of acts of 18i59 — An act to facilitate the taking of evidence and the registry of deeds, 716 Chapter 115, Revised Statutes, (second series,) Of the descent of real and personal estate, 747 Chapter 2 of acts of 1862 — On act for the incorporation and winding up of joint stocli companies, 750 Chapter 28 of acts of 1863 — An act to regulate the election of mem- bers to serve in the general assembly, . . . 755 Chapter 20 of acts of 1864 — An act concerning the election of repre- sentatives to serve in general assembly, . . . 775 PROVINCE OF NOYA-SCOTIA. IN THE TEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND SIXTY-FOUR. AN ACT FOR REVISING AND CONS OLID ATIN"G THE STATUTES AND LAWS ' OF THE PROVINCE. THIRD SERIES. B E IT Enacted, by the Governor, Council and Assembly, as foUows i 2 construction of stalutes. [part 1. Chap. 1. PART I. OP THE INTEENAL ADMINISTEATION OF THE GOVEENMENT. TITLE I. OHAPTEE 1. OF THE PROMTJLQATION AND CONSTRUCTION OF STATUTES. All acta public. 1. All acts sliall be deemed public, and may be declared on, and given in evidence withoiit being specially pleaded. Date of com- 2. The clerk of the legislative council shall endorse on mencemen . Qy^j.^ r^(,^ ^^q (^q^q ^f j^g passage, and the endorsement shall be held part of the act, and shall be the date of its commencement, unless otherwise provided. Publication 3. Printed copies of acts published in the royal gazette how evidenced, newspaper, in Halifax, or purporting to be published by the queen's printer for the province, shall be evidence of such acts. Kepeai or alter- 4. Any act may be altered or repealed during the session "So*" '*"" in which it shall have passed. Revived by ex- 6. 'Eo act nor any portion of an act that shall be re- mentoniy? pealed, shall be revived, unless by express enactment. Proceedings 6. "Where an act shall be repealed in whole or in part, continued un-^ and othcr provisious substituted, all persons acting under dernew. ^^^ ^j^ j^^^ shall coutinuc to act as if appointed under the new law, until others are appointed in their stead, and all proceedings taken under the old law shall be taken up and continued under the new, when not inconsistent therewith ; and all penalties may be recovered and proceedings had, in relation to matters which have happened before the repeal, in the same manner as if the law were still in force. con.?truction of 7. In the constructiou of acts, the following rules shall of tlra'^fg^Be^- be observed, unless otherwise expressly provided for, or rai provisions.: gych coustructiou would be inconsistent with the manifest intention of the legislature, or repugnant to the context, that is to say : The words "queen" or "her majesty" shall include her majesty, her heirs or successors. "Grovernor" and "lieutenant governor" shall include the governor, lieutenant governor or commander-in-chief, or person administering the government of the province for the time being. "Sessions" shall denote the court of general or quarter sessions of the peace for the county or district, and " special session" shall denote a special sessions of the peace for the county or district. TITLE I.] CONSTRUCTION OP STATUTES, 3 *' Justice" shall signify justice of the peace. Chap, 1. " Prothonotary " snail include deputy prothouotary. " Clerk of the ci'OAvn " shall include deputy clerk of the crown, "Jail" shall mean county jail, and where imprisonment is prescribed it shall mean imprisonment in the jail or other building within the county in which debtors inay be legally imprisoned. "Warrant" shall signify warrant under hand and seal, " Grantor" may be construed as including every person from whom any freehold estate or interest passes by deed; and "grantee" as including every person to whom any such estate or interest passes in like manner. "Land," "lands," or "real estate," shall include lands, tenements, and hereditaments, and all rights thereto and interest therein. " Goods " shall mean pex'sonal property, "Issue" as applied to the descent of estates, shall be construed to include all lawful, lineal descendants of the ancestor, "Representatives" shall mean executors and adminis- trators. "Wills" shall include codicils. "Month" shall signify a calendar month, and "year" a calendar year; and "year" alone shall be equivalent to the expression "year of our Lord." "Oath" shall include affirmations in cases where by law an affirmation may be substituted for an oath ; and in the like cases the word " sworn" shall include the word "affirm." "Person" may extend to bodies politic and corporate as well as to individuals. " Folio " shall mean ninety words. " Sureties" shall mean sufficient sureties, and " security" shall mean sufficient security ; and where these words are used one person shall be sufficient therefor, unless other- • wise expressly required. Every word importing the singular number only may extend to several persons or things as well as to one person or thing : and every word importing the plural number only, may extend to one person or thing as well as to several persons or things ; and every word importing the masculine gender only, may extend to females as well as to males. All words purporting to give a joint authority to three or more persons, shall be construed as giving authority to a majority of such persons. 8. Where a penalty shall be imposed, and no parti- fe^cOT'e'red and cular mode be prescribed for the recovery thereof, the same appropriated, may be recovered in the name of any person who will sue therefor, in the same manner, and with the like cos1;s, as 4 CONSTRUCTION OF STATUTES. [PAKT I. CiiAP. 1. it it were a private debt due such person, the nature of ~ the offence being briefly stated in the summons, and where no particular mode of applying any penalty shall be pre- scribed, the same shall be paid, one-half to the person who shall have sued therefor, and the other half to the overseers of the poor for the place where the offence was committed, for the use of the poor thereof ; and where a penalty, or part thereof, shall be for the use of the poor, it shall be paid to the overseers of the poor for the place where the offence was committed, for the use of the poor thereof. The imposition of a penalty shall not relieve any person from liability to answer for special damages to a party Appeals. injured. Appeals to the supreme court shall be allowed by justices of the peace, from every judgment given by them in all cases tried before them, in the same manner and on the same terms as are provided in civil suits, except where otherwise specially provided. All penalties and forfeitures, not exceeding forty dollars, may be sued for and recovered before any two justices of the peace ; but if incurred within the city of Halifax, before the mayor's court. Prosecutions for such penalties or forfeitures may be in the name of any person, or of any coi-porate body. vac'andel''" *"' . ^- .^^^rc authority to make appointments to public situations is conferred, it shall include the power to fill up vacancies caused by death, resignation, removal, or refusal to act. fo^'mako'knd"'"' ^^- Where power to make bye-laws, regulations, rules alter. or ordcrs is conferred, it shall include the power to alter or revoke the same, and make others. ]^o bye-law shall be enforced if repugnant to law. hSw°rL'o''T6rld. 11- Wiien it is declared that any matter is to form a county charge, the expense shall be presented, confirmed, assessed, levied and collected with and by the same means as by law directed with regard to other monies for county purposes. Forms. 12. "Where forms are prescribed, slight deviations there- from, not affecting the substance or calculated to mislead, shall not vitiate them. Sunday, 4c. 13, jf ^he day upon which an act is to be done shall fall on a Sunday, Christmas Day, or Good Friday, the same shairbe performed on the day following. mTn'iBter oaths! l^. Justiccs of the pcace may administer all oaths, with regard to the taking of which no particular directions are given. S?w''»wora*'' 15._ Quakers or Moravians, where an oath is prescribed, may instead of taking the same, solemnly affirm in manner usedin their religion ; and such affirmations shall have the like effect, and render the parties taking them liable Bonds of public *<^ *^^ ^^^^ penalties, if false, as attach to an oath. officers, lb. When bonds are required to be given by a public TITLE II.] OF THE LEGISLATURE. officer, they shall be taken in her majesty's name when not Chap. 2. otherwise directed. 17. Sureties to any such bond^ may at any time give to g^'lf™""' °^ the Provincial Secretary notice of their desire to withdraw from liability thereunder, and in such case the liability of the sureties for any act committed or dereliction of duty after the expiration of three months from the receipt of such notice shall cease. Principals shall in such cases be required to furnish new security, in the same manner as if bonds had not been previously executed. 18. All officers now appointed or hereafter to be ap- °^,^fj| d^nns .pointed by the governor, whether by commission or other- pleasure. wise, shall remain in office during pleasure only, unless otherwise expressed in their commissions or appointments. TITLE II. OF THE liEGISLATUEB. OHAPTEE 2. OF EXECUTIVE AND LEGISLATIVE DISABILITIES. 1. No person shall be capable of being appointed to, or ^^^f°°| '!}??" of sitting or voting in, the legislative council of this orvoting^/nLe^- province, or of being elected to, or sitting or voting in, fjf oi-'Hou^se""? the house of assembly, who shall at the time of such •'^^«''™i'iy. appointment to the legislative council, or at the time of of his being nominated a candidate at such election, hold under the government of this province any one of the following offices, that is to say : Judge of the supreme court. Judge of the court of vice admiralty. Judge of probate or registrar of probate, Post master general, post master or deputy post master — not to include way office keeper, Chairman of board of works. Commissioner of crown lands. Deputy surveyor of crown lands, Queen's printer. Registrar of deeds, Prothonotary, Gold commissioner or deputy gold commissioner. Officer or clerk of the customs, or of colonial or light du- ties, or person concerned in the receiving or managing of any monies to be collected under any of such depart- ments ; but nothing herein contained shall be held to affect the office of receiver general or financial secretary. 6 OP THE LBGISLATUKE. [PART I. Chap. 3. Medical superintendent of tlie provincial hoBpital for the insane, Supervisor of great roads, Railroad contractor. May resign pre. 2. N^o pcrsou shall be Considered as holding any such polntment'OT officc who shall, prcviously to the day of appointment or nomiaation. ^^ nomination, have resigned the same, and intimated such resignation to the provincial secretary. Members ac- 3. Any member of the legislative council, or of the ?lcate^their housc of assembly, accepting any one of such offices after seats. i^-g appointment or nomination shall vacate his seat thereby. Appointment, 4. Thc appointment, nomination, election, or return, ?oM.'°°' °'' of persons disabled as herein mentioned, shall be void, and every person so disabled vs^ho shall sit or vote as a member of the legislative council or of the house of assembly. Penalty. shall forfeit four hundred dollars for every day he shall so sit or vote, to be recovered in the supreme court. Seat of depart- 5. Whcu any pcrsou holding the office of receiver noT™ca°t^d b" general, provincial secretary, financial secretary, attorney offlil°ifinothir genera], solicitor general, and being at the same time a ie accepted member of the house of assembly, shall resign his office ■ and within one month after his resignation accept of any other of such offices, he shall not thereby vacate his seat in such assembly. CHAPTER 3. OF THE DURATION OF AND REPRESENTATION IN THE GENERAL ASSEMBLY. Duration of as- 1- ^o general assembly shall determine merely in sembiy not af- conscQuence of the demise of her maiestv. feoted by the ^ - i t n .n .■ •' „ queen's death. 2. ihc general asscmbly shall continue four years from femb'iyumitedl ^^^ expiration of forty days next after the issuing of writs for any general election, unless sooner dissolved, and no longer. Number of 3. The representation in general assembly, shall be as L°,1S«L!!; m.^ follows : townsliip mem- , « t\. t be"- 1 or the counties of Richmond, Cape Breton, Victoria, Antigonishe, Guysborough, each two members. For the counties of Inverness, Lunenburgh, Cumber- land, Annapolis, and Digby, each three members. For the counties of Yarmouth, Queens and Shelburne, each one county member. For the townships of Yarmouth, Argyle, Shelburne, and Barrington, each one member. TITLE II.] OF THE LEGISLATURE. 7 4. The counties of Hants, Colchester, Pictou, and Chap. 8. Kings shall be represented by four members each, and the "' county of Halifax by five members, and each of said counties shall be divided into two electoral divisions as follows : I. The two electoral divisions of the county of Halifax ^"j'^j^igi'ons^* shall be called, respectively, the western electoral division and eastern electoral division of the county of Halifax. The western electoral division shall comprise the township western des- of Halifax, including the city of Halifax, and shall em- membe™!'^' ° brace the polling districts of numbers one, two, three, four, number one of ward number five, and number two of ward number five and six in the city, and numbers seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, and sixteen, in the rest of the township, and the electors of the said western division shall return three members to serve in the general assembly ; — and the eastern electoral division shall comprise the rest of the n*d*n™mber'of county of Halifax, including the polling districts numbers meiiibers. seventeen, eighteen, nineteen, twenty, twenty-one, twenty- two, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty-eight, twenty-nine, thirty, thirty- one, thirty-two, thirty-three, and thirty-four, — and the electors of the said eastern division shall return two mem- bers to serve in general assembly. n. The two electoral divisions of the county of Hants Hants, names shall respectively be called the northern electoral division °^ divisions. and the southern electoral division of the county of Hants. The northern division shall comprise the polling districts Northern des- numbers four, six, seven, nine, and eleven, as at present "®''- defined; and the southern division shall comprise the southern defi- polling districts numbers one, two, three, five, eight, ten, "^'^' and twelve, as at present defined ; the electors of each of the said divisions shall elect and return two representatives Number of to serve in general assembly. members. m. The two electoral divisions of the county of Col- ooichester-- Chester shall respectively be called the northern electoral s^SIf ° division and the southern electoral division of the county of Colchester. The northern division shall comprise the Northern defi- present polling districts numbers six, eight, nine, ten, ^^^' eleven, twelve, and thirteen ; and the southern division southern defi- shall comprise the present polling districts numbers one, °«<*- two, three, four, five, and seven. The electors of each of Number of the said divisions shall elect and return two representatives ™^"' ^^^' to serve in general assembly. IV. The two electoral divisions of the county of Pictou pj^j^^ ^^^^^^^^ shall respectively be called the western electoral division of divisions. and the eastern electoral division of the county of Pictou. The western electoral division shall comprise the township western defi- of Pictou, and shall embrace the following polling dis- tricts : numbers one, two, three, four, five, six, seven. CORRUPT PRACTICES AT ELECTIONS. [PART I. Chap. 4. Eastern defi- ned. Number of members. Kings, names divisions. Line [of divi- sion. ' Northern defi- ned. Southern defi- ned. Number of members. Queens, names of division.^. Boundaries of counties, ic.,a3 heretofore. eight, nine, ten, and eleven; and the eastern electoral division shall comprise the townships of Egerton and Maxwelton, and the rest of the county of Pictou, and shall embrace the polling districts numbers twelve, thir- teen, fourteen, fifteen, sixteen, seventeen, eighteen, nine- teen, twenty, twenty-one, and twenty-two. The electors of each of the said electoral divisions shall elect and return two representatives to serve in general assembly. 5. The two electoral divisions in the county of Kings shall respectively be called the northern electoral division and the southern electoral division of the county of Kings, which two divisions shall comprise the whole county, and be divided by a line described as follows, that is to say : by the line separating the townships of Horton and Cornwallis from the Basin of Minas up the Cornwallis river as far as the river is the division of these townships near Kentville, and thence continuing along the centre of the river to its source in the Carriboo Bog, thence west to the line dividing Cornwallis and Aylesford, thence southerly by that line to the centre of the main post road, thence by the centre of the said road westwardly to the line separating the counties of Kings and Annapolis. All that portion of the county of Kings which lies to the northward of the said line, shall be the northern electoral division, and all that portion which lies to the southward of said line shall be the southern electoral division. The elec- tors of each of the said electoral divisions shall elect and return two representatives to serve in general assembly. 5. The county of Queens shall be divided into two electoral divisions, to be called, respectively, the northern division and the southern division, each of which shall return one member. The southern division shall include electoral districts numbers one, two, three, and four, and the northern division numbers five and six. 6. The boundaries of counties, townships, electoral divisions and polling districts, for the purposes of this chapter, shall be the same as are now established. OHAPTEE 4. Expenses for entertainment, &e., not reco- verable from candidate or his agent. Penalty for can- didate furnish- ing intoxica- ting liquors. OF THE PREVENTION OF CORRUPT PRACTICES AT ELECTIONS- 1. No person shall recover from a candidate or his agents for entertainment furnished at the request of any of them to other persons at an election; and if, upon trial, it shall appear that any part of the plaintiff's claim is for entertainment so furnished, he shall be non-suited. 2. If a candidate during an election shall furnish, or willingly permit to be furnished, to an elector or person TITLE II.] CORRUPT PRACTICES AT ELECTIONS. 9 claiming to be an elector, any intoxicating liquors, lie Chap. 4. shall forfeit four hundred dollars. 3. The following persons shall be deemed guilty of Persons deem- bribery, and shall be punishable accordingly : — blibl'Jy. ^ " I. Every person who shall directly or indirectly, by Any person himself or by any other person on his behalf, give, lend, fing"lo.mo™ey or agree to give or lend, or shall offer, promise, or promise sSauoi^to"' to procure, or to endeavour to procure, any money or valu- pg*|on to*in- able consideration, to or for any voter, or to or for any duee voter to iTij«j> j_ j^ J} J.T. vote, or refrain person on behalt ot any voter, or to or tor any other from voting. person in order to induce any voter to vote, or refrain from voting, or shall corruptly do any such act as aforesaid on account of such voter having voted or refrained from voting at any election. n. Every person who shall directly or indirectly, by Any person 1 . ,„ <^ ,, 1 ■ -u T. ii? • giving, promie- himseli or by any other person on his behaii, give or mg &c. oface or procure, or agree to give or procure, or offer, promise, or voter^^OT^the? promise to procure, or to endeavour to procure, any office, §uoe°"voter ^to place or employment, to or for any voter, or to or for any yote or refrain f i/ 1J. „' J. -^ J. .p J.1 from voting. person on behalf of any voter, or to or lor any other person, in order to induce such voter to vote or refrain from voting, or shall corruptly do any such act as aforesaid on account of any voter having voted or refrained from voting at any election. m. Every person who shall directly or indirectly, by Any person himself or by any other person on his behalf, make any iSan^olfef' &c., such gift, loan, offer, promise, procurement, or agreement induce hfm to as aforesaid, to or for any person, in order to induce such ^f cludidate"™ person to procure or endeavour to procure, the return of Tote. any person to serve in general assembly, or the vote of any voter at any election. rV. Every person who shall, upon or in consequence Person promis- j? 1 fci. 1 xp • X mg to procure ot any such girt, loan, oner, promise, procurement, or return, or vote agreement, procure or engage, promise or endeavour to o" l?ftr&i"*"'^° procure, the return of any person to serve in general assembly, or the vote of any voter at any election. V. Every person who shall advance or pay, or cause Person advauc- to be paid, any money to or to the use of any other person, mfn°eyTo*^be^ with the intent that such money, or any part thereof, shall el|ended7n'^'' be expended in bribery at any election ; or who shall bribery. knowingly pay, or cause to be paid, any money to any person in discharge or repayment of any money wholly or in part expended in bribery at any election. And any person so offending shall be guilty of a mis- Penalty, demeanor, and shall also be liable to forfeit the sum of four hundred dollars to any person who shall sue for the same, together with full costs of suit ; provided always, ProTi«». that the aforesaid enactment shall not extend, or be con- strued to extend, to any money paid or agreed to be paid for or on account of any legal expenses bona fide incurred at or concerning any election. , 2 10 coerxjpt practices at elections. [part I. Chap. 4. 4. The following persons shall also be_ deemed guilty other persons of bribery, and shall be punishable accordingly : votoreceiving I- Eveiy votcr who shall, before or during any or agreeing to election, directly or indirectly, by himself or by any other receive money, ' -, . i ■, , n ../'./ ./x' &c., for voting persou ou lus behalf, receive, agree, or contract tor, any or refraining to j^Qj^gy^ g^ff-^ jqj^j^^ qj. yaluablc Consideration, office, place, or emplojTuent, for himself, or for any other person, for voting or agreeing to vote, or for refraining or agreeing to refrain from voting at any election. rierson after H. Evcry pcrsou who shall, after an election, directly tismmly'&e', ^Y indirectly, by himself or by any other person on his on account of behalf, rcccive anv money or valuable consideration on person having '^ ^ ^ -^ , ,, />-nj?_ voted or re- account of any person having voted or retrained trom Totog. ^'^°" voting, or having induced any other person to vote or refrain from voting at any election. Penalty. And any person so offending shall be guilty of a mis- demeanor, and shall also be liable to forfeit the sum of forty dollars to any person who shall sue for the same, together with costs of suit. ulkig'Tio/ence 5. Evcry persou who shall, directly or indirectly, by or'tatoferiig^ himself or by any other person on his behalf, make use of, with, voters, or threaten to make use of, any force, violence, or restraint, or inflict, or threaten the infliction, by himself or by or through any other person, of any injury, damage, harm, or loss, or in any other manner practice intimidation upon or against any person, in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting at any election ; or who shall by abduction, duress, or any fraudulent device or contrivance, impede, prevent, or otherwise interfere with the free exeroisei of the fi-anchise of any voter, or shall thereby compel, induce, or pre- vail, upon any voter, either to give or refrain from giving his vote at any election ; shall be deemed to have com- mitted the offence of undue influence, and shall be guilty of a misdemeanor, and shall also be liable to forfeit the sum of two hundred dollars to any person who shall sue for the same, together with the costs of suit. reToTeiedT'^""' ^- '^^® pecuniary penalties hereby imposed for the offences of bribery or undue influence, respectively, shall be recoverable by action or suit in the supreme court by any person who shall sue for the same. de?'\'SfJnt°of ^^ shall bc lawful for the court, in cases of prosecu- cratrorprose- tiou for any offence against the provisions of this chapter, eution. ^^ order payment to the prosecutor of such costs and ex- penses as to the court shall appear to have been reasonably incurred in and about the conduct of such prosecutions. tMeTto^hfa"' 8. Li case of any indictment or information by a mint ta^ wf pi'i'i'^'te prosecutor for any offence against the provisions favor. of this act, if judgment shall be given for the defendant, he shall be entitled to recover fi'om the prosecutor the actions. TITLE II.] CORRUPT PRACTICES AT ELECTIONS. 11 costs, to be taxed by the court, sustained by tbe defendant Chap. 4. by reason of sucb indictm,ent or information. 9. It shall not be lawful for the court to order payment Prosecutor f. .1 , p ,. p /v. ■*-.'^,,Tniust enter into 01 the costs 01 a prosecution tor any olience against the recognizance, provisions of this chapter unless the prosecutor shall, tftie™ to'cos™.' before or upon the finding of the indictment or the grant- ing of the information, enter into a recognizance with two sufficient sureties in the sum of five hundred dollars, ■\\'ith the conditions following, that is to say, that the prosecutor shall conduct the prosecution with efi^ct, and shall pay to the defendant or defendants, in case he or they shall be acquitted, his or their costs. 10. E"o person shall be liable to any penalty or for- Limitation of leiture hereby enacted or imposed, unless some prosecu- tion, action, or suit, for the ofl^ence committed shall be commenced against such person within the space of six months next after such offence against this act shall be committed, and unless such person shall be summoned or otherwises served with writ or process within the same space of time, so as such summons or service of writ or process shall not be prevented by such person absconding or concealing himself, or withdrawing from the province ; and in case of any such prosecution, suit, or process as aforesaid, the same shall be proceeded with and carried on without any wilful delay. 11. If any candidate returned at an election for seat of candi- any county, electoral division, or township, shall be briberl^Ac.," declared by the report of any election committee guilty, ''■'"='*'^'*- by himself or his agents, of bribery or undue influence at such election, the seat of such candidate shall, by such report, be forthwith vacated. 12. In an action for recovery of a forfeiture under this Form of action. chapter it shall suffice for the plaintift' to declare that the defendant is indebted to him in the amount of the for- feiture, and to allege the particular offence for which the action is brought, and that the defendant hath acted therein contrary to this chapter, without mentioning the writ for holding the election or the return thereof. 13. In citing this chapter it shall be sufficient to use the Title of ao expression, " the corrupt practices prevention " chapter. 14. Throughout this chapter, in the construction Meaning of thereof, except there be something in the subject or con- i™ act! *''■'"'''' text repugnant to such construction, the word " election " shall mean the election of any member or members to serve in the assembly; and the word " voter " shall mean any person who has or claims to have a right to vote in the election of a member or members to seiwe in the assembly; and the words, " candidate at an election," shall include all persons elected as members to serve in the assembly at such election, and all persons nominated as candidates, or who shall have declared themselves candidates at or before such election. 12 controverted elections. [paet i. Chap. 5. CHAPTER 5. OF CONTROVERTED ELECTIONS. Proceedings on 1. Wlien a petition complaining of an undue election, aretura!'^'""'^ OP peturn of a member to sepve in tlie house of assembly, shall he ppesented to the house, a day and hour shall be appointed by the house fop taking the same into considera- tion, and notice in wpiting shall be fopthwith given by the speakep to the petitionep and the sitting membep, op theip agents, accompanied with an opder to them to attend the house at the time appointed, by themselves, theip counsel, OP agents, and if at the time appointed none of the peti- tioners shall appeap, eithep pepsonally, op by counsel, op agent, the opder fop taking the petition into considepation shall be dischapged, and the petition shall not be fupthep ppoceeded in. l^o such petition shall be peceived aftep foupteen days shall have elapsed from the time that the membep whose return is complained of shall have taken his seat. Bond required. £. ISTo proceeding shall be had on a petition unless at OP befope the time appointed fop considepation thepeof at least one of the petitioneps shall entep into a bond to hep majesty, with supeties, in the sum of eight hundred doUaps, fop the payment of the costs and expenses that may become payable by the petitioneps, undep any pepopt of committee on the petition; the bond, in case of non-payment, "to be put in suit fop the benefit of the papties entitled to the costs and expenses. Proceedings on 3. If befope the day appointed fop considering the peti- turn. tion the membep whose petupn is complained of shall die, OP accept the office of legislative councillor, op declare, under his hand, his intention not to defend his petupn, the speaker shall give notice thepeof in wpiting to the sheriff of the county whepe the election was had, and shall also notify the same in two public newspapers, so that any of the freeholders of the county or township for which the member was returned may, if they think fit, petition the house to be admitted as parties in the room of the member, and they shall thepeupon be so admitted as parties, and stand, as respects the controversy, in the place of the sitting member. Proceedings at 4. At the time appointed for considering the petition, considering the and previous to reading the order of the day therefor, the petition. speaker shall direct the sergfiant-at-arms to go to the places adjacent and require the immediate attendance of members on the business of the house ; and after his return the house shall be counted, and if there are less than thirty- TITLE II.] CONTKOVERTED ELECTIONS. 13 three members present the order shall be adjourned to a Chap. 5. particular hour on the following day, when the house shall proceed in the same manner, and so, from day to day, until there shall be in attendance thirty-three members at the reading of the order. 5. When thirty-three members shall be present, the committee- petitioners, their counsel or agents, and the council or ''°™ drawn. agents of the sitting member, shall be ordered to attend at the bar, and then the door of the house shall be locked, and no member shall be suffered to enter into or depai-t from the house until the drawing shall be completed. The order of the day shall then be read, and the names of the members written on distinct pieces of paper, and, as near- ly as may be, of equal size, and rolled up in the same manner, shall be equally divided, and put into two several boxes placed on the table, and shall be shaken together, and the clerk shall publicly draw out of the boxes altei-- nately the pieces of paper and deliver them to the speaker to be read to the house until fifteen names of members then present be drawn. 6. If the name of a member who shall have voted at the Names of mem- election complained of, or against whose return a petition efectionfof pl- shall be depending shall be drawn, it shall be set aside. to '^set^'atidl! 7. If a member drawn shall verify, on oath, an excuse, Members how the substance thereof shall be taken down by the clerk, in cSsed!^^'' ^^' order that the same may afterwards be entered on the journals, and the opinion of the house shall be taken thereon, and if they shall resolve that the member is unable to serve, or cannot, without great detriment, serve on the committee, he shall be excused therefrom. 8. If the name of a member then serving on one elec- Members serv- tion committee be drawn, he shall be excused from serving Sftte^to 'bo™' on a second. ''""'''^■ 9. "When members are set aside or excused, others shall when mem- iT .j.1-1 1 "TT -1 , bers excused be drawn m their place, who may m like manner be set other names to aside or excused and others drawn in their place until the *"* 'J^^'^- whole number of fifteen members not liable to be set aside or excused shall be complete. 10. When the drawing shall be completed the door of committee how the house shall be unlocked, and lists of the fifteen mem- sworn ;' how* bers shall be given to each party, and they shall imme- adjourned. diately retire with the clerk or his assistant, and each party, his counsel or agent, beginning on the part of the peti- tioners, shall alternately strike off one of the fifteen members until the number shall be reduced to seven ; and the clerk or assistant, within one hour at farthest from the time of the lists being given, shall deliver into the house the names of the seven members then remaining. And the seven members shall be sworn at the table " well and truly to try the matter of the petition referred to them, and a true judgment to give according to the evidence," 14 CONTROVERTED ELECTIONS. [PART I. Chap. 5. and shall be a committee to determine the election ; and the house shall by order direct them to meet at a certain time, and the place of their meeting shall be in a com- mittee room of the house, and they shall sit every day, and shall not adjourn for more than a day without leave of the house, iipon special cause assigned. ap^i^terinT ^^- ^ ^* *^® ^^^^ appointed for considering the petition struck in unde- the sitting member shall not appear by himself, or his counsel or agent, the committee shall be appointed as fol- lows : the names of fifteen members shall be drawn in manner hereinbefore prescribed, but in reducing the lists the clerk or clerk's assistant shall stand in the place of the sitting member; and the same method of reducing the number shall be followed whenever a party waives his right of striking off names. Chairman how 12. The committcc shall, on meeting, select a chairman, and if in the selection, the voices are equal, the member whose name was first drawn in the house shall have an additional casting vote ; and the same course shall be pur- sued, if necessary, to elect a new chairman, on the death or necessary absence of the previous chairman. duty o'f com- ^^- ^^^ Committee shall have power to send for persons mit'tee. and papcrs, and shall examine witnesses on oath, and shall consider evidence and proceedings duly had on a scrutiny, and referred to them by the house, and may admit addi- tional evidence sworn to be material, and which in their judgment ought to be received ; and shall determine whether the petitioner or the sitting member, or either of them, is duly returned or elected, or whether the election is void, or whether a new writ ought to issue ; and their determination shall be final, and the house on being informed thereof by the chairman of the committee, shall order the same to be entered on the journals, and give the necessary directions for carrying the determination of the committee into execution. re™rt s'IcSir ^^' ^^ *^® committee shall come to any resolution other than the determination above mentioned, they may report the same to the house for their opinion, and the house may confirm or disagree with the resolution, and make order thereon as they may think proper. ma'S'^bslnting 15. jSTo member of the committee shall absent himself himself. thcrefrom without leave of the house, and the chairman shall report the name of a member so absenting himself, who shall, for his neglect, be punished or censured at the discretion of the house : and the committee shall never proceed unless five members are present. mittel ?edi"oed ^^- ^^ ^^^ members of the committee shall be unavoid- to less than five, ably rcduccd to less than five, and shall so continue for three days, the committee shall be dissolved, and another chosen in like manner; but the evidence already taken shall be considered by the new committee. TITLE II.] CONTROVERTED ELECTIONS. 15 17. If persons summoned by the committee shall dis- Chap. 5. obey the summons, or if witnesses before the committee Disobedioneo " shall prevaricate or misbehave in giving or refusing to give comliTitteo"'' °' evidence, the chairman may, by direction of the committee, report the same to the house for the interposition of their avithority or censure. 18. "Wlien the committee shall think it necessary to Theirpo*er deliberate among themselves, they may, after hearing the in certain'oases evidence and counsel on both sides, direct the room to be oleartd. 19. Decisions of the committee shall be made by a a majority of . . /» . T • f ,^ • T I'll' voices shftll de- majonty oi voices, and ii the voices be equal, including cide. the chairman, he shall have an additional casting vote. 20. The oaths by this chapter directed to be taken in ^fjjj^jp'j"^ "'*' the house shall be administered by the clerk or his assistant, and those before the committee by the chairman. 21. If the general assembly shall be prorogued while a g*fon°wh[ie™a committee shall be sitting, the committee shall not be dis- committoo sit- solved, but shall be thereby adjourned to twelve o'clock ^ ^' on the fourth day following that on which the assembly shall meet again in session, and the former proceedings of the committee shall remain in force, and the committee shall meet at the time to which it shall be so adjourned, and continue to act as if there had been no prorogation. 22. The committee when they report their final deter- committee lo mination to the house, shall also report whether the petition the petition was did or did not appear to them frivolous or vexatious, and ^"^°'°"^- also whether the opposition thereto did or did not appear to them frivolous or vexatious ; and such report shall be signed by the majority concurring therein. 23. When a petition shall be reported frivolous or vexa- if a petition re- tious, the sitting member shall be entitled to recover from fo°usftxpen°ses the petitioners, or any of them, the expenses of opposing reooveraijie. the same. 24. When the opposition to a petition shall be reported pOTtedlriTO-"^"' frivolous or vexatious, the petitioners shall be entitled to iou»' recover from the sitting member the expenses of prose- cuting such petition. 25. The expenses of prosecuting or opposing a petition t^^^j"^^^ ^""^ shall include witnesses' fees as well as other costs and expenses, and shall be ascertained as follows : the speaker, on application, shall direct them to be taxed by the clerk of the house and a master of the supreme court, who shall tax the same and report the amount to the speaker, who, on the approval of the house, or of such part thereof as the house may allowj shall, on application, deliver to the parties a certificate under his hand, expressing the amount of the expenses allowed; and the persons appointed to tax the expenses and report the amount shall be entitled to such fees, to be paid by the parties for whom the bill is taxed, and included therein, as may be fixed by resolution of the house. 16 OF VACATING SKATS. [PAKT I. Chap. 6. 26. The parties entitled to expenses, or their represen- Eipenses how tatives, may demand the amount certified from any of the reooTered. persons liable therefor, and on non-payment may recover the same hy action of debt in the supreme court, wherein it shall be sufficient for the plaintiffs to declare that the defendants are indebted to them in the amount certified by virtue of this chapter ; and the certificate signed by the speaker shall have the effect of a warrant to confess judg- ment, and the court shall on motion, and the production of the certificate, enter judgment for the plaintiffs for the amount specified in the certificate in the like manner as if the defendants had signed a warrant to confess judgment in the action for that amount. A party paying 27. Where the cxpenscs shall havc bccu rccovcred from may recover a t ^ . ^.^ /. j_i rateable eontri- any persou, he may recover m like manner from others, bntion. liable to the payment of the same expenses, a proportion- able share thereof, according to the number liable. Explanation of 28. The word " sitting member," when used in this mlmber.^' '"^ chapter, shall also comprehend parties admitted to oppose a petition.- CHAPTER 6. OF VACATlfifG SEATS. Seats how vaca- 1. Any member of the house of assembly may by '^''' written notice to the provincial secretary, or speaker of the house if in session, vacate his seat. Offices which 2. If any member shall accept of any of the following offices, his seat shall become vacant, but he may be re- elected; that is to say, the offices of attorney general, solicitor general, provincial secretary, receiver general, financial secretary; but if any person holding either of the above offices and being at the same time a member of the house of assembly shall resign his office and vrithin one month after his resignation accept of the same or of any other of such offices, he shall not thereby vacate his seat in such assembly. suppued^^ '"'^ ^- '^^'Tienever a seat shall become vacant a Writ shall be issued to supply the vacancy. howvacatld"' ^- The _ Speaker may vacate his seat as speaker and member, either by a declaration to that effect in the house if in session, or by wiitten notice to the provincial secre- tary, in which case a writ shall be issued to supply the Vacancy. TITLE HI.] CASUAL REVENUE. 17 Chap. 7. TITLE III. OF THE PUBLIC REVENUE. CHAPTEE 7. OP THE CASUAL AND TERRITORIAL REVENUE. 1. The proceeds of all the casual and territorial reve- ritorfai Revenue nues of the crown in the province, as hereafter designated, "hfre paid. shall be paid into the provincial treasury. 2. The several casual and territorial revenues of the of what it c6n- crown, and the monies and funds and other rights which are placed at the disposal of the general assembly for the use of the province, under and by virtue of this chapter, are declared to be — all rents, sums of money, returns, profits, and emoluments, arising, reserved, due, owing, or in any manner whatsoever which shall have heretofore accrued and shall be in hand, or shall be hereafter to be received in respect of any lease, demise, sale, grant, transfer, or occupation of any of the crown lands, mines, minerals, or royalties of her majesty within the province, whether in the island of Cape Bretoruor in any other part of the province, of whatsoever nature or description ; and also all fees and payments and commutation therefor, at the office of the secretary of the province, received or payable, in respect of any writings, licenses, instruments, commissions, or patents, there made or issued, and on which fees were heretofore payable for the lieutenant fovernor and secretary of the province ; and lastly, all nes, penalties, and forfeitures, under any law of the pro- vince imposed and applicable for the use of her majesty. 3. All the right and title of her majesty, whether in ^'•^"f^^n^'' reversion or otherwise, of, in, to, and out of all mines, minerals. minerals, and oils whatsoever, within the province, in- cluding the island of Cape Breton, and also all rents and profits arising therefrom, are hereby assigned, transferred, and surrendered, to the disposal of the general assembly of this province, subject only to the existing rights of the lessees, and persons entitled under existing statutes, and of all persons claiming under them or any of them, and shall be managed, leased, disposed of, made available, paid and applied in such manner, and to and by such officers and persons and for such public uses and purposes as by any act of the general assembly for the time being shall be directed. 4. The general assembly may provide for the man- ^^^^ff^J'^J'^! aging, collecting, and receiving of the revenues, and other 3 i^ CtJSDOMS DtJTiES. [tAM 1. CiiAP. 8. matters hereby suiTendered and transferred, and for ap- pointing proper officers for the revenues. I oiiei-iion iJTo- 5. For the more easy collection of such revenues, the officers or persons charged with the collection or manage- ment of the revenue, may in the name of her majesty, biit to the use of the province, take all such lawful ways and means, by information, suit or proceeding atlaworin equity, as by or on behalf of her majesty, might be adopted in respect of the revenues, or any of the lands, mines, or royalties chargeable therewith, if the sui'render, transfer, and assignment had never been made for the use of the province. froceedsof g, ISrotliiniJr herein contained shall interfere with the crown lands t? tip pi i where paynhio grant, Sale, Icusc, Or disposal ot any oi the ungrantecl lands of the crown in this province, except only the mines and minerals hereinbefore specified by or on behalf of her majesty, b\it all sucli grants, sales, leases, or disposal of^ such ungranted lands, and the management, direction or conti'ol thereof, shall remain in such officers as her majesty shall deem proper, or as may be directed by any law of this province, and the nett proceeds only of such grants, sales, leases, or disposals of such ungranted lands, after deducting the necessary expenses of managing the same, shall be paid over to the treasury of the province ; but an account of such expenses shall be annually submitted to the general assembly, and the salary or allowance of the officers employed, and the expenses of the department, be subject to the control and regulation of the general assemblv, and no other or greater salarv or allowance or expenses shall be taken than such as shall be allowed thereliy. 7. This chapter shall continue in operation until eigh- teen months after the demise of her present majesty (whom God long preserve), and thereafter everything herein contained, and the transfer, surrender, and assign- ment hereby made, shall cease and determine. CHAPTER 8. Part tlie First. OF CUSTOMS DUTIES. "on'andXra: ^- '^^^^ chapter shall come into operation on the first iion of phnpter day of April, in the year one thousand eight hundred and sixty-four, and shall continue in force until the first day of April, one thousand eight hundred and sixty-five. TITLK III.] CUSTOMS DUTIES. 19 2. There aliall be collected and paid to her majesty for Chap. 8. the use of the province upon all goods brought into this Payment of province, by sea or land carriage, the several duties in ^^^J^es provided currency set forth in figures on the table hereinafter contained, denominated "table of duties," opposite the respective articles in such table mentioned, according to the value, number, or quantity of every such article. 3. The goods mentioned in the table hereinafter con- ^'^'^'iiptiuus' tained, denominated "table of exemptions," shall be free of duty. •4. The duties shall be collected, paid, and received, ^^!!''°'!~''°"'. 11 11 n 1.111 .. /. collected and ana the proceeds thereof applied under the provisions or applied, &c. the provincial statutes from time to time in force concern- ing the same. •5. The duties shall be collected, paid, and received J^^fJ^'^f^J'';,;-;:' '° according to the weights and measures in use in this province, and where in the table of duties, such duties are imposed according to any specific value, quantity or num- ber, the same shall apply in the like proportion to any greater or less value, quantity or number. 6. The duties shall be paid to the collectors of the J;"',,;^!'"' '-'''"'■ colonial revenue, and received at the office of the receiver general either in treasury notes or in current coin at the legal rate of tender. 7. Duties paid into the receiver general's office shall be ^[^^ ']";;™"?.i?'"' carried to account of the provincial revenue, and become i'nn.l'-'. ''"' part of the public funds, and shall be paid and applied only to such purposes as may be expressed from time to time in the provincial statutes coucerning the same, and shall in all cases be dra'wn only by warrant nnder the hand and seal of the governor. 8. The governor in council may, whenever it shall bo IrigoWrcM-tidee advisable so to do, declare by proclamation what articles, the 'produce or the growth and production of the British ISTorth American American "coio- provinces of Canada, l^ew Brunswick, Prince Ed^vard "'"-'' '"'^' Island, and JSTewfoundland, or any of them, may be im- ported into the province free of duty, and may declare in what manner and under what restrictions the same may be so imported. 9. jSTothing herein contained shall ope;'ate to impose emptod' uf^der duties on articles exempted from duty under the act for n'ot''?j^"cteV ■^' giving effect on the part of the province of Nova Scotia to a certain treatj^ between her majesty and the United States of America, passed in the year 1854. 10. Books, drawings, paintings, or prints of an im- ?°^":at'cha- moral or indecent character, are prohibited to be imported ractor prohibi- into this province, under a penalty of fifty dollars for each penalty. offence, and the forfeiture of the parcel or package of goods in which such prohibited articles may be found. 20 CUSTOMS DUTIES. [PAKT I. CnAV. 8. TABLE OF DUTIES. Apples, fresh or dried, per barrel, . . . $1 00 Ale, beer and portei-, in wood or bottles, per gallon, 06 Bacon, per cental or 100 Bbs., . . . . 2 00 Beef, salted, per barrel, 1 00 " fresh, per 100 Bbs., 1 00 Biscuit, tine, and bread, including crackers or cake, 100 lbs, 1 00 Butter, per 100 Bbs., 1 75 Burning fluid, per gallon, . . . . . 10 Candles, tallow, per B)., 03 All other candles, per Bb., . . . 08 Cassia and cinnamon, ground, per ib., . . 05 Cattle, viz., horses, mares, or geldings, each, . 10 00 E'eat cattle, viz., oxen, or other neat cattle, 3 years old or upwards, each, . . 7 50 Cows and cattle under 3 years old, each, 2 50 Sheep, each, .• . . . . . 75 Cattle — hogs, alive, over 100 lbs. weight, each, 5 00 of 100 lbs. weight and under, each 50 Cheese, per 100 lbs., Chocolate, or cocoa paste, per lb.. Coffee, green, per lb., .... roasted, burned or ground, per lb Flour (wheat) per bbl.. Ginger, ground, per lb., Geneva and whiskey, not exceeding the strength of proof by Sykes' hydrometer, and so in propor- tion for any greater strength than the strength of proof, per gallon, ..... Hams, smoked or dried, per 100 lbs. . Lard, per 100 lbs., Leather, viz., sole leather, including hides and skins partially dressed therefor, per lb.. Molasses, per gallon, . Onions, per 100 lbs., . Oil, viz., rock or coal oil, per gallon, Paraffine, per gallon, . Pears, fresh or dried, per barrel. Pork, salted, per barrel, fresh, per 100 Bbs.-, Pepper and Pimento, ground, per ib., Raisins, per B)., .... Rum, not exceeding the strength of proof by Sykes' hydrometer, and so in proportion for any greater strength of proof, per gallon. Spirits, viz., brandy, cordials, and other spirits, ex- cept rum, geneva, and whiskey, not exceeding the strength of proof by Sykes' hydrometer, and so in proportion for any greater strength of proof, per gallon, 1 00 03 04 05 25 04 70 00 75 04 05 50 10 07 00 00 00 04 02 40 90 TITLE III.] QUSTOMS DUTIES. 21 !0 50 1 50 2 GO 06 11 05 00 Spirits, or strong waters, not otlierwise enumerated. Chap. 8. not being pure alcohol, mixed with any ingre- dients, and although thereby coming under the head of some other denomination, with the ex- ception of varnish (in any package), shall be deemed spirits or strong waters, and shall pay a a duty per gallon of . . . . .1 Sugar, brown or muscovado, not refined, per 100 lbs., Candied, brown, crushed, and bastard facings, and refined, per 100 Sbs., Teas, souchong, congou, pekoe, bohea, pouchong, and all other black teas, per Bb., . Gunpowder, hyson, young hyson, twankay, and other green teas, per %., ... Tobacco, manufactured, except snuff and cigars, '^ lib. Tongues of cattle, dried or pickled, per 100 lbs., 2 Wines, viz., hock, constantia, malmsey, catawba, tokay, burgundy, hermitage, moselle, and champagne, per dozen of five bottles to the gallon, " 2 50 On all other wines in bottles, per dozen of five bottles to the gallon, . . . . 1 50 Port, sherry, and madeira, in wood, per gall., 60 On other wines in wood, costing twenty-four pounds sterling and upwards per pipe at the port from whence last imported, per gallon, 60 Other wines- in wood, costing less than twenty- four pounds sterling per pipe at the port from whence last imported, per gallon, . . 25 Clocks, and all wheels, machinery and mate- " rials used in their manufacture, Confectionery, syrups, and articles manufac- tured from sugar, 'y 20 00 Cigars and snuiF, Patent medicines, For every $100 of the value. Currants and figs. Leather, viz., boots, shoes, and leather manu- factures of all kinds, Upper leather of all sorts, including hides and skins partially dressed therefor, Meat, fresh, except beef or pork. Poultry of all sorts, dead. For every $100 of the value, Anchors, grapnels, and anchor palms, Cables of nemp or other vegetable substance, or of iron or iron wire, Cotton yarn, ). 5 00 Cordage, tarred or untarred, whether fitted for rigging or otherwise, For every $100 of the value, 10 00 22 CUSTOMS DUTIES. PART I.J Chap. 8, Iron, viz., in bars or bolts, pipes or .tubes, sheet^ iron, iron spikes, hoop iron, iron rigging, iron chains, clench rings, boiler plates, and iron knees for ships. Machinery of all kinds, for mills, steamboats, and manufactories, I cg qq Oakum, Pitch, Sail cloth of all kinds, canvas, sail twine, ready made sails and grummets. Tar, For every $100 of the value. All other goods, wares, and merchandize, not"^ otherwise charged with duty, and not I ^q qq enumerated in the table of exemptions, j For every $100 of the value, J TABLE OF EXEMPTIONS. Ashes, viz., pot ashes and pearl ashes. Asses and mules. Baggage and apparel of passengers, in use and not in- tended for sale. Barilla and soda ash. Beans. Bells, organs, or musical instruments for churches. Biscuit, or bread, viz., ship or navy. Books and pamphlets not px-ohibited to be imported into the tJnited Kingdom. Bristles and hairs used in the manufacture of brushes. Bullion, gold or silver. Burr stones. Coal. Cocoa. Coin. Copper, viz., in pigs or bricks, old or worn, or fit only to be remanufactured. Copper: Yellow metal, composition and zinc, for ship sheathing, of a size forty-eight inches long by four- teen inches wide, and sheathing felt ; and copper, composition and zinc bars or bolts, nails, spikes, and clench rings used for ship building. Corkwood. Corn, viz., wheat, rye, Indian corn, barley, oats, rice, and buckwheat, unground ; barley meal, rye meal, In- dian meal, rice meal, oat meal, buckwheat meal, peas and beans. Cutch. Engravings and photographs. Fish, viz., fresh, dried, salted or pickled. Fish hooks. TITLE III.] CUSTOMS DUTIKP. 23 Fish oil, viz., train oil, spermaceti oil, headmattev and Chap. 8. blubber, iins or skins, the produce of fish or crea- " tnres living in the sea. Flax. Funiiture that has been in actual use, working tools and implements, the property of immigrants, or persons coming to reside in the province, and not intended for sale, not to include machinery, musical instru- ments and plate. Hay. Hemp. Hides, or pieces of hides, raw, not tanned, curried or dressed. Horns. Hops. Horses and carriages of travellers, and horses, cattle, car- riages and other vehicles, when employed in carrying merchandize, together with the necessary harness and tackle, so long as the same are actually in use for that purpose. Iron, viz., unwrouo-ht or pig iron, iron rails for railroads, scrap iron, and old iron fit only to be remaniifactured. Lime and limestone. Lines for the fisheries, of all kinds. Malt. Manures of all kinds. Maps and charts. Xets, fishing nets, and seines of all kinds. Ores of all kinds. Paintings. Palm oil. Pig lead, and old lead fit only to be remanufactured. Plants, shrubs and trees, Plate, of gold and silver, old, and only fit to be remanufac- tured. Potatoes. Printing paper, not less than demy size. Printing presses and tj'pes, and printer's ink. Hags, viz., old rags, old rope, junk, old fishing nets, and old canvas. Rosin. Sails, rigging, and ship materials, saved from vessels wrecked on the coast of this province, and saved from vessels owned and registered in the province, if w^recked on the coast of this province or elsewhere. Salt. Saltpetre, crude, for manufacturing purposeSi Sands of all kind. Seeds of all kinds for agricultural purposes. Sheathing paper for ships. Skins, furs, pelts or tails undressed. 24 CUSTOMS DUTIK8. [PART I. Chap. 8. Stones unmaniifactured, including slates. Straw. Statuary. Sugar of the maple. Tallow. Twines used in the fisheries. Tobacco unmanufactured. Tow. Turpentine, raw. Whale fin or bone. "Wood, viz., boards, planks, staves, square timber, shingles and firewood, but not to include woods used for dyeing. . Zinc, viz., zinc sheathing of a size forty-eight inches long by fourteen inches wide, intended for and to be used as sheathing for vessels, and zinc sheathing nails. Part the Second. OP A CERTAIN TREATY BETWEEN HER MAJESTY AND THE UNITED STATES OF AMERICA. Piftimbie. Whereas it is expedient to provide for giving effect, as regards this province, to the treaty between her majesty and the United States of America, signed on the fifth day of June, in the year of our Lord one thousand eight hun- dred and fifty-four : Power of gover- 1. The articles enumerated in the schedule to this nor to suspend, ^-^^^^^^y.^ ^^^^^ t]^e growth and produce of the IJnited States of America, shall be admitted into this province free of duty, so long as the treaty shall remain in force, any law, act, or statute, to the contrary notwithstanding, except that if at any time the United States shall, under the terms of the treaty, suspend the operation of the third article thereof, so far as this province is aftected thereby, then the governor of this province may, if he see fit, declare such suspension by proclamation, after which the exemption from duty under this chapter shall cease while such suspension shall continue ; but the governor may again, whenever such suspension shall cease, declare the same by proclamation, from and after which, such exemp- tion shall again take effect. !Further pro- 2. It shall be lawful for the governor in council, by any ceedings may t r- ^ n" "^ be taken. Order Or orders to be made tor that purpose, to do any thing further in accordance with the spirit and intention of the treaty, which shall be found necessary to be done, on the part of this province, to give full effect to the TITLE III.] CUSTOMS DUTIES. 25 treaty ; and any such order shall have the same eft'ect as Chap. 8. if the object thereof was expressly provided for hy this ' chapter. 3. The first eighteen sections of the chapter of this chap^wslfspln- series, " of the coast and deep sea fisheries," together with f^^^JJ^"^ "'**'-'' such provisions of all other laws, acts or statutes of this province now in force, as are contrary to, or inconsistent with, the terms and spirit of the treaty, are hereby declared to be suspended as regards citizens and inhabitants of the United States of America, and vessels, boats and crafts belonging to the citizens and inhabitants of that country, and shall continue to be so suspended, and not in force so long as the treaty shall continue and be in force ; any law, act or statute, to the contrary notwithstanding. SCHEDULE TO THIS ACT., Grain, flour, and breadstuffs of all kinds. Animals of all kinds. Fresh, smoked, and salted meats. Cotton wool, seeds and vegetables. Undried fruits, dried fruits. Fish of all kinds. Products of fish and all other creatures living in the water. Poultry, eggs. Hides, furs, skins, or tails undressed. Stone or marble in its crude or unwrought state. Slate. Butter, cheese, tallow. Lard, horns, manures, Ores of metals of all kinds. Coal. Pitch, tar, turpentine, ashes. Timber and lumber of all kinds, round, h6wed and sawed, unmanufactured in whole or in part. Firewood, plants, shrubs and trees. Pelts, wool. Fish oil. Rice, broom corn, and bark. Gypsum, ground or unground. Hewn, wrought, or unwrought burr or grindstohes. Dye stuffs. Flax, hemp, and tow unmanufactured. Unmanufactured tobacco. Rags. 26 excise duties. [part i. Chap. 9. CHAPTER 9. OP EXCISE DUTIES. Duty on ale and 1. All ale, porter, and other malt liquors, brewed -or '^""^'^' manufactured in this province, shall pay a duty of two cents per gallon. On tobacco, ci- 2. All tobacco leaf manufactured into tobacco, cigars, gars, and snuff. ^^ ^^^^^ within this provincc, shall pay a duty of one cent per pound. Lioenses-how ^ LicenscB for the brewing and manufacturing of ale, gran e , c. pQj^.|.gj.^ ^^^ othcr malt liquors, and for the manufacture of tobacco, shall be granted by the governor in council, and shall be as in form A. and signed by the president of the board of revenue or his principal clerk, and every such license shall expire on the first day of April in each year. Before any such license shall be granted, the party Boiid. applying for the same shall enter into a bond with two good sureties as in schedule B. Penalty for 4. Any pcrsou by himself, his servants and agents, ^thouUiMnsl. engaged in manufacturing or brewing ale, porter, or other malt liquors, or manufacturing tobacco, intended for sale, without a license first had and obtained, shall forfeit and pay a sum of four hundred dollars to be recovered in the name of her majesty the queen ; and each day he shall be so engaged shall be considered a separate offence and subject him to a further and like penalty. Machinery, 5. In addition to any penalty so incurred, the tubs, vats, fo?feited'!'' ° * utensils, and stock, about to be used for malting, with all ale, porter, and other malt liquor manufactured or brewed ;^ and the machinery and stock about to be used in manufac- turing tobacco, and all tobacco manufactured, found upon the premises of any person or persons who shall not have taken out a license as above provided, and who shall be discovered illicitly preparing or manufacturing any of the above named articles upon which duty is hereby imposed, may be seized and confiscated as provided in case bf the illicit importation, or possession of conti-aband or smuggled goods. St'de^lc'''^™ 6. Four times each year, viz., in the fii-st week of July, October, January, and April, every person having obtained a license for manufacturing or preparing any of the articles above named, shall file in the office of the board of reve- nue a return upon oath as in schedule C. of all the articles and goods and the quantities manufactured or prepared and liable to duty under this chapter, for the three months next preceding the first day of the month in which such return shall be made, in accordance with the condition of his bond, and shall thereupon pay over to the receiver TIXLH III.] BXCISE DUTIES. 27 general the amount of duty payable upon the articles so Chap. 9. prepared or manufactured and returned, or enter and ware- house the same, or the portion upon which the duties remain unpaid, and in case of exportation he shall be entitled to a drawback where the duties have been paid, Drawback. and the value of the goods so exported at any on^ time shall amount to forty dollars. In case of neglecting to make such return, or in case of false return being made, or in case of duties remaining unpaid which are due, the bond so given shall be forfeited. 7. Revenue officers are hereby authorized to enter into Power aud da- ^nd upon any premises or places where there shall be officers. reasonable grounds of suspicion that persons are engaged or about to engage in the illicit manufacturing or prepa- ring of any of the articles above mentioned, in the same way as provided in section two of the chapter " of the pre- vention of smuggling," and may also take an account of stock ; and they may also enter any building or the premi- ses of any person holding a license under this chapter, aud take an account of stock as provided by section four of the same chapter ; and the remaining provisions of such chapter for the seizure, condemnation, and confiscation of goods, and for the protection of revenue officers, are hereliv maide applicable to this act. 8. The board of revenue are hereby authorised to make 4c''iJow''mndp. any and all regulations which may be considered necessai-y for carrying out the objects of this chapter, and collecting the duties imposed thereby, and shall annex penalties for the breach thereof as maybe found requisite ; and all pen- pp^Jaitfe's"" °' alties recovered under this chapter may be appropriated as the board shall order. 9. Any false return made hereunder, shall, in addition Making false to any penalty herein provided, render the offender liable '''"™ p^''J'"^>- for perjury, and subject to the punishment therefor. 10. This chapter shall continue in force until the first Duration of act. day of April, in the year one thousand eight hundred and sixty-five. SCHEDULE. (A.) County of — ' License is hereby granted to A. B. of - in the county of , to brew and manufacture ale, porter, and other malt liquors, or to manufacture tobacco, [as the case may 6e] conformably to law, on his premises, situate, [here describe particularly the premises,'] imtil the ;first day of April, 186 Dated this ^^ day of.. ;^._.. A. D. 186 28 EXCISE DUTIES. [PART I. Chap. 9. (B.) Bond, common form, with two sureties, made payable to her majesty the queen for two thousand dollars. The condition of the above bond is as follows : "WTjereas a license has this day been obtained for [as the case may be.'] Now if the said A. B. shall make a true and correct return of all, [as the case may be] pay the duties by law imposed, and in all other respects comply with the provisions of the chapter of the revised statutes, third series, "of excise duties," then this bond shall be void, otherwise to be and remain in full force, virtue and effect. Signed, sealed, and delivered, ^ A. B. (seal.^ In presence of > C. D. (seal.) j E. F. (seal.) (C.) A return of all ale, porter, and other malt liquors brewed or manufactured ; of all tobacco manufactured, [as the case may be] by the undersigned, or for or on his account or benefit, within this province, between the day of , 186-, and day of 186- made in con- formity with, and under and by virtue of the chapter of ' the revised statutes, third series, " of excise duties." County of ss. I, A. B., do solemnly swear that the above and foregoing is a just, true, and full account and return of the entire number of gallons of , number of pounds of tobacco, [as the case may be] brewed and manufactured, or manufac- tured, [as the case may be] during the time above set forth, and that the foregoing return is made in conformity with the requisitions of the chapter above referred to, and that the same is correct and true. So help me God. Sworn to at this \ A. B. day of , A. D. 186-, before me J If there be a co-partnership firm, then the license, bond, return, and affidavit, to be adapted to the case, and the affidavit to be sworn to by one of the members of the firm. title iii.] board of revenue. 29 Chap. 10. CHAPTER 10. OF THE BOARD OF REVENUE. 1. Tlie receiver general shall be president of and to- r.onr.jof Eeve- getlier with the financial secretary and three other persons Bed. ""''"'™p°' to be appointed by the governor in council, shall constitute the board of revenue, the seats at such board to be considered honorary appointments, and the members to be sworn into office. 2. The board shall superintend the working and prac- TUeir pow^r tical effects of the revenue system, and report thereon to " '"' ' " °° the governor when requisite. They shall examine claims for drawbacks and grant certificates therefor when allowed, and shall direct and carry on prosecutions against delin- quent officers and their sureties, and also prosecutions for seizures, forfeitures, and breaches of the revenue laws, over which they shall have a general control, and they may remit penalties in whole or in part, and direct the restoration of property seized under such terms as they may deem just. and duties. OHAPTEE 11. OF THE APPOINTMENT AND DUTIES OP OFFICERS OP THE CUSTOMS. pointmeut of ctors. 1. The governor in council may define and alter the Apnoin limits of ports, and appoint for every such port one col- lector of colonial duties, who may also be empowered to act as landing waiter, guager, and weigher, and may appoint so manv aAiitional officers in anv port or place Appoiutmeni within this province as snail trom time to time be deemed tjon of addi- necessary for the due security of the colonial revenue, and *'°'=*i °™°'='''- for the prevention of frauds thereto ; and such officers shall be paid by warrant on the treasury at such rates as shall be fixed by the governor in council, subject to the revision of the legislature at the first ensuing session. 2. Every collector, except the collector at Halifax, and"^re|ilte"cd. shall, upon appointment, enter into a bond with two sureties in four thousand dollars for the faithful perform- ance of his duties ; the bonds shall be registered at length on the oath of a subscribing witness, in a book to be kept for that purpose by the provincial secretary, and if a 80 OFFICERS OF THE CUSTOMS. [PART I. Chap. 11. bond be lost, a copy thereof, taken from the registry and certified by the provincial secretary, shall be received in evidence. De»*h or insoi- 3. If either of the sureties shall die, become insolvent, Tency o Bure- ^^ rcmove from the province, the board of revenue shall require the collector for -n-hom he was surety to givei a new bond. g«*»o' books to 4. Collectors shall keep regular sets of books, wherein shall be entered all receipts and payments of money, per- mits for the .removal of dutiable goods, and certificates of drawback, which shall be regularly balanced and produced for inspection, with all entries and documents in their office, when called for by the financial secretary, the receiver general, or any person by them authorized, or the committee of public accounts, m^rns'^'iien^" ^' Collcctors shall, as soon as may be practicable, after madf. the termination of every quarter, transmit under oath their quarterly accounts, together with a list of permits given for the removal of dutiable goods, to the receiver e:eneral, and at the same time pay into the treasury the duties for such quarter. I'ov/d"'"'^'' *'" ^- ^poi^ their accounts being audited by the financial secretary, collectors shall be entitled to receive from the treasury a commission of ten per cent, on the duties by them paid in, not exceeding one thousand dollars in any one year. Penalty for act- 7. If a collcctor shall act as a merchant, commission rhlnt^™*"^ merchant, auctioneer, or dealer in dutiable articles, he shall for every offence forfeit two hundred dollars — one half to the use of the government, and the other half to the person sueing therefor — and no commission shall be allowed such collector on the duties by him collected for the year in which the offence shall have been committed. Proceedings on 8. If a collector shall rcsigu or be removed from of&ce remoTai!"'^ "^ he shall forthwith deliver over to the new collector all securities, books and papers, connected with the office, which may be in his hands, and shall immediately make up and return his accounts, and pay over to the receiver general all monies in his hands or dnm to him as collector. If he shall not render such accounts,' and pay over such monies within three months from his going out of office, he shall forfeit eight hundred dollars for the use of her majesty. ApTOintmeniof 9. The govcrnor in council may appoint landing g™agfer*s™. '^' waiters, guagers, and weighers, for the different ports, who shall receive for their services, in addition to any fees by law allowed, such sums as may be annually granted by the legislature. Duty of guagers 10. Guagers are required to ascertain, if possible, by ^nd th*ir fees. Qy^ter's calipers, or if not by the rod, the quantities of intoxicating liquor and molasses imported into the pro- TITLE III.J OFFICKRS OK THE CUSTOMS. ' 31 vince, and shall mark with au iron the quantity each cask Chap. li. contains, on the stave next the bung stave, or on the head ~~ of every cask, together with the initials of his name, and shall he entitled to receive therefor from the importers or owners the following fees, viz. : — for a puncheon or pipe, ten cents ; for a hogshead or tierce, six and two-thirds cents ; and for a barrel, three and one third cents ; and for other casks in the like proportion ; and in addition to such fees, except at the port of Halifax, ten cents for every mile they shall necessarily travel, computing the distance from the custom house to the place of guaging. Where moi'e than ten casks shall be guaged at one time and place, they shall only be entitled to the following fees : — ^for a puncheon or pipe, five cents ; for a tierce or hogshead, three and one-third cents ; and for a barrel, one and two- third cents, besides travelling fees. 11. The collector at Halifax shall give bond in four Bondof Halifax thousand dollars with two sureties in two thousand dollars - each, for the faithful discharge of his duties, and shall receive a salary of one thousand six hundred dollars. salary. 12. Such collector shall be appointed by the governor Appointment in council, and shall pay into the hands of the receiver fi?ai cofieetor?" general the whole duties which he shall receive on the day of receipt, or at such other time as the receiver general may direct. 13. The collectors of colonial duties may administer ^°i^f/ta°i„^'^' oaths, under afiy chapter, relating to the colonial revenue. Mthl. *""^'- 14. If any officer of the colonial revenue shall neglect Penalty fomeg- his duty he shall forfeit a sum not exceeding two hundred ^°* " "*^' dollars, and also the costs of the prosecution. 15. If any person shall illegally assume the duties or Penalty for iiie- exercise the functions of any officer of the colonial offic'e."^™'"'°^ revenue, he shall, for every offence, forfeit a sum not exceeding two hundred dollars and costs of prosecution, and in case of non-payment thereof may be committed to jail for a period not exceeding three months. CHAPTER 12. OP THE LAWS OF THE CUSTOMS. 1. Papers and proceedings connected with the entry Entry & ciear- and clearance of vessels and goods shall be made and had ^°°^ °""* "' in form and manner as heretofore, unless otherwise directed by the board of revenue, but any of them may be dispensed with by order of the governor in council. 32 LAWS OF THE CUSTOMS. [part 1. (hiAP. 12. Bonds by whom and how taken Samples for as certaining du- Questions of dates how regu- lated. By what law duties shall be computed and penalties re- covered. Limitation for recovering over-paid du- ties. Penalties for counterfeiting documents. Agent's autho- rity. Penalties for false declara- tions. forfeitures and penalties for re- moving forfeit- ed goods. 2. Bonds relating to duties required to be given in respect of goods or vessels, shall be taken by the collector in her majesty's name, and after the expiration of three years from the date thereof, or from the time, if any, therein limited for the performance of the condition, every bond not then in suit shall become void and be cancelled. 3. Revenue officers may take samples of goods vi^hen necessary for ascertaining the duties, and the samples shall be disposed of and accounted for as the board may direct. 4. Upon the iirst levying or repealing of any duty, or the first granting or repealing of any drawback, or the first permitting or prohibiting of any importation or expor- tation, the time of importation of goods shall be deemed to be the time at which the importing ship shall in due course be reported ; and the time of exportation the time when the goods shall be shipped on board the exporting ship. If any question shall arise in respect of any charge or allowance upon any ship exclusive of the cargo, the time of arrival shall be deemed to be the time at which she ought to have been reported, and the time of departure the time of her last clearance for the voyage. 5. Duties on goods imported before the coming into operation of an act imposing new duties, and whereon the duties have not been paid, shall be collected under the new law, but forfeitures shall be recovered under the law under which they were incurred, notwithstanding such law may have expired. 6. Duties overpaid or improperly charged shall not be recoverable after three years from time of payment. 7. If any person shall counterfeit or falsify, or know- ingly use or procure to be used when counterfeited or falsified, any document required under the revenue laws, or in use in connection therewith, he shall for every offence forfeit a sum not exceeding eight hundred dollars. This penalty shall not attach to any particular offence for which a penalty is otherwise imposed. 8. Officers may require persons applying to transact business for others, to produce a vrritten authority, and in default may refuse to transact business vsdth them. 9. If any declaration or oath required to he made under the revenue laws, shall be untrue in any particular, or if any person required under such laws to answer questions put to him by officers shall not truly answer such ques- tions, the person making such declaration, or refusing to answer or not truly answering such questions, shall forfeit a sum not exceeding two hundred dollars over and above all other penalties to which he may be liable. 10. All ships, boats, carriages and cattle used in the importation or removal of any goods liable to forfeiture, shall be forfeited ; and every person who shall knowingly TITLE III.] LAWS OK THE CUSTOMS. 33 assist in such removal, or harbor such goods, or knomngly Chap. 12. have them in possession, shall forfeit treble the value ' thereof, or a sum not exceeding four hundred dollars, at the election of the prosecutor, and the averment of such election in the information or libel shall be sufficient proof thereof. The forfeiture of a ship shall include her guns, boats, tackle, apparel and furniture ; and of goods, the package containing thein. , 11. All vessels and boats in or from which goods shall ^rfdte/m™' ' have been illegally imported, concealed, landed, or thrown be relieved by over, may be seized in the first instance, and shall be liable mte. to forfeiture ; and such boats and vessels may also, upon judgment against the master or other person on board for any penalty thereby incurred, be levied upon and sold under execution issuing on such judgment ; but the board on proof that the master and owners of the vessel were ignorant of such illegality, may relieve from the penalty in whole or in part, and on such terms as may be deemed right. 12. All goods and all vessels, boats, carriages, and seizing offloers, ..-, TTi°. /./.-, 1- 11 Board may re- quire written reports in detail Master to for- feit $200. So help me God. ■ collector of excise. master. 6. If the master shall not in all respects comply with the provisions of this section, or if the manifest or bill of lading, or copy thereof, be falsfe, or if the goods contained in any bill of lading shall not have been bona fide shipped, or if any bill of lading shall not have been signed by him or under his authority, or any such copy thereof shall not have been received or made by him, in either ease before leaving the place of shipment, or if any goods be unladen before report made, the master shall for every offence forfeit two hundred dollars, and the goods lauded without report shall be forfeited, and the ship shall be liable to h'e seized, and shall not be released until the penalty imposed on the master and the costs of seizure and detention are paid, unless otherwise ordered by the board. 7. It shall be competent for the board of revenue to require all masters of vessels to make written reports or manifests more in detail than heretofore, and in such forms as the board may from time to time approve. 8. Duitable goods found on board a vessel and not reported on entry by the master shall be forfeited, but the board shall remit such forfeiture whenever they are satis- fied that no fraud has been practised by the owners of the goods, and upon such terms as the board shall approve ; and the master by whom such defective report has been made shall- forfeit two hundred dollars. TITLB ni.J IMPORTATION OF GOODS. B9 .9 If the contents of any package intended for impor- Chap. 13. tation into another port, or for exportation, be unknown Duty of coueo- to the master, the officer may open and examine it, and if tentr'JjT pacS- deemed advisable for that purpose direct the same to be age unknown. landed ; and if any prohibited goods be found therein they shall be forfeited. 10. If a vessel having live stock or perishable articles on uve stock may deck shall arrive after business hours, the collector, guager fore"report- ^ or any landing waiter may permit the master to unlade the "■'^°°' same before report ; but report shall in such case be made as soon as may be after the next opening of the office. 11. The collector may permit the master of any steam- <5oods by , , IT 1 T • ii J? "^ steanaers may boat employed regularly in the conveyance oi passengers, be unladen and upon due report of such boat, to deposit the cargo in a *°*®''®'^- warehouse to be provided by the owner or agent of the boat and approved by the collector, the owner or agent having first given general security by bond with two sure- ties for payment of the full duties of importation on all such goods as shall be at any time so warehoused therein, or for the exportation thereof; and goods so deposited shall be deemed to be on board the importing steamboat, and shall be subject to the same regulations, penalties and forfeitures, as if they had not been taken thereout ; and the master or .owner of the steamboat shall have the same lien on the goods for freight or other charges as if the same had not been deposited in the warehouse, but shall not be entitled to any rent for the goods so deposited. The owner or consignee of the goods must make entry thereof within six days from the time of their being deposited in the warehouse. Provided that if a steamboat shall happen to arrive at night or before or after the appointed office hours, it shall be the duty of the collector or other proper officer, to attend until all the goods in- tended to be landed shall be safely deposited in the warehouse. 12. JTo rum, brandy, gin, or alcohol shall be imported -^^""t^'c ^°'^ or brought into the province by sea or inland carriage or navigation, in any cask or package not capable of con- taining at least one hundred gallons ; nor shall any such liquor in any smaller cask or package be exposed for Sale, or be in the possession of any person unless imported, or unless the same shall have been transferred to such smaller cask or package after it shall have been brought into the province, of all which the proof shall be upon the party in possession. Any person offending against any of the provisions of this section shall forfeit forty dollars for every such cask or package, and the liquor shall be forfeited. Nothing in this section contained shall apply to any such liquofs imported into the province from Europe, the British West Indies, or any of the British possessions in North America. But the board of revenue 40 IMPORTATION OF GOODS. [PART I. Chap. 13. may permit spirituous liquors to be imported in casks or packages containing not less than thirty gallons for such periods, and in such places as may be specified in the Board may or- order. The board may order forfeited liquors to be of M*ited''°" destroyed, having first ascertained the saleable value liquors. thereof by appraisement, and allovt'ing such compensation in respect of the seizure as they shall approve, and which shall thereupon be paid ou.t of the treasury. Attendance of 13. Ecvenuc officers may board any vessel an-iving, on^Sar^d"^"'"'' and stay on board until all the goods intended to be unladen shall have been delivered. They shall have free access to every part of the vessel, v^ith power to fasten down hatchways, the forecastle excepted, and to mark and secure any goods, as may be deemed advisable. If any place, box or chest be locked, and the keys withheld, the officer, if he be a landing waiter or seizing officer, or a collector, guager, or weigher, may open the same ; and if he be not an officer of that degree he shall send for his superior officer, who may open the same. If any goods be found concealed on board they shall be forfeited. K the officer shall place any mark, lock, or seal, upon any goods, and the same shall be wilfully altered, opened, or broken before the delivery of the goods, or if goods be secretly conveyed away, or if hatchways fastened down by the officer be opened or broken by the master, or with his assent, the master shall forfeit two hundred dollars. Directions in 14. When rcport shall be made that part only of the ent?y.°^ ^'"'"'' goods arc intended to be unladen at that port, the entry shall be confined to such goods, and entry outwards coast- wise shall be made of the goods intended for any other port ; and on arrival at any such other port the like pro- ceedings shall be adopted with respect to the goods there to be landed, as hereinbefore directed in respect of the goods landed at the first port. But if at any of the ports the residue of the goods shall be designed to be shipped out of the province, then entry outwards for exportation shall be made, and the regulations applicable thereto attached, imijorters en- 16. The importer shall within three days after the rymwai 8. q^^^j Qf ^hc sMp make entry inwards of all goods not intended for exportation in the same ship to parts out of the province, by delivering to the collector or other proper officer a bill of entry thereof, fairly written in words at length, containing the name of the importer and of the ship and master, and of the place within the port where the goods are to be unladen, and the situation of the warehouse if the goods are to be warehoused, and the name of the person in whose name the goods are to be entered, with the particulars of the quantity and quality of the goods and the packages containing the same with their marks and numbers, and whether the goods are of TITLE III.] IMPORTATION OF GOODS. 41 the production of British America or otherwise, and of Chap. 13. the number, guage, weight, measure or value v\pon which duties are payable thereon ; and shall also at the same time deliver two or more duplicates of such entry as may he required by the collector, in which all such siims and numbers may be expressed in figures, and the particulars in all such entries shall be written and arranged as directed by the collector, and one of such duplicate entries signed by the collector shall be the warrant to the landing tide waiter for the landing or delivery of the goods. If the importer do not make such entry within the time specified, the collector upon twenty-four hours notice to the owner of the goods, if known, may land the goods and deposit them in warehouse at the expense of the owner. 16. No entry or permit shall be deemed valid unless ^^***™"'^ the same shall correspond with the ship's report, and also with the manifest and certificate or other document respec- tively where the same are requisite, nor unless the goods shall have been properly and particularly described in such entry or permit. 17. The importer shall at the time of entry of any DuH«^'/g°^^''^« goods, either pay down the duties thereon, or having warehoused be- entered the same for warehouse, enter into the bonds in granted™' that respect prescribed by law, or otherwise a permit shall not be granted for the landing thereof; and the collector or other officer shall secure the same and cause them to be sold at public auction within twenty days thereafter, at such time and place as such officer shall by at least four days' public notice appoint for that purpose, and the proceeds shall be applied, first, in payment of the freight and of the charges occasioned by the securing and sale of the goods, secondly in payment of the duties thereon, and the surplus, if any, shall be paid to the importer or other person authorized to receive the same. 18. If any person other than the master of the ship f^^'^by'pOT'sp^nJ shall fraudulently make any entry inwards of any goods unaathorized without authority from the proprietor or consignee, he shall for every offence forfeit two hundred dollars. 19. No goods shall be unladen until entry made and ^""g'^^^'"' permit granted therefor ; nor shall any goods be .unladen except at a place where an officer is appointed to attend, unless authorized by the permit; nor shall any goods be unladen except in the presence of the officer or with his permission. But the board may make regulations for carrying goods coastwise. 20. All goods unladen contrary to law shall be for- ^"r'lyuSn felted. forfeited. 21. Where goods are liable to duty, according to the ^bie'^with'duty number, weight, guage, or measure thereof, upon the by number, report of the ship and cargo being made, the .collector Sden."' shall grant a permit for the unlading of the goods intended 6 42 IMPORTATION OF GOODS. [part I. ClIAP. 13. Entries by bill of sight in cer- tain case£- Goods abandon- ed for duties how disposed of. Abatement of duties allowed on damaged goods. to be landed at such place as shall be most convenient to the importer, and as soon as landed the collector shall cause the same to be weighed, counted, guaged, or measured, according as the duties are chargeable thereon, and shall cause casks or packages of spirituous liquors to be marked on their heads, with the name of the place whence they shall have come, with the contents, and the guager's surname, or otherwise, as the board shall direct; and shall cause a duplicate return in writing of the contents of each cask or package with reference to the numbers and marks, signed by the guager and weigher, to be filed in the col- lector's office ; and thereupon the importer shall make the entry. If any such goods shall be removed from the place named in the landing permit without a removal permit, they shall be forfeited. 22. If the importer or his agent shall subscribe a declaration before the collector or other proper officer, that he cannot for want of information make a perfect entry, the collector may receive an entry by bill of sight by the best description of the goods that can be given, and grant a permit for the landing thereof, and the same shall be at once landed, and at the expense of the importer searched by the proper officer, and in the presence of the importer if he shall desire it, and within three days after the goods have been landed the importer shall make perfect entry thereof, and in default the goods shall be taken to a ware- house, and if entry shall not be "made within one month thereafter they shall be sold, and the duties thereon, together with warehouse rent and other charges, shall be taken out of the proceeds, and the balance paid to the importer or owner. If any package shall have been landed from a vessel, and goods shall be found concealed therein packed to deceive the revenue officers, the package with all its contents shall be forfeited. 23. Whole packages of goods may be abandoned for the duties thereon payable, and shall in such case be described in a written notice of abandonment to be given to the collector, and thereupon the same shall be sold as directed by the board, and after payment of charges the duties shall be paid out of the proceeds and the balance be paid into the treasury. 24. If goods not charged with duty according to the number, weight, guage, or measure thereof, shall receive damage during the voyage, an abatement of duties shall be allowed proportionate to the damage, provided satisfactory proof be adduced to the board or officer acting therein under their directions, that the damage was received after the goods were shipped in the importing ship and before they were landed, and provided claim be made on the first examination of the goods. The officers of the revenue shall examine such goods, and make an abatement of TlTLB III.J IMPORTATION OF GOODS. 43 duties proportioned to the damage which in their opinion Chap. 13. they shall have received ; but if the officers be incom- petent to estimate the damage, or if the importer be not satisfied Avith the abatement by them made, the collector shall appoint two experienced and disinterested merchants, who shall at the expense of the importer examine the same, and subscribe a declaration on oath before the col- lector of what in their opinion the damage is, and the collector may make an abatement of duties in accordance therewith. 25. Where duties are charged according to the value luvoioea on on oi the goods, the importer or his agent shall declare on tified under oath what is the invoice price thereof at the place whence they were imported, and that he believes such invoice price is the current value thereat, and shall at the same time exhibit to the collector the original invoices, and certify on oath that they are the original invoices, and that they contain all the dutiable goods imported by or belonging or consigned to him in the vessel specified in the entry, to the best of his belief; or if he has not and cannot procure the original invoices he shall make oath thereof, and account for his want of the same, and shall also state on oath what he believes to be the current value of the goods at the place whence they v.'ere imported as near as can be ascertained. All such oaths shall be signed by the party attesting and be taken by the collector, or in case of his absence by his chief clerk or authorized substitute. 26. If it shall appear to the collector or other proper whCT6''gi°o^d5 officer that goods liable to duty according to their value, '^^^ under- have been valued below their real value under the last ^'''"^''' preceding section, he shall appoint two persons to examine the same, and such persons shall declare on oath before the collector, or other proper officer, at what, 'in their opinion, the same should have been valued, and the same shall be deemed the real value upon which duties are chargeable. Goods to be thus appraised may be taken to a public warehouse for that purpose at the expense of the importer. If the appraised value of these goods shall ex- ceed by ten per cent or more the value declared on entry, then in addition to all duty imposed by law, there shall be levied and paid a duty of twenty per cent advalorem on such appraised value ; but the duty shall in no case be assessed on an amount not less than the invoice value. The appraisers shall receive two dollars for their valuation, to be paid by the collector or other proper officer, and charged in his account. 27. The value of goods not chargeable with duties Prize goodB, according to the number, measure, guage, or weight '*"*'®^°°' thereof, brought into the province under the denomination of prize goods, or which shall, be sold by order of the court of vice admiralty, or which shall become forfeited, 44 IMPORTATION OF GOODS. [PAKT I. Chap. 13. Surplus Ptorcs liable to duty. Goods com- pounded of different mate- rials, duties on, how charged. Goods from Britain or Kri- tish posses- sions mns't liave been cleared out- wards. Land-bo rno ^oods liable to duty. Duties, when Say able at 'igby or An- napolis. "Where vessel receiving dam- age puts into a port; goods, how landed. shall, if the value thereof cannot be ascertained by the means hereinbefore prescribed, be ascertained by the gross price which the same shall bring at public auction. And all such goods, whether chargeable to pay duties accord- ing to value or to number, weight, guage, or measure, shall be sold at public auction within two_ years after importation, reasonable notice of the sale being given by the person charged therewith to the collector, and the purchasers shall be considered the importers and pay the duties thereon. 28. The surplus stores of vessels arriving in this pro- vince from parts beyond the seas, shall be subject to the same duties and regulations as if imported as merchan- dize ; but if it shall appear to the collector that such stores are not excessive or unsuitable, under the circum- stances of the voyage, he may permit them to be entered for the private use of the master or owner, or of any passenger to whom the same may belong, on payment of the proper duties, or to be warehoused for the future use of the vessel. 29. Where goods are manufactured or composed of different materials, they shall be charged with the highest duty to which any of the component parts are liable. 30. ITo goods shall be imported as from the united kingdom or from any British possession if any advantage attach to such distinction, unless they shall appear upon the cockets or proper documents to be duly cleared out- wards at the port of exportation in the united kingdom^ or such British possession, nor unless the grounds upon which such advantage is claimed be stated in the cocket or document. 31. Goods which might be imported by sea may be brought by land or inland navigation into the province from any adjacent British colony, and they shall be subject to the same duties, regulations, penalties and forfeitures as the like goods if imported would be subject to, so far as the same are applicable ; and if any goods shall be brought into the province contraiy to this provision, or if they shall be removed from the place appointed for the examination thereof by the revenue officers before the duties thereon shall have been paid, such goods, together with the vessel or carriage and cattle which shall have brought the same, shall be forfeited. 32. Vessels entering the gut of Annapolis may be reported and entered, and the duties on goods therein imported paid either at the ports of Digby or Annapolis. 33. If any vessel having received damage shall put into another port in this province than that to which she shall be bound, having dutiable goods on board which it may be necessary to land for the purpose of repairing the vessel in order to enable ber to proceed qri ^er voyage, TITLE III.] IMPORTATION OP GOODS. 45 the collector, upon application of the master or agent, Chap. 13. may permit such goods to be unladen and deposited in a warehouse in the custody of the collector ; and the collector shall cause to be taken an exact account of the packages and contents, and entry of the goods shall then be made by the master or agent as hereinbefore directed, and they shall remain in the custody of the collector until the vessel is ready for sea, when upon payment of storage and the reasonable charges of unlading and storing, the collector shall deliver up the same to the master or agent to be exported from the province under the same securitj^ and regulations as if such goods had been ftnported in the usual manner, and auch goods shall not be subject to duty. No person shall be entitled to the benefit of this section who shall have sold any of such goods, except such as it may have been necessary to sell to defray the expense of repairs and charges of the vessel, or as may have been authorized by the board. If goods are sold for payment of repairs and charges they shall be subject to duty, and shall be warehoused, or the duties thereon paid by the purchaser. 34. The owner or salvor of dutiable goods saved from Goods som for the sea, in respect of which any salvage shall have been Ixem^pled'from lawfully awarded or paid or agreed to be paid to the "^"'^^ salvors, may sell so much thereof as will pay the salvage, and upon production of the award, or satisfactory proof to the board of such payment or agreement therefor, the board shall allow the sale of goods free of duty to the amount of the salvage, or to such other amount as to them shall appear proper. 35. Goods derelict, flotsam, jetsam, or wreck, or landed i^ifie'to'^du""'** or saved from any vessel wi'ecked, stranded, or lost, brought or coming into the province, shall be subject to the same duties as goods of the like kind imported are subject unto; if of such sort as are entitled to allowance for damage, such allowance shall be made under the direction of the board. If any person shall have in his possession in port or on land any such goods, the same being dutiable, and shall not give notice thereof to the nearest revenue officer without unnecessary delay, or shall not on demand pay the duties thereon or deliver the same to the proper officer, he shall forfeit two hundred dollars and the goods be liable to seizure ; and if any person shall remove or alter, in quantity or quality, any such goods, or shall unnecessarily open or alter any package thereof, or shall abet any such act before the goods are deposited in a warehouse under the custody of the revenue officers, he shall forfeit two hundred dollars ; and if the duties on such goods are not paid within eighteen months from the time when the same were so deposited, the same may be sold in like manner and for the same purposes as goods imported may in such 46 IMPORTATION 6V GOODS. [PART I. Chap. 13. default be sold. If they cannot be sold for enough to pay the duty they shall be delivered over to the person entitled to receive them, and shall be deemed unenumerated goods, and charged with the lower duty accordingly; but any person having lawful claim to such goods, or being in possession thereof, shall be at liberty to retain the same in his own custody, on giving bond with two sureties appro- ved by the collector, in double the value of the goods for the payment of the duties thereon at the expiration of a year, or to deliver such goods to the proper officer in the game condition^as they were at the time of taking posses- sion, l^othing in this section contained shall extend to goods in the custody or under the maimgement of any commissioner for the Isle of Sable. ' Goods,- how. 3g_ -f^Q ofoods, except those allowed to be landed with- when and ■ini it f i •• i^ where to bs out permit. Shall be unladen ti'om any vessel arriving trom parts beyond the seas, or arriving coastwise with dutiable goods on Sundays or holidays, and such goods shall be unladen only in the day time, and between such hours as the board shall appoint, and such goods shall be unladen only in the presence or with the authority of the proper officer, and at the place expressed in the permit ; and no such goods after being unladen shall be transhipped, or after having been put into any boat to be landed shall be removed into any other boat or craft previously to their being landed, without the permission of the proper officer. Expenses con- 37. The Unshipping, carrvina:, and landinsr of firoods, nected with the t , , , . . Kf *" , •'.■,° i * r. °i j landing of aiid thc bringing the same to the proper place alter land- gornl! " ing for examination, and the putting the same into the scales and taking them thereout after weighing, shall be performed by or at the expense of the importer. i^nRGrLTBras 38_. Vesscls entering the Great Bras d'Or may be d'Or. required to be reported and entered at such place and in such manner as the board may from time to time direct. be opei^ed"'*'' ^^- "^^^^ package of dutiable goods may be opened by the collector of customs at his discretion, in order to ascertain the contents, and any goods found therein and not agreeing with the entry shall be forfeited, and packages intended to be so opened may be taken to a public warehouse for that purpose at the expense of the importer. ?orapouSded '^^- ^^^ liquors or liquid goods mixed, compounded, or liquors. adulterated abroad and so ifnported into this province, shall be liable to the same rate of duty upon the whole quantity as if the goods wholly consisted of that article, in the compound of which if imported separately, would pay the highest rate of duty ; but this provision shall not include varnish. title iii.] warehousing op goods. 47 Chap. 14. CHAPTER 14. OF THE. WAREHOUSING OF GOODS. 1. The appointment of wareliouses for the securing of ^.^Peho'™!"'"' goods liable to duty already established is confirmed, but may be annulled by the board of revenue. 2. The board may by order establish other warehouses o3tabiish''othei at any warehousing port, and may declare what goods warehousas may be warehoused therein ; and may also annul any orders. order establishing such warehouses, but all such orders shall be forthwith transmitted to the governor in council, and published. 3. The importer of any dutiable goods may warehouse *'°°ehous"e'd''* the same without payment of duty on the first entry and bond* thereof, on entering into a, bond to the collector with two ^"^'^' sureties by him to be approved in double the amount of duties, which bond shall be in the form now in use, and shall be otherwise made and executed as the board may direct; and if any of such goods shall be thereafter entered for home use the duties thereon shall be paid at the time of such entry, and at the same rate as if then imported and entered for the first time. If within two years from the date of the first entry the goods or any part thereof shall be sold, the collector may admit fresh security by bonds with sureties from the purchaser, and cancel the original bond or exonerate the parties thereto to the extent of the new security, but such new security shall not be given for a less sum than one-fifth part of the duties mentioned in the condition of the original bond. 4. If goods entered .for warehouse shall not be Goods entered deposited therein within the time and in the manner forMted^in''oOT> directed by the proper ofiicer, or shall afterwards be taken '^'^ "*'*'• out of warehouse without entry therefor, they shall be forfeited. 5. Upon entry and landing of any goods to be ware- ^"'y f °^,^" housed the proper ofiicer shall take a particular account goods for war«- thereof and mark the contents on each package, and enter °"^*' the same in a book to be kept for the purpose ; and no goods warehoused shall be delivered from warehouse except upon entry and under care of the proper officers for exportation, or upon entry for home use and payment of the duties. Whenever the whole of the goods ware- housed under any entry shall be cleared from warehouse, or whenever further time shall be granted for any such goods to remain warehoused, an account shall be made out of the quantity upon which the duties have been paid and of the quantity exported, and of the quantity, to be then ascertained, of the goods still remaining in the warehouse, Warehouse. 48 WAREHOUSING OF GOODS. [PAKT I. Chap. 14. deducting from the whole the quantity contained in any whole package which may have been abandoned for duties ; and if there shall be any deficiency of the original quantity, the duty, except as hereinafter provided, payable upon the deficiency, shall then be paid. Goods how 6. Goods warehoused shall, by or at the charge of the Inrid in ware^" owncr, be stowcd in such manner as that easy access may house. i^g j^g^^ thereto, under penalty on such owner of twenty dollars for every omission ; and they shall be stowed in such parts or divisions of the warehouse and in such manner as the collector shall direct, and the warehouse shall be secured in such manner, and visited only at such times, and in the presence of such officers, and under such regulations, as the collector, under the authority of the board, shall direct, be'toktn"*^ 7. The collcctor, under the regulations of the board or in his own discretion, may permit samples to be taken of goods warehoused, without entry and without payment of duty, except as the same may eventually become payable on a deficiency of the original quantity under the pro- visions of this chapter. ceTtSn Mte to° ^- The collector, under the regulations of the board or goods while in jn his own discretion, may permit the proprietor of goods warehoiised, at nis own expense to sort, separate, pack and repack the same as may be necessary for their preservation or more convenient disposal, and under the regulations of the board to draw off liquors into bottles or casks, and to mix brandy with wines, and to fill up casks of liquors from other casks thereof respectively in warehouse, and to rack off wines from the lees, or mix wines ; and ^he may also allow portions of goods so separated to be destroyed, but without prejudice to claim for duty upon the whole origi- nal quantity. Whole packages may be abandoned to the collector for duties, and shall not remain liable thereto. No portion of goods less than a whole package shall, how- ever, be taken out of the warehouse at any time. remoyedlvom ^- Groods warchouscd may, under the authority of the one warehouse coUector, be delivered on entry without payment of duty except for any deficiency, for removal to another ware- house in the same or another port in the province under bond to the satisfaction of the collector, or such other regulations as the board may make for the re-warehousing thereof or payment of duties thereon. «jSli"for*keei ^^- GrOods Warehoused shall be cleared for exportation ing goods ware- or entered for home use within two years from the first entry thereof; and if not so cleared or entered the collector unless otherwise directed by the board, shall sell the same, and the proceeds shall be applied — first to the payment of warehouse rent and other ch^irges, next of duties, and the sui-plus, if any, shall be paid to the proprietor. wareh^o°us^e^may H- When goods iu warchousc are sold, the seller shall give the buyer a transfer note containing the particulars of be transferred. TITLE III.] EXPORTATION OF GOODS AND DRAWBACKS. 49 the goods and the date of sale, and the purchaser shall Chap. 15. lodge the same with the warehouse keeper, who shall make a minute of the transfer in a hook to -he kept for the purpose, and which shall he produced on application. If this provision shall not he complied with, the goods, so far as respects the officers of the revenue, shall he held the property of the seller. 12. If goods warehoused shall, with the owner's sane- fj^e^ftl^M tion, he fraudulently concealed in or removed from the "j"» wmehous warehouse, they shall be forfeited ; and if the proprietor, or any person with his knowledge, shall fraudulently open the warehouse or gain access to the goods, except in the presence of the proper officer in the execution of his duty, or shall fraudulently adulterate, reduce ■ or increase the strength of liquors, such proprietor shall for every offence forfeit four hundred dollars. 13. If goods entered for warehouse, or for delivery ^"od.s%n"ered therefrom, shall, hy unavoidable accident, be lost or de- for warehouse, Btroyed either on shipboard or in the landing or shipping, certain casla. or the receiAring into or delivering from the warehouse of the same, or if any such goods shall be destroyed, or, being liquors, shall leak or evaporate while in the warehouse, the board may remit or return the duties thereon, but no abatement shall be made in respect of deficiency in quan- tity of liquors or of wastage in any article, unless the goods shall have been warehoused six months. 14. If the importer of any goods entered for warehouse Goods entered and landed, shall before the same are deposited in the re-eSed'Sr' warehouse, further enter the same or any part thereof for eumpoo™" home use or for exportation, as from the warehouse, the goods so entered shall be considered constructively ware- housed, and may be delivered for home use or for exporta- tion, as the case may be. 15. Goods warehoused shall continue liable for freight, I^ood^s'\°abre'^for as if on shipboard. freight. OHAPTEE 15. OP THE EXPORTATION OF GOODS AND OF DRAWBACKS. 1. Whosoever shall export any goods on which on their ^iiowed"'" entry inwards for home use the duties shall have been paid shall be entitled to a drawback of the whole amount, such goods being of the quantity or value for which a dra^^yback is allowed, and all drawbacks shall be under the manage- ment of the board of reventiei 7 50 EXPORTATION OF GOODS AND DRAWBACKS. [PART I. Chap. 15. Warehoused goods exported free of duty. N"o goods ex- ported till en- try and permit. Entry to be made of j^ooda t-ntered tor drawback. Penalty where unauthorized party enter.y goods outward. What a valid permit. Drawback allowed; on what granted. 2. All goods warehoused on the importation thereof may be exported from warehouse without payment of duty. 3. No goods on which upon exportation any drawback is intended to be claimed, and no goods intended to be exported from the warehouse, shall be laden until entry outward shall have been made and permit granted there- for ; and no goods shall be laden except at some place at which an officer is appointed to attend, and except in the presence or with the permission in writing of the officer; but the board may make sucb other regulations for carry- ing goods coastwise as may be expedient. All goods laden contraiy to the provisions of this chapter or to any such regulations shallbe forfeited. 4. The person entering goods outward for drawback or for exportation or from the warehouse shall deliver to the collector a bill or entry written at length, containing the name of the exporter, of the ship and of the master, and of the place where bound — the particular place within the port where the goods are to be laden, the particulars of the quality and quantity of the goods and the packages, their marks and numbers and the value thereof ; and the collector shajl thereupon grant his shipping permit, which shall be written upon or annexed to a copy of the entiy to be made by the exporter. 5. Upon the entry outwards of any goods from the warehouse, the exporter shall give a bond in double the duties, with two sureties that they shall be landed at the place for which they may be entered or accounted for to the board. 6. Every person who shall make entry outwards of goods for drawback or for exportation from warehouse, not being the proprietor thereof nor the master of the vessel, shall for every offence forfeit two hundred dollars. 7. ITo entry outwards nor any shix^ping permit, or permit for taking goods from warehouse for exportation, shall be deemed valid unless the particulars of the goods and packages shall correspond with the pai-ticulars in the entry inwards for home use or in the entry for warehousing, nor unless thej shall have been properly described in the entry outwards, by the character, denomination and cir- cumstances under which they were originally charged with duty ; and smj goods laden or taken out of the warehouse by an entry outwards or shipping permit not so corres- ponding or not properly describing them shall be forfeited. 8. A drawback of the whole duties upon goods on which the duties shall have been paid shall be allowed upon any quantity of wine not less than twenty-five gal- lons, or upon any quantity of spirits or other liquors not less than one hundred gallons, exported in the original packages, and upon any quantity not less than mree TITLE III.J EXPORTATION OF GOODS AND DRAWBACKS. 51 hundred weight of eoiiee, or any quantity not less than ten Chap. 16. hundred weight of sugar, or any quantity not less than two hundred gallons of molasses, or any quantity not less than five hundred pounds of leather, or any quantity not less than two hundred and fifty pounds of tea, three hun- dred pounds tobacco, and upon any amount not less than one hundred and twenty-five dollars of the original value of any articles charged according to the value. 9. Before any goods not exported from the warehouse fj^itPfo'^^ePfrti and being charged with duty according to the weight, fled by guager. guage, or measure, shall be laden for exportation, the shipping permit shall be exhibited to the guager and weigher, who shall thereupon, without fee, guage or weigh them before shipment, and certify on the permit the ■vffeight, guage, or measure thereof. 10. So soon as any goods so entered outwards, not 4S^b'''°er' being from warehouse shall have been actually laden, the sons entering master and exporter shall make an affidavit annexed to «°°'*» °"'"''"'<'' the entry that the goods are shipped for exportation and not to be relanded or disposed of in the province, and that the same, to the best of their knowledge and belief, were part of the stock of the person by whom they were entered for home use, and that the goods, if subject to ad valorem duties, are of the value stated in the entry, and that the same is the true value at the place from whence they were originally imported ; and shall specify the office where entered and the date of entry, and that they are of the same quality, proof and description as when imported or as described in the entry outwards. 11. If within one year from entry outwards there shall J'^j'fl;^'^'!^ "" be produced a certificate annexed to the shipping permit ». and signed by some principal officer of the customs or colonial revenue at the place to whieh the goods were exported, or if such place be a foreign country, of any consul or vice consul resident there, or an affidavit annexed to the permit of any person resident at the place and cer- tified by a notary public or magistrate, and in which certificate or affidavit it shall be stated that the goods were actually landed at some place out of the province, or that they were lost, or that the vessel had never arrived at her destination and was supposed to be lost, the bond shall be cancelled, or if the duties have been paid the board may allow the drawback thereon, and the exporter shall be entitled to receive the amount of the duties at the receiver general's office. All bonds not so cancelled within twelve months shall be enforced. 12. "Whenever dutiable goods shall be sent coastwise, H"« drawhar-k -. .-. ^ . I ,T T Obtained on nent the person to whom they are sent may export them and goJda > receive the drawback in the name of the importer ; but ™"^*"'''"' they must have been duly entered at the first port for exportation to the second port coastwise, and the shipping 52 EXPORTATION OF GOODS AND DRAWBACKS. [PART I. Chap. 15. permit granted, in which it shall be st|ted that the duties have been paid or secured at the first port, the importing ship's name, the place whence and the time when they were imported, the marks and numbers of the packages ; and all liquors must be in the original packages. Master delay- 13. If the mastcr of & vcsscl in which a part of the p°a|'tiae"waite°. imported goods are intended to be exported shall unneces- sarily delay unlading the goods intended for landing, or after unlading them delay longer than three days proceed- ing on the voyage, he shall pay every day to the tidewaiter employed the regular wages which would in ordinary cases be chargeable against the government, and the tidewaiter may recover the same before a justice of the peace, and the collector shall withhold the clearance until the same are paid, with costs, if incurred. , armylnd°navy 1^. AH tea, coffcc, browu sugar, flour, bread, cheese, exempt. oatmcal, peas, salted suet, vinegar, oil, raisins, currants, salted beef, salted pork, butter, and cocoa, and all articles required for the military hospital, imported and ware- housed or drawn from warehouse for the anny or the military hospital, or navy or naval yard, by any commis- sary or government contractor, and which articles shall be issued and used in such service, shall be exempted from duty ; and when they are required to be delivered from the warehouse the entry shall be made as for home use, and shall state that they are solely for the use of the army or military hospital, or navy or naval yard, and at the election of the board the duties shall be deposited, or a bond with two sureties and in double the duties shall be given to deliver them to the officer authorized to receive them for such service, and to account for them to the satisfaction of the board or for the duties thereon. and nav°"how^ ^^' ^V^^ ^hc dutics being lodged or security given a delivered from permit shall be granted, and the goods shall be delivered warehouse. fj-om warchouse in the presence of the revenue officer, and shall be conveyed and delivered in presence of a revenue officer to the commissary or other officer appointed to receive the same for the use of the army or military hospital, or on board of some of her majesty's ships, or into the naval yard, and ,a receipt therefor shall If not used in bc sigucd On the permit. If any of the articles or any dJ.'ty shaifbe portion of them shall not be issued or used in the service paid. for which designed, from being unsuitable or from any other cause, the duties shall be paid thereon, and an account thereof 'shall be returned to the collector under artioi™ used. Certificate of the proper officer. A return shall also be made to the collector by the proper officers of all of the said articles actually issued to and used by the troops in garrison, and as far as practicable actually used in her majesty's ships or the naval yard ; and no contractor shall be entitled to return of duties deposited except to the oods TITLE III.] EXPORTATION OF GOODS AND DRAWBACKS. 5S amount of duties on the articles comprised in such last Chap. 1.5 mentioned return, and when a bond has been given every no return of ~ contractor shall be bound .to pay the difference between goods spedSed the amount of such duties and the full amount of the m return as duties on all the articles so delivered from the warehouse. The board, of revenue may make such other regulations as Board may it may deem proper concerning articles delivered for the "eguuiUous. use of the army and navy ; and in every case, when the board shall be satisfied that the articles delivered from warej^use have been actually used by her majesty's troops or iRt^, the duties deposited shall be returned or the bond cancelled ; and this exemption from duty shall only ^^®™fPj'°° apply to articles delivered to the military or naval autho- L'^orighmf rities in the original package. ^"^ "'^*' 16. If any of the above enumerated goods shall be Drawback.-, shipped for such service after the duties have b6en paid, a on shipment of drawback of the whole duties shall be allowed; but a ''"*^°°'''' permit for the delivery of them for such use, specifying the quantities thereof, with marks, numbers, or packages containing the same, shall have been first obtained from the collector, and the goods shall be conveyed and delivered in manner as in the preceding section prescribed for goods taken from warehouse, and the like receipts on the per- mits, and verification thereof made ; and thereupon the amount of the duties paid thereon shall be repaid from the provincial treasury. 17. "Where such goods are charged with duty according Goods shaii bo to the guage, weight, number or measure, they shall be leifhedTff so guaged, numbered, or weighed, and marked, and the Jj^Jf^^ed witii drawback paid accordingly. 18. If such goods shall be fraudulently, relanded in this if reianded in province, or applied otherwise than for such use, they shall thejffii"bl be forfeited ; and every person concerned therein shall forfeited. forfeit two hundred dollars. 19. The board may, upon the application of the officer officers' wines in command of any ship of war about to leave the pro- SSaS^lcense vince, grant a license to purchase for the use of the officers fi'om board. so many gallons of wine as shall be approved by the board as adequate to their supply for three months ; and the name of the person from whom such wines are to be pur- chased shall be therein inserted. 20. The person selling the wine shall obtain the permit Bonds for suoii and ship them according to the regulations, and the officers clntl, or'draw- for whose use they have been purchased shall certify that tack allowed. they are actually on board of the ship ready for sea, and that no part shall be re-landed. The certificate, with the license, shall be delivered to the collector, and the bond on exportation from the warehouse shall be cancelled, or if the duties have been paid the drawback shall be allowed. 21. Wines may be delivered from warehouse in the Army officers' original package for the use of the officers of the army in ^^'"^^' *"■ 54 EXPORTATION OF G00D3 AND DRAWBACKS. [PART I. Chap. 15. When agent may enter, ic. Drawbaclc ivhen not al- lowed. Agents may ex- port and re- ceive draw- backs from per- sons abroad. Board to make rules respect- ing exportation of liquors. Goods entered for exportation forfeited if re- landed or not forwarded as cleared. Penaltv for false doeu- ments to get drawbaeks. the regimental messes in Halifax in the manner and sub- ject to the returns, restrictions, and regulations in the preceding sections relating to articles delivered from warehouse for the use of the army, and the duties deposited shall be returned or the bonds cancelled on the certificate of the proper officer that the wines have been actually used by the officers in their regimental messes, and only as respects so much of the said wines as have been so used. 22. If a proprietor of goods shall be resident^Ipore than ten miles from the office of the collector at tJfe port of shipment, he may appoint an agent to make his entry and clear and ship his goods, or receive for him the draw- back on his certificate of drawback, if payable to him ; but the name of the agent and the residence of the pro- prietor shall be subjoined to the name in the entry and shipping permit, and the agent shall make the declaration on the entry which is required of the proprietor, and shall answer the questions* that shall be put to him. Any trading coi-poration or company may appoint an agent for the like purposes. 23. No drawback shall be allowed unless the goods be shipped within two years after the payment of the duties. 24. If any goods which are to be exported for draw- back be the property of a person residing abroad, having been consigned to some person residing in this province to be exported on account of the owner, such person may, as agent of the owner, enter, clear, and ship them, and receive the drawback tbereon. 25. The board may make rules with regard to the exportation of any spirituous liquors on which a drawback shall be claimed, and for ascertaining the strength thereof for the allowance of the drawback, and for the prevention of fraud. 26. If any goods entered for exportation from ware- house, or for drawback, shall not be duly exported to the place for which they were cleared out, or shall be relanded in this province, such goods not having been diily relanded as short shipped or for other just cause, or shall be carried to New Brunswick or Prince Edward Island, not having been entered and cleared direct thereto, such goods shall be forfeited, together with any vessel or boat used in the infringement of this section ; and all persons concerned in the violation of this section shall forfeit double the value of the goods. 27. If any person in this province shall give any docu- ment in writing stating that goods have been landed in the province for the purpose of enabling any person to obtain a drawback thereon in the United'States or in any of the colonies or provinces of North America, he shall, if unable to prove that the goods specified in such docu- TITLE III.] PREVENTION OF SMUGGLlNfi, 55 ment have paid the duties thereon in this province, for Chap. 16. every offence forfeit four hundred dollars. 28. All officers passing exportation bonds shall report officers to to the board of revenue once in every three months, a list raports^Iff "^' ^ of all bonds remaining uncancelled after the lapse of twelve *"""'^' months from the date of execution, with a view that the penalty of such bonds be strictly enforced. 29. Upon the representation of the board, the governor wiiou governor in council may suspend the operation of any regulation in ?oguintK" this chapter for so long a time as may be deemed proper. OHAPTEE 16. OF THE PREVENTION OF SMUGGLING. 1. The officers of the revenue may go on board any officers of reve- vessel within any port in the province and search her for Tesa^t^ *'°'"^'^ prohibited and customed goods, and also on board any vessel being within one league of any of the coasts, and stay on board while she remains in port or within such distance ; and if she shall continue hovering for twenty- four hours after the master shall have been required to depart, the officer may bring her into port and search her and examine her cargo, and examine her master upon oath touching the cargo and voyage ; and if there be any prohibited goods on board, the ship and cargo shall be forfeited, and if the master shall not answer the questions demanded of him or shall not truly answer the same, he shall forfeit four hundred dollars and the ship shall be liable to seizure, and shall not be released until the penalty imposed on the master and the costs of seizure and deten- tion are paid. 2. Any revenue officer having first made oath before a officers may justice of the peace that he has reasonable cause to suspect fncMtoiuSa that goods liable to forfeiture are in any j)articular building, ""^ ^°'^- may m company with the justice who is hereby required to accompany him, enter such building at any time between sunrise and sunset, but if the doors are fastened then admission shall be first demanded, and the purpose for which entry is required declared, when, if admission shall not be given, the justice shall order the officer forcibly to enter, andwhen in either case entry shall be made, the officer shall search the building and seize all forfeited goods. These acts may be done by a revenue officer 56 PREVENTION OF SMUGGLING. [part I. Chap. 16. Officers of reve- nue may have a writ of assist- ance. Collectors may enter shops and take account of stock- Penalty for obstructing officers. Custody of goods seized. Condemnation. Information. Proceedings before justice. without oath, or the assitance of a justice of the peace in places where no justice resides, or where no justice can be found within five miles at the time of search. 3. Under the authority of a writ of assistance, which upon application of the board of revenue and due cause shewn, shall be granted by the supreme court or by any judge thereof and be in force for three months, any revenue ofiicer, taking with him a peace officer, may enter any building or place in the day time, and search for and seize any goods liable to forfeiture, and if necessary for that purpose, break open any doors and packages. 4. Every collector may at any time between sunrise and sunset enter into any building of any person dealing in dutiable goods and take an account of his stock, and if he shall refuse to open the door or shall obstruct the officer, he shall forfeit four hundred dollars. 6. If any person shall obstruct a revenue officer em- ployed as hereinbefore mentioned, or any person assisting him, he shall be guilty of a misdemeanor and be punished in the discretion of the court. 6. All goods seized under the revenue laws shall be forthwith placed in custody of the nearest collector, and secured by him under the directions of the board, or if seized by any officer in charge of any revenue vessel, shall be retained on board thereof until arrival at Halifax, and shall be held to be condemned, and may be sold without further proceedings, unless the person from whom they were seized or the owner of them, or some person on his behalf, shall within one month from the seizure, give a written notice to the seizor or to the collector in whose custody they are, of claim thereto. If claim be made within the month, then, subject however to the control of the board, the collector shall forthwith thereafter have the articles valued by three sworn appraisers who shall sign the valuation, and if it shall amount to one hundred and sixty dollars or upwards, an information shall be filed in the supreme court, otherwise an information in writing, if the seizor think proper so to proceed, may be exhibited in the name of the collector before two justices of the peace, charging the articles seized as forfeited under some parti- cular section and chapter to be therein referred to, and praying condemnation thereof, and the justices shall there- upon is^ue a summons for all persons claiming interest in the seizure to appear at a certain time and place there to claim the articles or answer the information, otherwise the articles will be condemned, and a copy of the summons shall at least eight days before the time of appearance be served upon the person fi-om whose possession the things were taken, or shall be left at or affixed to the building or vessel if there remaining; or at two public places nearest the place of seizure. If any person shall appear to answer TITLE III.] PREVENTION OP SMUGGLING. 57 the information, the justices shall hear and determine the Chap. 16. matter and acquit or condemn the articles, but if no person appear judgment of condemnation shall be given. The justices on condemnation shall issue a warrant to the collector to sell the goods. 7. If either party be dissatisfied with the decision of ^,K'j*° ^^ the justices, he may appeal to the supreme court at its ' next sitting in the county, and such shall be allowed upon security by bond being given to the satisfaction of the justices to abide the decision, which security, if the claimant appeal shall be in double the appraised value of the articles, but not less in any case than eighty dollars, and if the prosecutor appeal the security shall be in eighty dollars, and the proceedings shall be sent to the supreme court, which shall hear and determine the matter in a summary manner, and confirm or reverse the judgment with or without costs, and if there be judgment of con- demnation, shall order the sale of the articles. 8. Where articles are condemned and liable to be sold, coudemnea the collector shall forthwith sell the same at public auction, dispole'd oT giving at least five days notice thereof by advertisements posted up in at least five of the most public places in the county or such other notice as the board may direct ; but the board instead of such sale may direct the articles to be destroyed. 9. The collector out of the nett proceeds of the sale Proceeds, how after paying the expense of the proceedings, shall pay one- ^'^^ " ' half part to the seizor and the remainder as the board shall direct, and the board may thereout grant a further sum to the seizor, or may recompense the informer, or any person assisting in the seizure. 10. If on the trial of any information or suit brought Eeguution aa on account of any seizure made under this chapter judg- ment shall be given for the claimant and the judge or court before whom the cause is tried shall certify on the record that there was probable cause of seizure, the claimant shall not be entitled to costs, nor shall the seizor be liable to any suit or prosecution on account of the seizure ; and if on the trial of any suit or prosecution brought against any person on account of any such seizure, judgment shall be given against the defendant, and the judge or court shall certify that there was probable cause for the seizure, then the plaintifi', besides the thing seized or the value thereof, shall not be entitled to more than four cents damages nor to any costs, nor shall the de- fendant in such prosecution be fined more than twenty cents. 11. The officer may, within a month after notice, J™^|^g°*' tender amends to the party complaining or his attorney or agent, and may plead such tender. 58 DI&TILLEIilKS. [PAKT I. Chap. 1 7. Penalties upon masters of vessels and others. Vessela seized how prosecuted Court may order delivery. Operation of regulations, how suspended 12. The master and owner of any vessel in which dutiable goods shall have been imported from any place without the province, such goods not having been ware- housed or the duties paid thereon according to law, shall, over and above all other penalties to which they are liable, each severally forfeit for every offence not less than forty dollars, nor more than four hundred dollars, and shall also be jointly and severally liable for the duties ; and every person concerned in importing into this province, or in bringing in, *mporting, landing, or receiving into this province, or having knowingly in his possession any such goods whereon the duties have not been paid, or which have not been warehoused, shall, for every offence over and above all other penalties to which he is liable, forfeit not less than forty dollars nor more than four hundred dollars, and be liable for the duties. 13. Vessels seized as forfeited may be prosecuted in the name of the attorney general or solicitor general, or any officer of the provincial revenue under authority of the board of revenue, by information in the supreme court. A copy of the information nailed on the mast or other conspicuous part of the vessel shall be notice to the owner and other persons interested ; and if no claim be made at the expiration of a month, judgment of condemnation by default may be entered, and the vessel, her boats and appurtenances, be sold under execution. In the informa- tion it shall only be necessary to state concisely the cause of forfeiture and the chapter and section under which the forfeiture is charged. The court or a judge shall have power wlien a claim has been made to order delivery of the vessel on sufficient surety to respond the judgment and the value of the vessel. 14. Upon the representation of the board the governor in council may- suspend the operation of any regulations in this title for so long a time' as may be deemed proper. CHAPTER 17. OF DISTILLERIES. Distilling un- lawful. Penalties. 1. It shall not be lawful hereafter in this province to distil, manufacture, or rectify, any alcohol, rum, gin, or other intoxicating liquor or strong waters. 2. Any person violating the provisions of the preceding section, or suffering the same to be violated on his premi- ses, shall be liable to a penalty of not less than two thousand dollars nor more than six thousand dollars. TITLE III.] LIGHT HOUSK DyTIKS. .")9 3. Places fitted or suspected to be fitted for the diatil- Chat. 18. lation of intoxicating liquors, or for tlie manufacturing or piaces wttecF rectifying of alcohol, rum, gin, or other intoxicating .'''"a .s^m'^hli.'L'' liquors or strong waters, may be entered and searched by any revenue ofiicer, or by any person speciall}' authorized by the board of revenue, and who in making such search is authorized to disconnect and remove machinery, vessels, May disoon- and implements, and remove partitions, raise floors, and i'e«*"'=>"'"'"''^' otherwise dismantle the premises, as far as may be neces- sary for such search, and who may seize and remove all machinery, vessels, and implements of every kind used in such distillation, manufacture, or rectification. 4. All alcohol, rum, gin, and other intoxicating, liquors Liciuorsmaybe or strong waters distilled, rectified or manufactured in this tllteA. *° provmce, may be seized and forfeited in the same manner and by the same proceedings as if the same were smug- gled. 5. Intoxicating liquors and strong waters in this chap- J'orter, aie, ter shall not include porter, ale, beer or cider. included. CHAPTER 18. OF LIGHT HOUSE DUTIES. 1. Vessels registered in the province shall on their fii'st ^^^e^^p duties on voyage pay ten cents per ton to the collector of the colo- ?e°3,-how ' "' . nial revenue, or other person in that behalf appointed by *"'°'"'*''- the governor in council, who shall deliver to the master a certificate thereof, which shall exempt the vessel from further payment until the first day of April then next ; and such vessel shall not be cleared at the custom house without production of the certificate ; but new vessels registered in this province leaving the province on their first voyage, shall be exempted from duty unless they again return ; and new vessels cleared on their first voyage after New vessels the first of September and returning to the province, shall <"^«'™p*- be exempted from further payment of duty until the first of April next following on payment of one-half the amount of the above duty. 2. Other vessels coming into the province shall pav on i^'gh' duties on -L •/ otficr V6SSCls their arrival ten cents per ton to the collector or other person appointed as hereinbefore mentioned, who shall grant a certificate thereof which shall exempt them from further duty until the first day of April then next. 3. Vessels passing through the straits of Canso without Light duties on the certificate hereinbefore mentioned, shall pay ten cents througVclnso. 60 LIGHT HOUSE DUTIES. [PART I. Chap. 18. per ton ; and a certificate thereof shall be granted which shall exempt them from further payment until the first day of April then next, govlrament 4. This chapter shall not extend to vessels or steamers employes- belonging to or in the service or employment of her ^""^^ ' majesty's government, excepting steamers not belonging to her majesty and carrying mails, which shall pay dfuty, and shall not extend to any ships of war of foreign governments. commission. 5. The pcrson receiving the duty shall pay the same into the provincial treasury, deducting five per cent for his commission. nmvpaySent. 6. If the master of any vessel liable to duties hereunder shall refuse to pay or depart without paying the same, he shall forfeit twenty dollars, to be recovered with the duties in the name of the ofiicer. rized" "■" °' 7. If the master shall not pay the duty when duly demanded, the officer shall seize the vessel and detain her until the same, together with the penalty of twenty dollars, is paid. ^ay''an''adcu-'° 8. All shlps, whcthcr Sailing ships or steamships, navi- i-iml of"a°pen- g^^ug from any port or ports in this province to any port ny Der ton on or ports in the United kingdom ; eacnoyaga. ^^ ships, whether Sailing ships or steamships, naviga- ting from any port or ports in the united kingdom to any port or ports in this province ; All ships, whether sailing ships or steamships, bound from any port or ports in this province upon any trans- atlantic voyage ; and all ships, whether sailing ships or steamships, arriving at any port or ports in this province after any trans-atlantic voyage, shall pay to the collectors of the colonial revenue, or other persons appointed in that behalf by the governor in council, in addition to the light house duties under foregoing section payable, a toll ©f one-sixteenth part of one penny sterling per ton of the burthen of every such ship for every such voyage ; to be applied towards defraying the expense of maintaining the light house now erected on Cape Race, in the island of l^ewfoiindland. p^dTt'port'of 9. Such toll shall not be collected from the master or clearance. owucr of any ship arriving at any port in this province from any of the voyages above mentioned, if such master or owner shall produce a receipt for the toll for such voyage, signed by any officer appointed to receive such toll in the port of clearance or other port in the united kingdom or British possessions. Sed^^rap- 1^- Such toll shall be collected in manner prescribed plied. for light house duties by this chapter, and when paid into the treasury as therein prescribed, shall be transmitted, under the authority of the governor in council, to the board of trade, to be applied for the purpose mentioned in the eighth section. TITLE III.] LICBNSB SALE INTOXICATING LIQUORS. 61 11. A voyage under next preceding three sections shall Chap. 19. be construed to mean a single trans-atlantic passage. Meaning of 12. This chapter shall remain in force until the first of DlJaffouof act. April one thousand eight hundred and sixty-five. OHAPTEE 19. » OP LICENSES FOR THE SALE OF INTOXICATING LIQUORS. 1. The sessions in each county, upon the recom- cieiks of th» mendation of the gi-and jury, shall annually appoint as pSmenrof many clerks of the license as they may think fit, and shall *"• define the districts within which they shall exercise their authority, and such clerks of the license shall give bonds to her majesty with such sureties and in such penalty as the sessions may direct, for the faithful performance of their duties, and shall be sworn into office ; and such officers shall be appointed although no licenses be granted in the county, provided that if the person so appointed shall die, refuse to act, remove from the county, or from any other cause whatever shall be unable to act, a special sessions for the county shall, upon the requisition of any three freeholders addressed to the custos requiring him to call such special sessions, meet and appoint a suitable person to fill such office, subject to the conditions above mentioned. 2. l^To intoxicating liquors shall be sold in quantities no intoxicating less than ten gallons, to be delivered at one and the same said°witi?out , time, unless in the original package in which imported, In OTigin1d°''^'' such original package not to mean bottled liquors in P^'^ualttties'^ quantities less than ten gallons, or by license, under the above ten gai- foUowing penalties : for the first ofi'ence ten dollars, or Pe"naity. imprisonment for twenty days in the county jail in event of non-payment of fine; for the second offence, twenty dollars or thirty days imprisonment ; for the third offence forty dollars or sixty days imprisonment ; and for every subsequent offence eighty dollars or three months im- prisonment ; and no such liquors shall be sold in the city of Halifax without license, unless in the original packages in which the same are imported, and when any intoxica- ting liquors are imported or sold in bottles contained in casks or cases, such casks or cases shall be considered the original packages. 3. Licenses may be granted by the sessions upon the Licensee, how recommendation of the grand jury, except in the city of s'""*®"^' 62 LICENSK SALE INTOXICATING LIQUORS. [PART I. Chap. 19. Halifax, where they may be granted agreeably to the acts incorporating the same ; but such recommendations shall be rejected in whole or in part by the sessions, who shall have power from time to time to determine the periods at which licenses for the sale of intoxicating liquors shall commence and expire ; but no license to sell liquors shall be issued or granted to any person who now does or here- after shall keep a brothel or house of ill fame ; but in any county in which the majority of the sessions may be dis- posed to grant licenses to sell intoxicating liquors for bever- age purposes, they shall nevertheless withhold such licetise in any polling district when a majority of the ratepayers When sessions petition the sessious against the granting of such licenses, licenses. and such decision shall remain in full force and effect until reversed by a majority of the ratepayers upon real or personal estate in any polling district where such action shall have been taken. Kinds of. 4. Licenses shall be of the following kinds, viz. : tavern licenses and shop licenses, and in the city of Hali- fax'and town of Pictou there may also be granited general licenses to persons holding tavern or shop licenses. '^'"■"i-' "f- 5. Licenses shall be in the form in schedule A. Puty, iiow fixed 6. The courts of sessions in the various counties, and the cit}"^ council of Halifax, shall fix the amount of duty to be paid for each class of license and the fees to-be paid to the clerk of license and clerk of the peace for issuing the same, and also the commission to be paid to the clerk of license for collecting and paying over such debts. Duty « hen paid J. Evcry persou to whom a license shall be granted shall, before receiving the same and within fifteen days . after the sitting of the sessions granting the same, pay Bond. down the whole duties, and shall also enter into a bond with two sureties in the form in schedule B, which bond shall be prepared by the clerk of the licenses, and when executed shall be filed with the clerk of the peace. Free licenses. g. Liccnscs frcc of duty, or upon payment of a less duty than that by law imposed, may be granted to persons living on public roads little frequented, to encourage them in keeping public houses for the accommodation of travellers. Justices and 9. No justice of the pcacc or coroner shall hold a coroners pro- , ^ ii. -^-ii. hibited. tavcm Or general license, or shop license. HclnS °^ ^^- *^® clerk of the peace and clerk of the licenses shall each register in a book to be kept for that purpose a list of licenses, with the dates of such licenses, the names, additions and residences of the parties so licensed, and a memorandum of the houses or shops for which such licenses were granted, and a statement of the number of bonds taken and of the amount of duties paid, and such books shall be exhibited when required to the sessions and grand jury. TITLE III.] LICENSE SALE INTOXICATING LIQUORS. G3 11. If any person holding a tavern license shall not Chap. 19. within ten days after obtaining the same, place a sign on Tavern must the tavern with his name thereon, importing that liquors ^^^ ^'S"- are there to be sold, and that entertainment for man and horse can be there had, he shall forfeit a sum not exceeding ^^"''"y- twenty dollars, and the neglect to do so for every ten days after 'every conviction, shall be deemed a fresh ofience. 12. If any person not having a license shall place on Pennityiorsign %i X CD J. ^ ^ when no any building or in the neighborhood thereof, any mscrip- license. tion importing that intoxicating liquors may be had there, he shall forfeit a sum not exceeding twenty dollars ; and every continuation of such inscription for ten days after conviction, shall be deemed a fresh oiFence. 13. If any person holding a tavern license shall not ^o"keip1i[s' maintain good order on the premises, or if he shall permit order. raffling or gambling thereon, or shall on Sunday permit Gambling, *c. persons other than lodgers or persons coming for necessary Drinking on victualling only, to remain about the premises drinking or Sunday. idly spending their time, or where not holding a general license also shall permit anything other than victuals and Expo.sing drink usually consumed in a tavern to be exposed for sale goods for .sale. on the premises, or shall not have reasonable accommoda- . ^ tion for travellers and their horses, cattle and conveyances, commodat'on. he shall forfeit his license and a sum not exceeding forty dollars for every offence, in the discretion of the court before which he shall be convicted. 14. If any person holding any license shall sell any seiiing iiquor intoxicating liquors on Sundays, except in the case of °" ' "" "' ' tavern keepers, to lodgers on the premises, he shall incur the like forfeiture as mentioned in the last section. 15. 1^0 person holding a shop license only shall sell shop license, less than one gallon of intoxicating liquors, to be delivered ^&c. ""^ '°"*° ' at ,one and the same time, or shall suffer any intoxicating liquors to be drank on the premises where sold, or any such premises to be opened on Sunday, under the same penalty as that mentioned in the thirteenth section. 16. No person shall recover or be allowed to set oft" charges for , ^f, .,.-,, . . T liquor not re* any chai-ge tor mtoxicatmg liquors m any quantity less coverabie if than one gallon, delivered at one and the same time, and \on.^^ °"^ ^^' all specialties, bills, notes, agreements or accounts, stated, given, or made in whole or in part for or to secure any such charge, shall be void ; but nothing herein con- Exceptions. tained shall extend to any charge made by a person holding a tavern license only against any boarder or traveller, and it shall not be necessary for any person wishing to take advantage of this clause to plead the same specially, but advantage m^ be taken thereof at any stage of the trial in motion for non-suit. 17. If any person holding a tavern license shall pur- goolsrioffrom chase from any servant or common laborer, any wearing servants or in apparel, tools, or implements of trade or husbandry, or '"'^°' 64 LICENSE SALE INTOXICATING LIQUORS. [PART I. Chap. 19. household goods, or furniture made up, or shall receive from any person any goods in pawn, any justice of the peace upon sufficient proof on oath of the fact, may issue his warrant for restitution of the property and for payment of the costs, and in default thereof for levy and sale of the offenders goods for double the value of the property and costs, and the oftenders shall also be liable to a penalty of eight dollars. 18. Married women, servants, or other persons concerned in any breach of this chapter, shall be liable to the penalty thereto attaching as if they were unmarried women or principals, provided the husbands or masters shall not have been prosecuted for the same offence ; and upon any conviction of a married woman, servant, or other person under this section, the husbands, employers, or masters, shall not be afterwards sued for the. same offence. Foi-m of pro- ceeding. Penalty. Penalty against married women 4e. Breach of act. " Proviso. Clerk may visit premieeB. Penalty for ob- structing clerk. Clerk's ac- counts — when rendered. 19. The clerk of the licenses Duties, penal- ties, Ac— to whom paid. Penalties — how recovered. Forms. may, whenever he sees fit, visit the premises of persons holding tavern licenses to see that the provisions of this chapter are complied with, and he shall prosecute all offenders against such provisions ; and if any person shall obstruct him in the exercise of his duty, he shall forfeit the sum of twenty dollars, and may also be indicted for a misdemeanor, and fined and impri- soned in the discretion of the court. , 20. The clerks of the licenses, except in the city of Halifax, shall render a half yearly account to the county treasurer of all duties collected, and of all penalties or portions thereof payable into the county treasury, which may have come into their hands, together with a state- ment of all judgments obtained for penalties so far as the same shall have come to their knowledge and which may be unsatisfied, and shall immediately on the receipt of any license duties, penalties, or portions of penalties, pay the same over to the county treasurer, deducting the commission. 21. Penalties under this chapter may be recovered in the name of any of the clerks of license in their respec- tive districts, or of any other person who %A'iU sue therefor, in the same manner and with the like costs as if they were private debts, except that the summons shall be in the- form in schedule C ; and upon conviction such conviction shall be endorsed upon or annexed to the original sum- mons in the form of schedule D, and the same, when signed by the justices, shall be held a valid conviction, and thereupon an execution for the amount therein men- tioned shall issue in the form in schedule F^ and upon the trial of any cause under this chapter eitherthe prosecutor or defendant, if he desire it, or at the instance and request of the other party, may be examined as a witness, pro- vided that when the prosecutor vsdthout being called by the other party appears as a witness, he shall not retaiti TITLE III.] LlCElsrsE SALE INTOXICATING LIQUORS; 6^ any part of the penalty, but the whole shall be paid as Chap. 19. directed in the next section, and the summons may be Amendment of amended at the trial below or on an appeal ; but the clerk summons. of license, on information being given to him in writing, oompeiied"o on having his costs guaranteed by two or more responsible p™s«'^'i"- parties, shall be compelled to prosecute the person informed against, under penalty of the same amount as would be imposed by the party informed against if convicted, to be recovered as an ordinary debt in the name of the person making such request. 22. Penalties under this chapter, except as provided in po^afo^'^'"" the preceding section, shall be paid one half to the person sueing and the other half into the county treasury, except Except.Haiifax in the city of Halifax, where the same shall be paid to the officer now by law authorized to receive such monies. 23. Appeals from the decisions of the justices for any gfiSftoar'"''' penalty or forfeiture incuri'ed under this chapter, shall be granted in the same manner as in the case of summary trials before justices of the peace, and the defendant shall become j^pp^,, j,o„j. bound with two sufficient securities in a sum double the amount of the judgment to prosecute such appeal, and to pay .all costs, fines, and penalties that may be imposed and taxed in the final disposition of the suit, and also that during the pendency of the appeal, he or she will not violate any of the provisions of this chapter ; and in the case of certiorari, instead of the bail required in such case, the bonSo"' same bond shall be given as in ordinary appeals, and in case of granting a new trial the court may impose such ^"^ '""'• terms on either party as may best promote the ends of justice. 24. The bond to be given on such appeal or on issuing Bonds-form of a writ of certiorari, shall be in the same form as that in schedule E. 25. If any person subpoenaed as a witness in any suit ^ "Jfin^attond* or prosecution under this chapter shall not attend at the an^e of time and place mentioned in the subpoena without just "^ "^^^*'' cause to be allowed by the court or justices before whom the suit or prosecution shall be had, or having attended shall depart without permission of the court or justices or shall refuse to be sworn or ^ve evidence on the 1;rial, he shall forfeit a sum. not exceeding forty dollars, to be sued How leviod. for and collected as an ordinary debt by the plaintiff, and for want of goods whereupon to levy he may be com- mitted to jail and detained there for the same period of time as if he had been guilty of a first offence for selling liquors without license ; but no person shall be obliged to Must bo paid attend or give evidence on any such trial until he shall have been paid his fees for travel and attendance. 26. In suits instituted by the clerk of the licenses, ^™=f^"i°^i. where the justice before whom the trial is had shall give fied. judgment for the prosecution, or if he give judgment for 9 66 LICENSK SALE INTOXICATINa LlQtOKS. [pART 1. Chap. 19. the defendant shall certify there was reasonable ground for conamencing the suit, the prosecutor shall be fully indemnified for all costs and expenses on both sides, to be taxed by a judge of the supreme court, and to be levied by assessment or amercement on the county. uffertrudgmlD" 27. E"o judgment shall be withheld on account ol variance between the proof and the summons if it appears to the satisfaction of the justices trying the cause that the defendant was aware of the real cause of complaint, but if Justice may the justiccs scc fit for this cause they may continue the continue cause. ^p^^| fgj. another day, and no judgment shall be set aside for any variance or from any formal objection. saiebywife.ie. 28. Any 'sale of intoxicating liquors made on the premises of any person by the wife, child, or servant of such person, shall be considered presumptively as the act of the husband, parent, or master, and shall be punished in the same way as if such sale had been made by such husband, parent, or master in person, and the burthen of proof of innocence shall be thrown on such husband, parent, or master. Mail carrier 29. ISTo mail Carrier shall knowingly carry in the same liquor. ""^ " wEggou or Vehicle with her majesty's mails any intoxica- ting liquors under a penalty of not less than four dollars nor more than twenty dollars for each ofience. sa^etoaminor 30. Any pcrson holding a Hcensc who shall kuowingly sell intoxicating liquor to a minor or to an Indian, upon proof thereof before a justice ^of the peace, shall forfeit his license, and shall not again be capable of holding a license ; and in case of sale to an Indian shall also be liable to a penalty of twenty dollars for each ofltence, and in default of payment shall be imprisoned for a term of not less than ten days or more than twenty days. fe^ii'ta'^intem ^^' ^ ^^® husbaud, wifc, parent, child, brother, or perate persons, sister, mastcr, guardiau, or creditor of any person addicted to the intemperate use of intoxicating liquors, or any justice of the peace or overseer of the poor residing within the poor district wherein such intemperate person resides, shall give notice in writipg to any person engaged in the sale of intoxicating liquors that such person is addicted to the intemperate use of intoxicating liquors, it shall not thereafter be lawful, under any pretence what- ever, for the person receiving such notice by himself, his servants or agents, directly or indirectly, to sell or give any intoxicating liquors to such intemperate persons to be used on the premises, or in any quantity less than ten gallons to be delivered and removed from the premises at one time, and any person knowingly violating the provisions of this section, upon proof o? the truth of the statement contained in such notice, shall be liable to a fine of not more than twenty dollars for a first offence, and a fine of not less than twenty dollars nor more than forty TITLE III.] LICENSE SALE INTOXICATING LIQUORS. 67 dollars, and imprisonment for a pei'iod of not more than Chap. 19. thirty days, as the court or justices may direct, for a second or subsequent offence. 32. In any suit instituted for a breach of the provisions ^"tTmen "m of this chapter, it shall not be necessary to- state in the summon^s. summons that the liquor sold was not contained in the original package in which it was imported, or that the ame was sold without license or in quantities less than ten gallons, but the defendant, if claiming to be exempted by set np'as^a de- the operation of such exceptions, may set up the same as ^™'"'' a defence, in which case the burthen of proof shall be thrown upon such defendant ; and it shall not be neces- sary to attach particulars to the summons as in the case of ^j'^i^fred!"''"^'' ordinary civil suits, or to specify the particular kind of liquors sold ; but in all cases it shall be sufficient in the summons to charge the party accused with having sold intoxicating liquors contrary to law to some person named in the summons. 33. In any such suit, in case it shall be alleged in the Pi-oofof saioio -* *' t 1 T-T^ -I persons not summons that the sale complamed of was made to a named doesnot person therein named, and on the trial the prosecutor shall fail to prove such charge, but proof shall be given of a sale to another person, the suit shall not thereby be defeated, but the justices shall adjudicate upon the offence so proved as if the same had been alleged in the sum- mons, but in such case the defendant, upon application, Defendant en- shall be entitled to a continuance of not more than eight tinuanc°e°°" days to make his defence, and the prosecutor shall not be obliged again to prove his case, although if he choose he may bring additional proof in support of the prosecution, as well as proof to rebut the defence. 34. ^o person imprisoned under execution issued upon pdao^nedTot any judgment for a breach of this chapter, shall be entitled ^^^^^'^ '" 8"°' to jail limits. 35. Prosecutions for offences against this chapter, or Limitation of suits brought on any appeal bond, shall be commenced within six months, and the clerk of the license or any Action on ap- private prosecutor may bring an action on such appeal p^^i^bond. bond without special leave obtained therefor. 36. In case the constable or officer to whom a sum- service of sum- mons is delivered to be served shall not be able to effect ^fflclent." a personal service, it shall be a sufficient service of the same to leave it at the dwelling house of the defendant, provided that the officer makes an affidavit that he believes ProTiso. that the defendant concealed himself, or in any way endeavored to escape service of such summons. 37. In any county or township in which licenses for the reSd'/agems sale of intoxicating liquors are not granted, it shall be the appointed. duty of the general sessions for such county or township, or a special sessions convened by the custos on application of five justices for sijch purpose, to appoint one suitable 68 LICENSE SALE INTOXICATING LIQUORS. [PART 1. Chap. 19. person for each township, or so many for each county as may be requisite, not exceeding five in number, to be called agents for the sale of alcoholic liquors, to import and sell such alcoholic liquors as may be required for medicinal, mechanical, manufacturing, and other purposes, not inconsistent with the provisions of this chapter ; and iifts?ic'." """'' such agent shall keep a list of the names of persons pur- chasing liquor, the quantity and description purchased by each person, and the purposes to which such liquor is intended to be applied, and shall receive such compensa- tion for his services, and shall conform to such other regulations for the importation and sale of such liquors, Penalties. ^ud shall also bc liable to such penalty for neglect or violation of duty, as the court of sessions appointmg him shall prescribe. No such agent shall have any interest in such liquors, nor in the profits of the sale thereof. liaiiway cum- 38_ j^ gi^all bc lawful for the chief commissioner of inissloner may i*ii-i*^' j seize liquors on railways. Or any person authorized by him, to seize and railway. destroy all intoxicating liquors found exposed or intended for sale within the limits of the railway, and for that purpose, if necessary, upon reasonable ground of suspicion, forcibly to enter into any house or building within such limits, and to seize and take away all such intoxicating liquors. Kranted" within 39. No liceuses shall be granted to any person who ^t'l^tJ Vi'JJii^ shall reside or have his place of business within the limits or gold uistnet. ^ -, >-, ^ iiii'i-i ot the railway, nor to any person who shall reside or have his occupation within any proclaimed gold district, and all sales of intoxicating liquors within such limits, or Within such proclaimed gold districts, shall be deemed as made without license, nothwithstanding the seller may hold a license, and he shall be liable to all penalties and for- feitures incurred by those who sell without license. SCHEDULE. A. County of • License office. Tavern license. License is hereby granted to , of , in the county of , to sell and retail in a tavern, to be kept in the house in which he dwells, situate [here describe particularly the situation of the premises,^ intoxicating liquors conformably to law. This license to remain in force until day of next, subject to forfeitui-e for breach of the law. Given under my hand as clerk of the licenses for the said county, this day of , A. D. 18 — . A. B., clerk of the license. By order of the sessions, security having been given as required by law. TITLB III.] LICENSE SALE INTOXICATING LIQUORS. 69 County of Chap. 19. License office. Shop license. License is hereby granted to , of , in the county of , to sell in a shop to be kept in the build- ing ocupied by him, situate [here describe particularly the situation of the premises,'] intoxicating liquors in quantities not less than one gallon, but no part whereof shall be consumed on the premises. This license to remain in force until the day of , subject to forfeiture for breach of the law. Given under my hand as clerk of the licenses for the said county, this day of , A. D. 18 — . A. B., clerk of the license. By order of the sessions, security having been given according to law. County of License office. General license. Whereas a tavern license dated the day of in the year 18 — , has been granted unto of - in the county of ; and whereas the sessions for such county have also ordered a general license to be granted to the said , license is hereby granted to him to vend goods in his tavern during the continuance of his tavern license. Given under my hand as clerk of the licenses for the said county, this day of A. D. 18 — . A. B., clerk of the license. By order of the sessions. C. D., clerk of the peace. County of ■ License office. General license. Wbereas a shop license 'dated the day of - A. D. 18 — , has been granted unto of , in the county of ; and whereas the sessions for such county have also ordered a general license to be granted to the said , license is hereby granted to him during the continuance of his shop license, to sell by retail any quantity of intoxicating liquors, to he used in the shop in such shop license described. Given under my hand as clerk of licenses for said county, this day of A. D. 18 — . By order of the sessions. A. B., clerk of licenses. C. D., clerk of the peace. B. EJiow all men by these presents that we, are held and firmly boimd with our sovereign lady queen Victoria, her heirs and successors, in the sum of two hun- 70 LICENSE SALE INTOXICATINO LIQUORS. [PART I. Chap. 19. dred dollars of lawful money of Nova Scotia, to wHch payment we jointly and severally bind ourselves, our heirs, executors, and administrators, by these presents, sealed with our seals, and dated the day of , A. D.. 18—. Whereas the above bounden , has been granted a license for the sale by retail of intoxicating liquors in the tavern [or in the shop] kept by the said ■ , in— . N'ow the condition of this obligation is such, that if the said shall in all respects conform to the laws in force respecting the retail of intoxicating liquors and con- nected with such license, then this obligation to be void, otherwise to remain in full force and effect. Signed, sealed and delivered "I / ^^^j •, m the presence of . j \ v C. To any of the constables of : You are hereby commanded to summon A. B. of , in tjie county of , to appear before us at , on the day of , to answer to the suit of C. D., clerk of the license for the county of , [if the suit be brought in his name,] for selling intoxicating liquors to , within previous to the issuing hereof, con- trary to law. Witness our hands and seals at , the day of , A. D. 18—. E. F., J. P. (seal.) G.H.,J.P. (seal.) D. The within named defendant having been duly sum- moned as mentioned in the annexed writ of summons, was this day convicted of the offence of violating the license laws by selling intoxicating liquors without license, [or other offence as the case may be, specifying whether it is for the first, second, third, or fourth offence, and stating the amount of pen- alty and costs, or upon default, or upon the oath of G. H.., as the case may be, stating the manner of the party's conviction, and the names of the witnesses who may have been examined.] Witness our hands this day of , A. D. 18. — , C. D., J. P. E. F., J. P. E. Know all men by these presents that we and , are held and firmly bound unto her majesty queen Victoria, her heirs and successors, in the sum of of lawful money of Nova Scotia, to which pay- ment we jointly and severally bind ourselves, our heirs, executors and administrators, by these presents, sealed with our seals, and dated the -- — day of , A. D. 18—. TITLE IV.] POST OFFICE. 71 The condition of the foregoing obligation is auch that Chap. 20. if the above bounden [jiarh/ convicted] shall prosecute an ' appeal from a judgment given against him for a violation of the license laws by , a justice [or justices'] of the peace for the county of , on the day of — , and shall pay all fines, p^enalties and costs that may be awarded against him upon the final disposition of such suit, and also if the said shall not during the pend- ency of such appeal, violate any provisions of the laws respecting licenses for the sale of intoxicating liquors, then this obligation to be void, otherwise to remain in full force and virtue. Signed, sealed and delivered \ CM in the presence of . j ^^^^ '' F. To any of the constables for the county of - "Whereas A. B., oft , was this day convicted before us, the undersigned, two of her majesty's justices of the peace for the county of , of the oftence of violating the license laWs, {here state the offence as in the conviction,] these are therefore to command and require you forthwith to levy on the goods and chattels of the said A. B., to be found within your precinct, the sum of dollars for penalty and dollars for costs of suit, and for want of goods and chattels of the said A. B., we command you that you take the body of the said A. B., and him commit into our jail in ■ — , there to remain until discharged by due course of law. Whereof fail not, and make due return of this writ with your doings thereon tqi us vrithin days. "Witness our hands and seals this day of A. D., 18—. E. F. (seal.) G. H. (seal.) TITLE IV. OHAPTEE 20. OF THE -POST OFFICE. 1. The exclusive right of establishing posts and of con- fj'^®']5°J '■^ veying letters and collecting postage within the province, troi^post office! and the power and authority heretofore vested in the lords of her majesty's treasury by virtue of the acts of the imperial parliament passed in such behalf to order and 72 POST OFFICE. [PAKT. I. CiiAP. 20. establish rates of postage herein, are hereby vested in the ~ governor and council. Sffloers^'and' 2. The govcmor in council may establish, _ alter, dis- establish posts, continue or extend any posts or post communication, or post offices, and may appoint, suspend or remove the postmaster general, and all or any postmasters, officers, deputies, agents and servants connected therewith. PoBtmaster 3. The postmastcr general shall give bond in the sum fostmastCTs to of four thousaud dollars, with two sureties in the sum of giTe bonds. ^^ thousand dollars each, and postmasters shall give bond in such sum and with such sureties as may be directed by the governor in council. Governor in 4. The govemor in council may make such orders in make 'iSm. conformity with this chapter as may be necessary for carrying out the same and promoting the objects thereof, and for avoiding as far as practicable the transmission of mails on the sabbath, and all such orders shall be valid as if in this chapter contained ; but no higher penalty than four hundred dollars shall be imposed by any such order in council for the violation thereof. o"de'rs*''°° "'' ^' ^^^^ such Order in council shall be published in the royal gazette, and the rates of postage then established shall be demanded and taken immediately after such publication ; and every such order, within eight days after it is made, shall be laid before the legislature if then sitting, or otherwise within fourteen days after it shall meet, ^g^i'^how re|u. 6. In couformity with the agreements made between lated. i}^Q local governments of British North America, the provincial postage on letters and packets, not being news- ' papers or printed pamphlets, magazines or books, entitled to pass at the lower rates hereinafter referred to, shall not exceed the rate of five cents per half ounce for any distance within the province ; and the increase of charge on letters weighing over an half an ounce shall be regulated accord- ing to the following scale : — ISfo transit postage shall be charged on any letter or packet passing through the pro- vince to any other colony in British IsT^rth America unless it be posted in this province and the sender choose to prepay it, nor any letter nor packet from any such colony if prepaid there ; and the rate of iwopmee sterling the half ounce shall remain in operation as regards letters by British mails, to be extended to countries having postal communication with the united kingdom, unless her majesty's government shall see fit to alter the rate thereon to be charged to five cents. Letters mailed at any office County postage in this proviucc for delivery wdthin the county in which the post office is situated shall if prepaid by stamp be liable to a charge of two cents per half ounce. Ste fOT '°"^'^^'' '^- ^^^® postage on all letters posted in Nova Scotia to be delivered within the province and not prepaid, shall be seven cents per each half ounce, payable on delivery. TITLE IV.] POST OFFICE. 73 8. Letters mailed at Halifax to be forwarded by packet Chap. 20. to the United States shall be charged at a rate of ten Packet letters. cents, which shall be prepaid by stamp, of which rate one u.s.rate for.' cent and a half shall belong to the Nova Scotia office. 9. Letters mailed at Halifax; for Bermuda or Newfound- ^„™„'if^ ^|^" land shall be charged with a rate of ten cents per half rate. ounce to be prepaid by stamp, of which one cent and a half shall belong to the Nova Scotia office. 10. British and colonial newspapers and small religious pape's^freo' periodicals, such as the British workman, penny post, child's paper, the play hour, the sabbath school visitor, and others of a like description, whether British or foreign, shall pass through the Nova Scotia post office whether posted within or without the province, free of charge for Nova Scotia postage. 11. All other newspapers passing through the post ^^walllera^^ office shall be liable to a charge of one cent each. If mailed within the province, such postage must be pre- paid by stamp ; if mailed without, for delivery within the province, the postage shall be collected on delivery. 12. One copy to be called an exchange copy of any Exchange newspaper, which under the next preceding clause would ^^p®"' be liable to postage, shall nevertherless, if addressed to a newspaper publisher in Nova Scotia, pass free of Nova Scotia postage. 13. Printed books may be transmitted through this ?°'>^ postag. j.j.T.xi?'^ J. j.°j?x in province. province at the rate or one cent per ounce up to lorty- eight ounces, beyond which no weight in book shall be transmitted by post in this manner. 14. Printed books, magazines, reviews, or pamphlets, Bookpoataga ,. J. ,, n ■ J. ° ' , j-j.-'^j?! elsewhere. binding rollers tor prints or maps not exceeding two leet in length, markers and everything appertaining to such publications, may be sent through the post between Nova Scotia and the United Kingdom, and also between Nova Scotia, Newfoundland, and Bermuda and British West Indies, at the following rates of postage : — for a single volume not exceeding one quarter of a pound in weight, three pence sterling; exceeding one quarter of a pound and not exceeding one half of a pound, six pence sterling ; exceeding one half pound and not exceeding one pound, one shilling sterling ; and so on adding one shilling sterling for every additional pound or a fraction of a pound. 15. Periodicals passing through any office in this pro- Periodioais. vince, except those published in the province and agricul- tural reports, which shall go free, shall be liable in addition to any charge prepaid on posting to an additional charge on delivery of two cents for each number. If posted within the province for delivery within or without the province they shall be liable to a charge of two cents each, to be prepaid by stamp ; but the governor in council may by 10 postage, &c. 74 POST OFFICE. , [part I. Chap. 20. order, alter, modify, and reduce the rates of postage on such, periodicals as they may think proper. Parcel postage. ^6. Parcels closcd at the ends or sides may he sent by post in Nova Scotia at the following rates, which must be prepaid hy stamp : if weighing less than one half of a pound, twelve and a half cents ; more than one half of a pound but less than one pound, twenty-five cents ; more than one pound and not exceeding two pounds, fifty cents, more than two pounds but not exceeding three pounds, seventy-five cents ; beyond which weight no parcel can be forwarded by post. The size of the parcel not to exceed one foot in length or breadth, and six inches in thickness. Postage retaiu- 17. AH provincial postage received within this pro- ed where re- . , n i^ ^ • j '^^ -l i • j. -j. j n ^• ceired. vmcc Shall be retained as belonging to it, and all provin- cial postage received within any other of the British II^Torth American colonies may be retained as belonging to such colony. British packet 18. The British packet postage and other British post- age collected in this province, shall be accounted for and paid over to the proper authorities in the united kingdom ; but the colonial postage on the same letters or packets shall belong to the colony collecting it, or if prepaid to the British post office it shall be credited and belong to the colony to which such letters or packets are addressed. Frankingprivi- 19. ^q privilege of frauMng shall be allowed as re- lege abolished. , .'-.-, ° , ° gards provincial postage. stamps. 20. Provincial stamps for the prepayment of postage may be prepared, issued and sold, under the orders of the governor in council ; and such stamps prepared, issued and sold, under the directions of the proper authorities in the other British North American colonies, shall be allowed in this province as evidence of the prepayment of pro- vincial postage in such colonies respectively on the letters or packets to which they are affixed. "osteTho' ^^' '^^^ packet postage for letters to the united Mng- Sfspofld of" dom, shall be six pence sterling the half ounce ; five pence of which shall belong to the English post office and one penny to the Nova Scotia office. Packet postage 22. All mouics rcccived on account of packet postage paid half yearly ini -i, , . ■, '^t '^ P other postage Shall DC caiTied to a Separate account by the postmaster quarterly. general, and the same shall be remitted by the governor not less than twice in every year to the postmaster general in England ; and all other monies received by the post- master general in this province, shall be paid by him at the end of every quarter to the receiver general, and he also shall return to the office of the financial secretary at the end of every quarter a quarterly account of the whole revenue received by him. Express mail. 23. The rate of remuneration by the transport of British mails by express through this province to or from New Brunswick, Canada, and Prince Edward Island, shall be TITLE IV.J POST OFFICE. 75 paid from time to time by agreement to be made between Chai\ 20. tbe government of this province and the other provinces or governments concerned. 24. If it shall appear to the local governments or proper Agreement authorities of the other provinces and of the united king- '^fl ^° ™'"^'' dom, and to the gove'i-nor in council, that the foregoing conditions and provisions are not in accordance with the arrangements so made and agreed upon with the other colonies, then the governor in council may alter and modify such conditions and provisions so as to carry out and complete such arrangement. 25. All papers ordered to be printed by either house of faF^iia-*' parliament or by her majesty's command, or by the legis- mentary print- f , . -1 ■^1 i "^ 1,1 r? .1 • •'• °i ed matter free. lative council or house ot assembly oi this province, or by virtue of an address of the legislative council or assembly, shall be transmitted by post within this province free of postage. 26. ISTo printed paper, whether newspaper, booki, fo™'*jj*diS^ °' pamphlet or other paper, permitted by this chapter to be printed papers, sent by post, shall be transmitted either free or at a reduced rate of postage, unless the following conditions shall be observed ; first, it shall be sent without a cover, or in a cover open at the sides or ends ; second, there shall be no words or communication printed on the paper after its publication or upon the cover thereof, nor any writing or marks upon it, or upon the cover of it, except the name and address of the sender and of the person to whom it is sent ; third, there shall be no paper or thing enclosed in it or with any such paper or publication. 27. The postmaster general or any of his officers may cha^ea^bielf examine any printed paper or packet which shall be sent conditions not by the post, either without or with a cover, open at the ""'"^''^'^ '''"''■ sides or ends in order to discover whether it is contrary in any respect to the conditions hereby required to be observed, and in any case if the required conditions be not fulfilled the whole of every such paper shall be charged with postage as a letter ; and as to every such printed paper going out of the province the postmaster general may either detain the same or forward it by post charged with letter postage. 28. In all cases where a question shall arise whether a Questions of printed paper is entitled to the privileges of a newspaper p?fnte5i papers, or other publication as regards its transmission by post decided. under this chapter, the question shall be referred to the postmaster general, whose decision with the concurrence of the governor in council shall be final. 29. If any printed newspaper or other printed paper, ^^^^°""'l°l privileged to go by post and brought into this province, 5ewspape?rfor. shall be directed to a person who shall have removed from ^*'''*^'^- the place to which it is directed before the delivery thereof at that place, it may, provided it shall not have opened, be 76 POST OFFICB. [part I. Chap. 20. re-directed and forwarded by post to such person at any """ other place within this province free of charge for such extra conveyance, p poa ftge. gQ^ -p^^ encouraging masters of vessels, not being post office packets, to undertake the conveyance of letters between places beyond the British North American colo- nies and this province, and for regulating the conveyance and delivering of such letters, the postmaster general may allow to the masters two and a half cents for each letter they shall deliver to the post office at the first port they touch or arrive at in this province, or with which they shall communicate when inward bound, and if froin unfor- seen circumstances the master cannot, upon delivering his letters at an outport, receive the money to which he is entitled, he shall be paid by means of an order upon the postmaster general at such other place as may be conve- nient, and every master of a vessel inward bound shall, at the port or place of arrival, sign a declaration in the presence of the person authorized to take the same at such port or place, who shall also sign the same, and the declaration shall be in the form or to the efiect following : I, A. B., commander \_siate the name of the ship or vessel] arrived from, [state the plaee'] do as required by -tlie post office laws, solemnly declare that I have to the best of my knowledge and belief, delivered or cause to be delivered at the post office, every letter, letter bag, package, or parcel of letters that was on board the [state the name of the shipl except such letters as are exempted by such laws, how dei?Te[»i, 31. No officer of the colonial revenue shall permit such *•=• vessel to enter or report until such declaration shall be made and produced, and no vessel shall be permitted to break bulk or make entry in this province until all letters on board the same shall be delivered at the post office where posts may be established, except such letters as are exempted by this chapter, and also except all such letters as shall be brought by a vessel liable to the performance of quarantine ; all which last mentioned letters shall be deli- vered by the persons having possession thereof to the persons appointed to superintend the quarantine that all proper precautions may be by them taken before the delivery thereof, and when due care has been had therein such letters shall be by them despatched in the usual manner by post; and the officers of the colonial revenue at every port or place in this province shall search every vessel for letters which may be on board contrary to this chapter, and may seize all such letters and forward them tothe nearest post office, and the officer who shall so seize and send them shall be entitled to a moiety of the penalties which may be recovered for any such offience ; and the postmaster general may appoint agents to demand TITLE IV.] POST OFFICE. 77 from the masterB of vessels arriving in this province, all Chap. 20. letters on board the same and not exempted by this chap- " ter, and the master of any such vessel shall forthwith de- liver all letters on board to such person on his demanding the same. 32. The postmaster general, vsdth the approbation of ^^'p'Jfji^*;';!,. the governor in council, may establish way offices over and ed. above the regular post offices, and every person employed at a way office shall be liable to all the penalties imposed by this chapter on postmasters and other officers of the post office ; and may also provide in suitable and con- venient places within the city of Halifax, receiving offices Eeceiving ofn- where letters prepaid by stamps and newspapers and ofty/^"'"** matter not liable to postage, or postage prepaid by stamps, may be mailed, and a local courier or couriers daily at hours publicly notified shall convey the same to the general post office, preparatory to being mailed. 33. The postmaster general, with the concurrence of po^s't'; hm°"pm- the governor in council, may enter into an agreement with ^'"^«''- and take security from any person applying to him to extend the accommodations of the post to any place, for indemnifying the revenue against the expenses which shall be incurred thereby beyond the amount of postages received. 34. The governor in council may enter into arrange- frlns'rJJisRiouof ments or conventional agreements with any other of the newspapers. North American colonies, or with any foreign country, for the transmission of colonial or foreign newspapers or other printed papers within or through this province, upon such terms and conditions as shall be reasonable, and may carry out such arrangements or conventional agreements by orders in council, duly published as herein directed. 35. The postage marks, whether British, foreign, or Postage marks colonial, on any letter brought into this province, shall in *^' ^"°''' all Jcourts of justice and elsewhere be received as con- clusive evidence of the amount of British, foreign or colonial postage, payable in respect of such letter, in addition to any other postage chargeable thereon, and all such postage shall be recoverable in this province as postage due to her majesty. 36. ISTo postmaster general nor any officer of the post g^'^f^o®^" „b- office throughout the province, nor any courier, shall be Ho duty. compelled to serve on any jury or inquest, or in the militia, or as town or city officer. 37. If any person employed to convey or deliver a post Misconduct, letter bag, or a post letter, shall, whilst so employed, or ''"^ p^'"«hed. whilst the same be in his custody or possession, leave a post letter bag or a post letter, or if any such person shall be guilty of an act of drunkenness ot of negligence, or other misconduct, whereby the safety ot a post letter bag or a post letter shall be endangered, or shall collect. 78 POST OFFICE. [part I. Abettors punished. Chap. 20. receive, convey or deliver a letter otherwise than in the " ordinary course of the post, or shajl give any false infor- mation of an attempt at robbery upon him, or shall loiter on the road or passage, or wilfully mis-spend his time so as to delay the progress or arrival of a post letter bag or a post letter, or shall not use proper care and diligence safely to convey the post letter bag or a post letter at the rate of speed appointedby and according to the regulations of the post office for the time being, he shall forfeit a sum not exceeding forty dollars. 38. Whoever shall abet or procure the commission of an offence, which is by this chapter punishable on sum- mary conviction, shall be liable to the same forfeiture or punishment to which a principal oifender is by this chapter made liable. r.iriaise free. 39^ js^q persou in the employ of the post office travel- ling with a mail shall pay for passing or repassing a ferry, but the ferryman at every such ferry shall forthwith convey over such person travelling with a mail without payment for the same on pain of forfeiting for every offence twenty dollars. 40. Subject always to the provisions and regulations hereinbefore contained, the postmaster general shall have the exclusive privilege of conveying, receiving, collecting, sending and delivering letters within this province ; and any person who shall, except in the cases hereinafter excepted, collect, send, convey or deliver or undertake to convey or deliver any letter within this province, or who shall receive or have in his possession any letter for the purpose of conveying or delivering it otherwise than in conformity with this chapter, shall for every letter so unlawfully conveyed or undertaken to be conveyed, or received, delivered or found in his possession, incur a penalty of one dollar ; but such exclusive privilege, prohi- bition and penalty, shall not apply to — Exception!.. Letters sent by private individuals to be mailed in the first way or post office : Letters sent by a messenger on purpose concerning the private affairs of the sender or receiver : Letters addressed to a place out of the province and sent by sea and by a private vessel not being a packet boat: Letters lawfully brought into this province and imme- diately posted at the nearest post office : Letters of merchants, owners of merchants' vessels, or of the cargo or loading therein sent by such vessels or by any person employed by such owners for the carriage of such letters according to their respective addresses, and delivered to the persons to whom they are respectively addressed without pay or advantage for so doing. Letters concerning goods sent by common known Letter!? for- warded only by mail. Penalty. TITLE IV.] POST OFFICE. 79 carriers to bo delivered with tlie goods to whicli such Chap. 20. letters relate, without reward or advantage for receiving or delivering them. Provided that nothing herein contained shall authorize Proviso. any person to collect any such excepted letters for the purpose of conveying or sending them as hereinbefore mentioned, and that way letters prepaid may be delivered by the officer to the courier, to be dropped along the route at convenient places ; and provided also that nothing in this chapter shall oblige any person to send any pamphlet, printed book, or newspaper by post. 41. It shall be lawful for any person, and it shall be the Letters sent duty of the officer or person employed in the post office, luf^ ^' "^'^^ or in the collection of the revenue, to seize any letters conveyed, received, collected, sent, or delivered in contra- vention of this chapter, and to take them to the nearest post office, and to give such information as he may be able to give to the postmaster for the effectual prosecution of the offenders, and the letters moreover shall be charged with letter postage. 42. As well the colonial, British or foreign, as the and^tlwho'^m provincial postage on any letter or packet, shall, if not payable. prepaid, be payable to the postmaster general by the party to whom the same shall be addressed, or who may lawfully receive such letter or packet, and any refusal or neglect to pay such postage shall be hfild to be a refusal to receive such letter or packet, which shall be detained and dealt with accordingly ; but if the same be delivered the postage on it shall be charged against and paid by the postmaster delivering it, saving his right to recover it from the party by whom it was due as money paid for such party ; and if any letter or packet be refused, or if the party to whom it is addressed cannot be found, then such postage shall be recoverable by the postmaster general from the sender of such letter or packet, and the postage marked on any letter or packet shall be held to.be the true postage . due thereon, and the party signing or addressing it shall be held to be the sender until the contrary be shewn ; and all postage may be recovered with costs by civil action in any court having jurisdiction to the amount. 43. Subject to the provisions of this chapter, and to the ^o^erg and™'' orders made under it and the instructions he may receive duties of. from the governor, the postmaster general shall have power to open and close post offices and mail routes, to suspend any postmaster or other officer or servant of the department until the pleasure of the governor be known, and to appoint a person to act in the meantime in the » place of such officer or servant ; to enter into and enforce all contracts relating to the conveyance of the mails, the local accommodation of the department, and other matters 80 POST oppiCB. [part I. Chap. 20. connected with the business thereof, and to make rules and orders for the conduct and management of the business and' affairs of the department, and for the guidance and government of the officers and servants thereof in the performance of their duties ; to sue for all sums due for postages or penalties under this chapter, by any postmaster, officer or servant of the department or his sureties ; and all such powers may be lawfully exercised by him or by any postmaster, officer, servant or party whom he shall depute to exercise the same, or whose act in that behalf he shall approve, confirm or adopt; and every officer, servant or party employed in the post office shall, as regards the duties attached to the office held by him be deemed the deputy of such postmaster general ; and all suits, proceedings, contracts and official acts to be brought, had, entered into and done by the postmaster general, may be so in and by his name of office, and may be continued, enforced and completed by his successors in office as effectually as by himself; nor shall the appoint- ment or authority of any postmaster general, or of any postmaster, officer or servant of the post office, be liable to be traversed or called in question in any case except only by those who act for the crown. 44. In every case in which any seamen in her majesty's selmm^sTet- ^^^Jj scrgcaut, corporal, drummer, trumpeter, fifer or ters priYiieged. private soldicr in her majesty's service, or in the service of the East India company, shall be entitled to receive or send letters on the payment of a certain sum and no more in place of all British postage thereon ; the payment of such sum shall likewise free such letter from all such pro- vincial postage thereon ; and the governor in council may make orders for giving effect to this section. 45. From the time any letter, packet, chattel, money fettlia^^ '" ^'^ thing shall be deposited in the post office for the pur- pose of being sent by post, it shall cease to be the property of the sender, and shall be the property of the party to whom it is addressed or the legal representatives of such party. Lost letters. 46. The postmaster general shall not be liable to any party for the loss of any letter or packet sent by post unless such loss shall have arisen from his own default. Pshment'cF^"" ^'^^ ^o Steal, cmbczzle, secrete or destroy any post fined. letter shall be felony, punishable in the discretion of the court by imprisonment for not less than three nor more than fourteen years, unless such post letter shall contain any chattel, money or valuable security ; in which case the offence shall be punishable by imprisonment for life, or for a period not less than five years. To steal from or out of a post letter any chattel, money, or valuable security, shall be felony, punishable by im- prisonment for life, or for a period not less than five years. TITLE IV.] POST OFFICE. 81 To steal a post letter bag or a post letter from a post Chap. 20. letter bag, or a post letter from any post office, or from ~ any way office, or from a mail, or to stop a mail with intent to rob or search the same, shall be felony, punish- able by imprisonment for life, or for a period not less than five years. To open unlawfully any post letter bag or unlawfully to take any letter out of such bag shall be felony, punishable by imprisonment for not less than one nor more than four- teen years. To receive any post letter or post letter bag [or any chattel, money or valuable security, the stealing, taking, secreting, or embezzling whereof, is hereby made felony, knowing the same to have been feloniously stolen, taken, secreted, or embezzled, shall be felony, punishable by imprisonment for not more than five years; and the offender may be indicted either as an accessory after the fact or a substantive felony ; and in the latter case, whether the principal felon hath or hath not been previously con- victed or shall not be amenable to justice, and however such receiver shall be convicted, the offence shall be punishable as hereinbefore mentioned. To forge, counterfeit, or imitate any postage stamp issued or used under the authority of this chapter, or by or under the authority of the government or proper authority of the united kingdom, or of any British possession or of a foreign country, or knowingly to use any such forged counterfeit or imitated stamp, or to engrave, cut or sink, or make any plate, die or other thing whereby to forge, counterfeit or imitate such stamp, or any part or portion thereqf, except by the permission in writing of the postmaster general or of some officer or person who, under the orders to be made in that behalf, may lawfully grant. such permission, or to have possession of any such die, plate or other thing without such permis- sion, or to forge, counterfeit or unlawfully imitate, use or affix to or upon any letter or packet any stamp, signature, initials, or other mark or sign purporting that such letter or packet ought to pass free of postage or at a lower rate of postage, or that the postage thereon or any part thereof hath been pre-paid or ought to be paid by or charged to any person or department, shall be felony, punishable by imprisonment for life or for a period not less than five years. To open unlawfully, or wilfully to keep, secrete, delay or retain or procure, or suffer to be unlawfully opened, kept, secreted or detained, any post letter bag or any post letter, or after payment or tender of the postage thereon, if payable to the party having possession of the same, to neglect or refuse to deliver up any post letter to the person to whom it shall be addressed, or who shall 11 82 POST OFFICE. £PARTI. Chap. 20. be legally entitled to receive the same, shall be a misde- meaner. To steal, or for any purpose to embezzle, secrete, destroy, wilfully detain or delay any printed vote or pro- ceeding, newspaper, printed paper or book sent by post, shall be a misdemeanor. To obstruct or wilfully delay the passing or progress of any mail, or of any animal or carriage employed in con- veying any mail on any public highway, shall be a misde- meanor. To endeavor to procure any person to commit any act hereby made or declared a felony or misdemeanor shall be a misdemeanor. Every misdemeanor hereunder shall be punishable by fine or imprisonment or both in the discretion of the court, before whom the offender shall be convicted. Every principal in the second degree, and every acces- sory before or after the fact to any felony hereunder, shall ^ be guilty of felony and punishable as the principal in the first degree ; and every person who shall abet or procure the commission of any such misdemeanor shall be guilty of a misdemeanor and punishable as a principal offender. Any imprisonment awarded under this chapter shallbe in the provincial penitentiary if for a term of or exceeding one year ; and if the imprisonment awarded be for a less term it may be with or without hard labor in the discre- tion of the court awarding it. 48. Any indictable offence against this chapter may be dealt with, indicted, and tried and punished, and laid and charged to have been committed, either in the county or place where the offence shall be committed, or in that in which the offender shall be apprehended or be in cus- tody, as if actually committed therein; and where the offence shallbe committed in upon or in respect of a mail,^ or upon a person engaged in the conveyance or delivery of a post letter bag, or post letter, or chattel, or money or valuable security sent by post, such offence may be dealt with and inquired of, tried and punished, and charged to have been committed, as well within the county or pllace in which the offender shall be apprehended or be in custody as in any county or place through any part whereof such mail person, post letter bag, post letter, chattel, money, or valuable security shall have passed in the course of con- veyance and delivery by the post, in the same manner as if it had been actually committed in such county or place ; and in all cases where the side or centre or other part of & highway, or the side, bank, centre or other part of a river or canal or navigable water, shall constitute the boundary between two counties or places, then to pass along the same shall be held to be a passing through both ; and every accessory before or after the. fact, if the offence be felony, Offender, how prosecuted. TITLE IV.] POST OFFICE, 83 and every person abetting or procuring the commission of Chap. 20. any offence, if the same be a misdemeanor, may be dealt ~ ' ^ witli, indicted, tried and punished, as if he were a princi- pal, and his offence may be laid and charged to have been committed in any county or place where the principal offence may be tried. 49. In every case where an offence shall be committed Property, in in respect of a post letter bag, or a post letter, packet, ilidTother ^°" chattel, money or valuable security sent by post, it shall ""egationa, be lawful to lay in the indictment the property of such post letter bag, post letter, packet, chattel, money or valu- able security sent by post, in the postmaster general, and it shall not be necessary to allege in the indictment, or to prove upon the trial or otherwise, that the post letter bag, post letter, packet, chattel or valuable security, was of any value ; but except in the cases hereinbefore mentioned, the property of any chattel or thing used or employed in the service of the provincial post office, or of the monies arising from the duties of postage, shall be laid in her majesty, if the same be the property of her majesty, or if the loss thereof would be borne by the province and not by any party in his private capacity ; and in any indictment against a person employed in the post office for an offence against this chapter, or in any indictment against a person for an offence committed in respect of some person so employed, it shall be sufficient to allege that such offender or other person was employed in the post office at the time of the commission of the offence, without stating further the nature or particulars of his employment. 50. The postmaster s-eneral, subject always to the suits may be , r-iT • -1 • 1 compounded. orders ot the governor m council, may compromise and compound any suit or information which shall be com- menced by his authority or under his control against any person for recovering a penalty incurred under this chapter, on such terms and conditions as he shall in his discretion think proper, with full power to him or any of the officers and persons acting under his orders to accept the penalty incurred or alleged to be incurred, or any part thereof, without suit or information brought for the re- covery thereof. 51. All mere pecuniary penalties imposed by this chap- Pecuniary J- •/ A X «/ X. -non •! Iri A« M flW ter, or by any order oi the governor m council, made recovered. under this ch*apter, shall be recoverable with costs by the postmaster general by civil action in any court having jurisdiction to the amount, and shall belong to the pro- vince, saving always the power of the governor in council to allow any part or the whole of such penalty to the officer or party by whose information or intervention the same shall have been recovered ; but all such penalties shall be sued for within one year after they are incurred, and not afterwards ; provided always that, if the penalty 84 POST OFFICE. [part I. Competonoy of witnesses. Burden of proof Salaries. Definition of terms. Money order gystem. Chap. 20. exceed eighty dollars, the offender may be indicted for a misdemeauor in contravening the provisions of this chap- ter or of the regulations made under it, instead of being sued for such penalty, and if convicted shall be punished by fine or imprisonment, or both, in the discretion of the court. 52. In action or proceeding for the recovery of postage, or of any penalty under this chapter, any postmaster or other officer or servant of the post office, shall be a com- petent witness, although he may be entitled to entertain reasonable expectation of receiving some portion or whole of the sum to be recovered, and the burden of shewing that anything proved to have been done by the defendant was done in conformity to or without contravention of this chapter shall be on the defendant. 53. Postmasters and way office keepers shall receive the several sums now agreed to be paid to them as salaries. 54. The words "postmaster general" and "post office" when used in this chapter, shall mean the provincial post- master general and provincial post office, unless otherwise expressed. 55. The governor in council may make orders and regulations for providing, when it deems it expedient, means : — First — For avoiding the risk of transmitting small sums of money through the post by establishing a system of money orders to be granted by one postmaster or officer of the department on another and fixing the terms on which such orders may be obtained. Second — For sanctioning and enforcing the arrangements already made and established in this province for that purpose. Third — For extending th« money order system so as to include the granting of money orders on postmasters in the united kingdom and the British provinces of North America, and the payment of money orders drawn by such postmasters on postmasters in this province on such terms and conditions as he may deem expedient. Fourth — For rendering the money order system available for the transmission from Halifax to the shiretown of each county and from shiretowns to Halifax of all monies con- nected with the service of roads, of education, of the collection of the revenue, and of other branches of the public service, required to be transmitted to or from such shiretown, to or from Halifax, and for taking securities from the various officers employed in such transmission in respect thereof, and generally to make such regulations as he deems necessary for the due and effective working of the post and postal business and arrangements, and for carrying into effect the provisions of this chapter; and any such order and regulation piay fropa time to time be TITLE v.] BOARD OP WORKS. 85 repealed or amended by any subsequent order or regula- Chap. 21. tion made in like manner ; and any such order or regula- tion shall, until it be othermse ordered by any subseqilent regulation, have force and effect as if it formed part of the provisions of this chapter. Any bond or security required or authorized by this chapter or by any such regulation, or by any order of the governor in council in any matter relating to the provincial post office or to the money order system, shall be valid, and may be enforced according to its tenor and effect on the breach of the condition thereof. TITLE V. OF PUBLIC BUILDINGS, ESTABLISHMENTS, AND EECOEDS. CHAPTER 21. OF THE BOARD OF WORKS. 1. The board of works is and shall be composed of a Jomposition of -, _ ^ . ^ ^ ^ uoard of works. chairman and two other members appointed, and to be appointed as occasion may require by the governor in council to hold office during pleasure ; and all acts by them Acts legalized. heretofore done in the exercise of their functions as such board are declared legal and valid. The salary of the s»iaiy of chair- chairman shall not exceed sixteen hundred dollars ; the '"™' legal title to and the superintendence and management of Title and man- the provincial building and grounds ; the provincial peni- pfri™^"' "'^^™" tentiary and grounds; the hospital for the insane and grounds ; and all other buildings and property belonging to the province, and now under the care or management of the board of works, or which may be placed by the pro- vincial governnaent under their care, with all the light houses, buoys and beacons erected or to be erected within this province, and also Sable Island and the Seal and Mud Islands and the several provincial establishments for humane objects, is, are and shall be vested in and exer- cised by the board of works ; and for the purposes of this Board of works act the board of works is and shall be a body corporate '^"dy-'" ?«"*<=■ with perpetual succession. 2. The governor in council may make such regulations Governor ih for the superintendence and management of the public mai^'re^X- works mentioned in the first section of this chapter as may ''°"''' seem judicious, provided that no greater expense is incur- red for such superintendence and management than has 86 BOARD OP WORKS. [part I. Lauds, how obtained. Chap. 21. been heretofore sanctioned pr granted by the legislature — such regulations to be laid before the legislative council and assembly within ten days of the opening of the next session after they shall be made, and they shall be subject to the revision of the legislature. 3. Lands required by the provincial government for the erection of light houses, beacons and other uses for the protection of navigation and for roads leading thereto, and for buildings and other necessary purposes connected therewith, may by order of the board of works be laid oft" and appropriated to the public service for such uses; whereon a plan or other appropriate description of the lands shall be filed in the of&ce of the board, and an qrder of appropriation in Avhich the lands shall be adequately designated shall be entered in their books — a copy of which order, certified under the seal of the board and. the signature of the chairman, or in his absence a member of the board, shall be entered in the registry of deeds of each county in which the lands may lie. Immediately on the order of appropriation being passed by the board, the lands shall vest in the board and may thenceforth be used for the purposes required. The board may agree with the owners or persons entitled upon the value of the land or Value, how ascertained. Appeal. of their interests therein. In case of disagreement, the value shall be ascertained by the award of three arbitra- tors — one to be named by the board, one by the proprie- tors, and one by the custos of the county or district where the lands lie. Their award shall be returned to the court of sessions of the county in which the lands or any part of them lie, which may hear evidence, and confirm, modily or disallow the award in whole or in part. Either party may appeal to the supreme court which may hear evidence and confirm or modify or disallow the award and the order of the sessions in whole or in part ; and the judgment of the supreme court shall be final. If by the judgment of the sessions not appealed from, or of the supreme court, the award shall be set aside, a new arbitration shall take place in the manner and with the incidents of the first. 4. The board has and shall continue to have a clerk, whose salary shall not exceed eight hundred dollars. Superintendent There is and shall continue to be a superintendent of light houses and humane establishments, whose salary shall not exceed one thousand dollars. His duty under the board shall be to visit the light houses and humane establishments, but he shall be subject to the general direc- tion of the b oard and shall render them such assistance and perform such duties as the board may from time to time require. He shall report to the board for the infor- mation of the government and legislature, the condition of the humane establishments, light houses, and offer suggestions for correcting abuses and effecting improve- Clerk of board. of perin light! :s, 4c. TITLE v.] PENITENTIASY. 87 ments. There is and shall be a clerk of works under the Chap. 22. general direction of the board, whose salary shall not cierk of works. exceed eight hundred dollars. ' 6. An account of all payments, expenditures, and ex- kept "ind' """^ penses incurred by the board under this chapter, shall be money drawn. kept by the clerk of the board, and the amount necessary for that purpose shall be drawn by the board from time to time by warrant on the receiver general, under certificate of the financial secretary, and all such accounts shall be annually presented to the assembly, and be audited along with the other public accounts. CHAPTER 22. OF THE PENITEifTIARY. 1. The provincial penitentiary shall be used as a prison Penitentiary a for offenders as hereinafter specified. prison. 2. If any officer on being dismissed shall not quit theM°deofre- ., .• T ■_ . p T -IT movincr dis- penitentiary and give up possession of any building or missedoffieers. apartment belonging thereto within a period to be fixed by the board of woms, any justice of the peace shall, on application of the board, by warrant, direct the sheriff" to remove such person out of the penitentiary, or any build- ing or apartment belonging thereto, in like manner as upon a writ of habere facias possessione7n. 3. The board shall have the same powers with respect ^°'''''' "•">' to the penitentiary which the visiting justices of any SanlgTnflnt.""^ prison in England have, or so much thereof as the gover- nor in cpuncil may confer, and may hold meetings and make rules for the government of the penitentiary, for the duties and conduct of the principal keeper and other officers thereof, and for the maintenance, employment and discipline of the convicts ; such rules shall be printed and kept in a public book by the principal officer of the peni- tentiary. No rules or alteration or revocation of former rules shall be in force until approved by the governor in council. 4. , The board shall appoint one or more of their num- Appointmentof ber fi^om time to time to visit the penitentiary, and may powe"!' delegate to such visitors powers to make any order requi- site in cases of pressing emergency ; every such order shall be in writing, and shall be reported with the circum- stances to the board at their next meeting. 5. The board may contract for the clothing, diet, and Maintenance of other necessaries for the maintenance of the convicts, and empYoyment!"" PENITENTIARY. [part Chap. 22. Report of board to be laid before legislature annually. tonvicts, how removed and t-eceivodi Convicts must undergo medi- cal examina- tion. Sick convicts, how dis- charged. Employing of convicts, how regulated. for the implements or materials for any manufacture or trade in which convicts shall be employed, and may carry on such manufactures or trade and sell the goods manu- factured. 6. The board shall, on or before the tenth day of Janu- ary in each year, and oftener if required by the governor in council, report to him in writing under the hands of three or more of them, the state of the buildings, the behaviour of the officers and of the convicts, the amount of the earnings of the convicts, and the expense of the penitentiary and such other matters relating to the man- agement of the prison as they shall deem expedient, or as the governor in council shall direct, and such report shall be laid before the legislature within one month, if the general assembly be then sitting ; if not, then within fourteen days after its next meeting. 7. The governor may direct the removal to the peniten- tiary of any convict under sentence of the supreme court, who having been examined by a medical practitioner .shall appear free from any putrid or infectious disease and fit to be removed from the place of his confinement. The person having the custody of such convict shall, on the receipt of the order of removal, convey him to the peni- tentiary ; and if, on the examination by the medical officer there, he shall appear fit to be admitted, shall deliver him into the custody of the principal keeper, with an attested copy of the order of the court containing the sentence by virtue of which such convict shall be in custody, and also a certificate specifying such particulars concerning such convict as the governor may direct. The principal keeper shall give a receipt in writing to every such person for every convict received into his custody, and all reasonable expenses of such removal shall be paid by the county in which the offender shall have been convicted, 8. When any convict ordered to be confined in the penitentiary shall be brought thither, he shall continue in the custody of the person who shall bring him until he has been examined by the medical officer, and ascertained to be fit for admission into the penitentiary; and if the medi- cal officer shall certify that he is not fit to be received there he shall be placed in some hospital until restored to health, when he shall be moved to the penitentiary. 9. No convict received into the custody of the principal keeper shall be discharged at the end or other deter- mination of his term if he shall then labor under any acute or dangerous disease, unless at his own request; and when any such convict shall be finally discharged such clothing and assistance, in money or otherwise, as the board shall judge proper, shall be given him. 10. The convicts shall be employed in work according to their capacity and ability, and in such trades as they TITLE V.J PENITENTIARY. 89 according to their capacity and ability, and in sucli trades Chap. 22. as they may be best fitted for, every day in the year except Sundays, Christmas Bay, Good Friday, and any day appointed for a general fast or thanksgiving, so many hours, not exceding twelve, exclusive of the time allowed for meals and exercise as the board shall order ; but they may by a written order allow any convict at his own request to labor for a longer time. 11. TSTo person except the members of the board or '*^'*™'fi°" °^ ■C , ^ ^ . - ^ ^ persona i e- servants or the penitentiary, or persons authorized by the stricted. rules made by the board, shall be allowed at any time to enter any part of the penitentiary used by the prisoners, or to converse or hold communication with-them. 12. The principal keeper, or person under him, having er"ws^poire/sr the custody of the convicts, shall, during the term for which they shall be ordered to remain in custody, have the same powers over them as are incident to the office of sheriff or jailor, and in case of any misbehaviour or negligence in the discharge of his office shall be liable to the same pun- ishment to which a jailor is now. liable. 13. If any convict shall assault the principal keeper or g"°\?^™°°' °^ any officer or servant employed in the penitentiary, the board may order him to be prosecuted therefor, and upon conviction he shall be imprisoned for any term not exceed- ing two years, in addition to the term for which he was in the first instance confined, 14. The governor may at any time order any convict to incorrigible , -,'i, ,-, • . . • • • • 1 1 , convicts, remo be removed from the penitentiary as incorrigible to any toi ot. other prison or place of confinement in which he_ may be lawfully imprisoned. 15. If any convict shall be found insane during his insane con- confinement, and be so reported by the board to the treated."^' governor, he may by warrant order such convict's imme- diate removal to such lunatic asylum as he may judge proper; every convict so removed shall remain under confinement in such asylum until it shall be certified to the governor by the medical superintendent of the asylum or by two physicians or surgeons, that such convict has become of sound mind. If the term of his imprisonment shall not then have expired, the governor may order that such convict be remanded to the penitentiary. If^e period of his imprisonment shall have expired, he shall be discharged. 16. Every convict who during the term of his impri- Escape, ic, sonment in the penitentiary shall break prison, or who '^°'" ''""'^ ^ while being conveyed to prison shall escape, shall be punished by an addition not exceeding three years to the term of his imprisonment. If afterwards convicted of a second escape /)r breach of prison, he shall be guilty of felony ; and every convict who, during the term of his imprisonment, shall attempt to break prison, or who shall 12 90 PENITBNTIAEY. [pARf I. Chap. 22. forcibly break out of Ms cell, or make any breach therein ■ with intent to escape therefrom, shall be punished by an addition, not exceeding twelve months, to the term of his imprisonment, by the order and direction of the governor in council. Rescue, 4c., i7_ ^^v pcrsou rcscuing a convict from the peniten- now punished. . „ "^ -•- , ~ . n • ji -j,! • t tiary, or from the person conveymg mm thither, or aidmg in his rescue, shall be guilty of felony ; and every, person having the charge of a convict, or employed as a keeper or assistant, who shall wilfully allow such convict to escape, or assist him in an attempt to escape, though no escape be actually made, and any person attempting to rescue any convict, or aiding in such attempt, though no rescue be actually made, shall be guilty of felony ; and every person having such custody carelessly allowing any such convict to escape shall be guilty of a misdemeanor, and being convicted thereof shall be liable to fine or im- prisonment, or both, at the discretion of the court. icer^'^unished ^^- EvcTy officcr Or scrvaut of the penitentiary bring- for misconduct, iug Or Carrying out, or endeavoring to bring or carry out, or allowing to be brought or carried out, to or for any convict, money or any article not allowed by the rules of the penitentiary, shall be forthwith suspended by the principal keeper, who shall report the oftence to the board at their next meeting, and the board shall enquire thereof upon oath, which any one of them may administer, and upon proof of the oifence shall dismiss such ofiicer or servant, and may if they think fit cause the ofiFender to be apprehended and carried before a justice, who shall hear and determine any such ofi'ence in a summary way ; and every officer or servant upon conviction of such offence before a justice shall be liable fo-a penalty not exceeding two hundred dollars, or at the discretion of the justice, to be imprisoned in the common jail or penitentiary, there to be kept with or without hard labor for any term not exceeding six months, ^ried'^register, }^- Every convict or person who shall commit any evidence of its' oftencc mentioned herein, for which he is not liable to be summarily convicted, may be tried before the supreme court at Halifax or in the county in which he shall be taken, and in case of any prosecution for any such offence, a copy properly attested of the order of commitment to prison with proof that the person in question is the same who was delivered with such order and the production ot the register of the prison shall be sufficient evidence of all the facts entered in such register as to such convict, without the production of any other proof that such con- vict had been convicted of felony and legally sentenced to imprisonment in the penitentiary. Stabnihment ^^' "^^^ account of the expenses of carrying these how proTidedl provisious iuto execution shall be annually laid before the TITLB V.j SABLE ISLAND. — LIGHT HOUSES. 91 legislature, and after deducting therefrom any profits Chap. 23. arising from tlie earnings of the convicts, the balance shall be provided for by such sums as may be granted by the legislature. 21. The laws for protecting justices in the execution of ^JaJd'^and °^ their office shall extend to the board and the keepers of keepers, the penitentiary. 22. All actions and iDrosecutions for auythina; done in Limitation of pursuance of these provisions shall be laid and tried in the county where the act was committed, and shall be com- menced within six months thereafter. 23. Any person convicted of felony under these pro- J™Pfi|ft°^'"°°* visions shall be liable to imprisonment in the penitentiary for a term not more than fourteen years laor less than one year, as the court shall award. CHAPTER 23. OF SABLE, SAINT PAUL, AND SCATTAE.IB ISLANDS, AND OF LIGHT HOUSES. 1. Any member of the board of works or their super- Persons and intendent, or the resident keeper, or any person acting on''sabieisi'ajiid, under the authority of them or either of them, may appre- of?"' '*'''p°^®'^ hend any person who may be found residing on Sable Island or Saint Paul's Island, having voluntarily gone there for any purpose whatever without a license from the gover- nor describing such person and authorizing him to reside thereon, and may bring him and all property found in his possession to Halifax; and three justices, upon proof that he was so found, may commit him to jail for not more than six months, and further until he give security for his future good behaviour; and whatever property may be found on the islands belonging to any such offender shall by order of such justices be sold, and the proceeds applied to that purpose, and the residue, if any, returned to the owner ; but if it appear that such property has been cast on the shores of the islands, or procured fi'om some wrecked or stranded vessel, it shall be sold, and the proceeds after payment of the expenses paid to the owner or his agent, or otherwise be paid into the treasury for the right owner when discovered, who, upon proof to the satisfaction of a judge of the supreme court of his right thereto, shall receive the same. 2. The board may, from time to time, make rules for ^i-^ls°y^^'^' the government of these islands, and for regulating the islands, how 92 6ABLB ISLAND. — LIGHT HOUSBS. [PAKT I. Chap. 23. duties of the resident keepers thereon, for administering relief to shipwrecked persons and their removal, preserving and removing shipwrecked property, and preventing per- sons not authorized by the governor from taking up their residence thereon, and for the general management of the islands. • Members of^_^ 3_ Every member of the board, and also their superin- a?ras'jMti?J'r tendant and resident keeper, shall have in every respect upon Sable Island and Saint Paul's Island, and in relation to wrecks or wrecked goods there and elsewhere, the same power and authority as a justice of the peace. Vessels and 4. When vcsscls Or goods shall be stranded on Sable l°s°p''osed°of °" Island, Saint Paul's Island, or the bars or coasts thereof, and they or any part thereof shall be saved by any of the board, or their superintendant, or any person under the authority of the board, they shall be taken in charge by the superintendent or keeper and sent to Halifax to be disposed of by the board for the benefit of the owners after payment of salvage to the establishment of Sable Island and Saint Paul's Island, and all other expenses incurred with respect to them, unless the board shall give contrary orders to the superintendant or keepers ; and all goods so saved shall be held to be in the possession of the board, and shall not on any pretence be taken out of the custody of such superintendants or keepers, or persons employed by either of them, except by order of the board, nor until payment of the salvage and expenses ; and such goods shall be liable to duties. Sable island 5_ Jq all proceedlnffs in any court. Sable Island shall within Halliax -i. i ® f^Tr t r^ t a • j ~rt d county. be held withm the county oi Jdalirax, and Saint Paul s Island in the county of Victoria ; and any person charged with committing any criminal offence committed thereon, St. Paul's Vic- qj. on the shores, banks, or bars thereof, mav be proceeded tovia county. . .^.' .„',., , ' ''--.c^,,., against and tried as it the islands were actually withm the body of such counties respectively. st^'pa°urs and ^- There shall be annually paid to her majesty, out of soatterie lights, the public revcuucs, towards the support of the light houses and humane establishments on the islands of Saint Paul's and Scattarie, so long as they shall continue in operation, such sum of money as shall from time to time become payable on the x^art of this province under the terms ot an award made on the sixteenth day of August one thousand eight hundred and thirty-six, at Miramichi, by commissioners or arbitrators appointed for that purpose by the provinces of Lower Canada, ISTew Brunswick, iN'ova Scotia, and Prince Edward Island, and the governor shall in each year draw his warrant for such sum in favor of the board of works. title v.] public becords. 93 Chap. 24. CHAPTER 24. OE THE PUBLIC RECORDS. Vested in Iier majest)'. 1. The books, papers and records of all public oflS.ces, provincial and county, are hereby vested in her majesty the queen and her successors. 2. If any person shall wrongfully take, withhold or o"4't'jfi^i'i^'"s retain possession of any public document, book, record, them may be writing, or other paper, he may be proceeded against for against.'^ the recovery of the same in a summary manner. 3. Upon grounds laid by affidavit before the supreme ^^°['Jj® 3°^ p'-'"' court or any judge thereof, an order, at the instance of one of the law officers of the crown, may issue at the suit of her majesty, requiring the parties in whose custody such documents, books, records, writings, or other papers are to be given up to the proper custodian, or as therein directed. 4. It shall be in the discretion of the court or judge order to bo m granting the same whether an order absolute or an order court or jud&e nisi shall be first granted ; and costs shall foUoAV when an costs. order is obtained, unless otherwise directed. 5. Any party feeling aggrieved by the order of a single Appeal. judge may, upon filing with the prothonotary in Halifax a bond to her majesty in a sum to be named by a judge of the supreme court for security for costs, appeal from the decision of a judge to the court at bar, where the whole matter may be heard and disposed of as such court may decide. TITLE VI. OP THE MANAGEMENT AND EEGULATION OF THE PUBLIC DOMAIN. OHAPTEE 25. OF MINES AND MINERALS. 1. The word " mines " in this chapter shall mean any definition of^^ locality in which any vein, stratum or natural bed of coal or of metalifierous ore, earth or rock, shall or may be worked. The verb "to mine" in this chapter shall include any "to mine." mode or method of working whatsoever, whereby the ore, earth, or soil, or any rock, may be distributed, removed, washed, shifted, smelted, refined, crushed, or otherwise dealt with, for the purpose of obtaining gold, coal, iron, copper, or any other ore or metallic substance, and whether the same may have been previously disturbed or not. 94 MINES AND MINBRiLS. [part I. Chap. 25. Gold bearing quartz. Gold elsewhere than in rock. Chief commis- sioner of mines and deputies; how appointed. To have power, of justiee of the peace. Proviso. Inspector of mines; how appointed — his duties, &c. Duration of of&ce — bonds to be given. Salaries. Incapable of sitting or voting in house of assembly. 2. Gold bearing quartz shall be held to mean all auri- ferious rock in siiii. 3. Gold elsewhere than in rock in situ shall mean alluvial mines. 4. The governor in council is hereby authorized to select and appoint, when and so often as occasion may require, a suitable person to act as chief commissioner of mines for the province, and suitable persons to act as deputy com- missioners of mines in the several districts hereinafter pro- vided for, one of whom shall be named provincial deputy commissioner, and to define the limits of their jurisdiction respectively ; and by virtue of and during the continuance of such appointment, such chief commissioner of mines within all the gold districts, and such deputies within the districts to which they are respectively appointed, shall exercise the power ot justices of the peace ; provided always that no such commissioner shall act as a justice of the peace, at any court of general or special sessions, or in any matter out of session except for the administering of affidavits, the preservation of the peace, the prevention of crimes, the detection and commitment of olFenders, and in carrying out the provisions of this chapter. 6. The governor in council shall also appoint an inspec- tor of mines, who shall be a competent, scientific, practical coal-mining engineer, Avhose duty it shall be to visit from time to time as may be deemed necessary, and inspect the various mines belonging to or under lease from the crown, to ascertain if the laws, stipulations and agreements rela- tive to the working and management of such. mines, and to the payment of rents and royalties accruing therefrom are complied with ; and if the same are being worked in a scientific, workmanlike and efiective manner, due regard being had both to maintaining the value of such mines and providing for and protecting the safety of the persons employed therein ; and the inspector of mines shall, from time to time, report in accordance with the facts to the chief commissioner of mines. 6. The chief commissioner of mines and his deputies, and the inspector of mines, shall hold office during pleasure, and shall give bonds for the faithful discharge of their duties, in such sums as may be fixed by the governor in council. The salary of the chief commissioner of mines shall be two thousand dollars. The salaries of the deputy commissioners shall be fixed by the governor in council not to exceed three dollars per day while actually employed. The salary of the inspector of mines shall be fixed by the governor in council. 7. The chief commissioner, deputy commissioners, and inspector of mines, shall be incapable of being elected to, or of sitting or voting in, the house of assembly ; and any such commissioner, deputy commissioners, or^inspec- TITLE VI.] MINES AND MINERALS. 95 tor of mines, wlio shall sit or vote as a member shall forfeit Chap. 25. two hundred dollars for every day iu which he shall so sit Forfeiture, how or vote, to be recovered in the supreme court. recoverable. 8- No chief commissioner, deputy commissioner, or ^n^^oJ^using"" inspector of mines, shall vote, or take any part, or use any inffuence at influence, directly or indirectly, in the election of any """^ representative to sit in the assembly, under a penalty of how recover- two hundred dollars for every such offence, to be reco- 'i"^- vered in the supreme court. 9. E"o chief commissioner, deputy commissioner, or ^estedta^ '"' inspector of mines, shall be directly or indirectly interested '^'°<*; «=' "^ ^ , '. . .•'•t'^ -, agent, &c. of in any mine or mining operations, or in the proceeds or party inter- profits thereof, nor shall he act as the agent or attorney of any person interested!, therein, under a penalty of one thousand dollars for every offence to be recovered in Ihe feToverabTe" supreme court. OP GOLD MINES. 10. The governor in council, on being satisfied of the dis- ^ow estlbiish- covery of gold in any locality, may, by proclamation [m the ed, &c. royal gazette, declare such a locality to be a gold district, and assign limits and boundaries to such district, and from time to time enlarge, contract, or otherwise alter such limits. 11. Quartz mines shall, so far as local peculiarities or ^ow\aid"off;^' other circumstances may permit, be in general laid off" in areas of one hundred and fifty feet along a quartz lode, by two hundred and fifty feet across, which shall hereinafter be known and described as areas of class number one. 12. Areas shall be laid out, as far as possible, uniformly. Areas, form of and in quadrilateral and rectangular shapes. Measure- *°' ments of areas shall be horizontal, and each area shall be bounded by lines vertical to the horizon. 13. Alluvial mines not under lease at the time of the ^""Yafdour^ passing of this chapter, and alluvial mines under lease at such time, but which shall hereafter be surrendered by their lessees, or become forfeited to the crown, shall be laid out, as far as local peculiarities will allow, as directed in case of quartz mines, the courses of the respective boundary lines of such mines to be decided by the chief commis- sioner of mines; and the advance payments, or rents, and royalties, shall be the same as those of quartz mines. 14. The chief commissioner of mines, and each deputy, chief commia- shall be provided with a book of record, wherein shall be puty^ic'ltp''^" entered all applications for areas, with the precise time of 1^^!^°''*'°" their being made, showing the description of area applied for, the amount paid, the name or names of the applicants in full, with the name of the party paying, which shall be open at all reasonable times to the inspection of all persons open foi- in- desiring to see the same ; and as each applicant shall pay apection. for and file his written application for a mine, the name of fatioL".^ ''''^''" the applicant shall be written on the area or areas applied for; and each deputy commissioner shall make a return |ils™°°'^'^°P"' 96 MINES AND MINEEALS. [PART I. Chap. 25. weekly, or oftener if required, to the chief commissioner, of all applications so made, and of the names written on the plan required by the fifteenth section, and remit the amounts paid. Plans to be pre- ^5. It shall be the dutv of cach deputy commissioner pared and kept J n i ""^ l p xl l i andareasmark- to prepare, wheu neccssary, and keep a plan or tne gold t ereon. f^Q\^ qj, fields withiu his jurisdiction, with the areas that shall have been laid off distinctly marked thereon; and with his weekly or other return to the chief commis- ?e'tu^ned^yeek°- sioncr he shall forward a duplicate plan of all surveys ly^ made during the week, if any ; and the chief commissioner shall cause such plan to be forthwith copied upon a general General plan, plan to be prepared and kept by him of the gold fields in question. Application,^ 16. The deputy commissioner shall on receipt of an application endorse thereon the precise time when received ; but no application shall be valid unless made in writing, defining the area applied for, and accompanied, except in case of free claim by discovery under the provi- sions of this chapter, by the advance sum hereinafter required to be paid for such area. Advance to be 17. The advance sum to be paid upon every application Son.°° "^^ '"'' made after the passing of this chapter for a gold mine shall be at the rate of two dollars for each area of class number one ; but nothing herein contained shall prevent the repay- ment out of royalty accruing from the leased premises of any such advance sum paid in accordance with any former act of this province. Private lands, 18. Applicants for leases of mining areas on private SvlTo™ '^^' lands may arrange by agreement in writing with the pro- prietors for leave to enter, and for easements and for damage to lands ; and in such case the agreement shall be deposited with the chief commissioner, or deputy com- missioner for the district, and the applicant shall there- upon be immediately entitled to his lease, and to enter and mine upon the area applied for. When no agree- 19. "When uo agreement shall have been made between tors°to''be'™-" the applicant for a mine and the owner of the land as pointed, how, provided for in the eighteenth section of this chapter, it shall be lawful for the said applicant to give notice to the owner, tenant, or other persons interested therein, to appoint an arbitrator to act with another arbitrator named by the applicant, in qirder to award the amount of damages towhich the owner, tenant, or other person interested in said land shall be entitled by reason of the opening of a mine thereon, and such notice shall be personally served upon the person or persons to whom addressed, or left at his, her or their last place of abode at least ten days before the expiration of the time therein limited for the appointment of such arbitrator. beswotn-ttelr 20. The arbitrators thus chosen by the applicant, and duties, powers, ^j^g owner, tenant, or other person interested in the soil> TITLE VI.] MINES ANb MtNEEALS. 9t shall be sworn to the impartial discharge of the duties Chap. 25. assigned them ; and they shall forthwith proceed to esti- mate the reasonable damages which the owners and tenants of such land, according to the several interests therein, shall sustain by reason of the opening of neces- sary shafts and other excavations, the construction of roads and drains, the erection of necessary works and buildings thereon, and of the occupation of so much thereof to be determined by the inspector of mines in the event of any question arising thereupon, as the applicant may require for all other purposes connected with the opening and working a mine or mines to the most advan- tage thereon. In estimating such damages, the arbitrators shall value the land irrespectively of any enhancement thereof" from the supposed existence of gold or other minerals, ores or metallic substances therein or in the incaseofdis- neighbourhood thereof. In case- the arbitrators cannot sffeoT^hM!" agree they may select a third arbitrator. . 21. 'When the proprietor is unknown or cannot be J^'^®'' °° ^oi"': found, or upon notice refuses or declines to appoint an edbypropri- arbitrator, or whei^ for any other reason no arbitrator is coraty to°ap°-^ appointed by the proprietor or proprietors within the time p°'"' ^°' ^'™- appointed therefor in the notice provided by the nine- teenth section, the custos of the county wherein the lands lie shall appoint one on his or their behalf; and when two arbitrators cannot agree upon a third arbitrator, as directed in the last section, the custos of the county shall select such third arbitrator, who shall be sworn as aforesaid. The award of any two of the three arbitrators made in Award. writing shall be final. 22. When it shall be made to appear to the chief when^piioant commissioner of mines that the applicant has paid the enter. damages awarded against him to the person or persons entitled to receive the same, he shall be entitled to enter upon the area applied for and to receive a lease thereof as hereinafter directed. 23. When the right shall be in dispute, or the persons when right in entitled be unknown or uncertain, the party liable therefor knwn*^ &c.^'^ shall pay the awarded damages to the county treasurer ; paid to^county such payment to the county treasurer to be equivalent to treasurer. the payment hereinbefore directed. 24. Payment of such damages, by the party liable o^^^'art^^' therefor, to the persons designated by the award as entitled makSig it. thereto, or if the award shall not designate the persons entitled, to such persons as, in the absence of any dispute, shall be' ostensibly entitled thereto, shall exonerate the party making payment; but any persons subsequently claiming to have been entitled to the damages so paid, may prosecute their claim by action for money had and received against the persons to whom the payment shall have been made. 13 98 MINES AND MINEKALS. fPART Chap. 25. Disputed title ; damages; liow paid. Mining lessee not implicated. Award not to be set aside for informality, &c. Lessees, &c. answerable for other damages. iDuration of leases — surren- der &c. Forfeiture. Holders of mi- ning leases to mse lands for mining pui*- poses only. 25. In case of disputed or unknown title, the supreme court, or a judge thereof, on application of the claimant, shall order the damages paid to the county treasurer, to he paid to the persons who, on due investigation hy such court or judge, shall have established their right; but no order shall be made until it shall be shown that notice has been given sufficient in the judgment of the court or judge to protect the rights of all persons who may be or who may claim to be interested. 26. The mining lessee or licensee, shall not be implica- ted in controversies between persons contesting title to the damages. 27. In no case in which the award shall find the amount of damages with sufficient certainty shall such award be set aside, because the persons entitled to damages are not designated by name or sufficiently designated, or by reason of irregularity as to the persons entitled or of any matter of form ; but a judge or the supreme court shall rectify any error or informality, or shall adopt such proceedings as may be necessary for determining to whom the damages may be paid, or for otherwise carry^g into effect the provisions and intent of this chapter. 28. The parties obtaining licenses and leases under this chapter and those deriving title under them, shall be answerable for damages that may ensue from the falling in of lands or for other injury which may be sustained by the owners or tenants of such lands subsequent to the agreement for or award of damages required by the fore- . goin^ sections, by reason of the works of the parties obtaining licenses or leases, or of those under them or deriving title from or through them. 29. All leases shall be for the term of twenty-one years ; but the holder of any such lease may at any time surren- der the same by notice in writing signed by him and filed in the office of the chief commissioner of mines; but nothing herein contained shall be construed to discharge him from liability in respect of any covenants in the lease, for or in respect of any act, matter, or thing for which, at the date of such surrender, he was liable under the terms of such lease. •30. Such leases may be forfeited on failure to pay the stipulated royalties other than those arising from quartz crushed at a licensed mill, or to keep employed annually on the demised premises the number of days' labor herein- after specified, or to comply with any other of the provi- sions and stipulations in the lease contained. 31. The holder of such mining lease shall not use any part of the lands so demised for any other purpose what- soever, except such as shall be necessary for making roads, opening drains, erecting necessary works, buildings, and all other purposes connected With the opening and working TITLE VI.] MINES AND MINERALS. 99 such niines to the most advantage ; and all necessary ways Chap. 25. and watercourses on the demised premises, whether ex- pressly reserved in such lease or not, shall he considered as reserved to the crown, and in respect to the hiaking, alteration and use thereof, shall be subject to such orders and regulations as the governor in council may from time to time consider expedient ; and all licensees and lessees and other persons employed about the mines on such demi- sed premises shall use the lands in such manner as will he least injurious to the owners and occupants of such lands, or any other lands lying contiguous thereto. 32. There shall be employed annually on the demised hoff^egSiatcd" premises a number of days labor equivalent to one hundred days for every number one area comprised therein. But any lessee holding ten or more but less than twenty areas of class number one in any one gold district, will not be re- quired during th.ejirstjea,r of his holding to keep employed more than three-fourths of the number of days labor above required to be performed per area ; in like manner if holding twenty or more, but less than thirty of such areas in the same district, he shall be required to keep employed only one half; and if holding thirty or more, onlj' one fourth the above required number of days labor during such first year. This section shall apply to all leases the first year whereof terminated on or after the first day of April, A. D. 18^4. 33. In computing the number of days labor employed how computed by any lessee at the termination of any one year, all or any of the leases which he at the time holds of mining areas in any one district, not exceeding twenty-four in number, may for this purpose be tacked and considered as one lease ; and if it is ascertained that an amount of labor equal to the whole amount which he is required to have performed upon the whole of the said areas, has been actually expended upon any one or more of said areas, the law in this respect will be held to have been complied with, although the lessee may not have employed upon each separate mining area the number of days labor required by the last preceding section. This section shall apply to all leases the first year whereof terminated on or after the first day of April, a. d. 1864. 34. Where a lessee shall have employed in any one J'Jbo"™ erform- year a part only of the amount of labor required to be ed, forfeiture ' performed by him annually upon the premises demised to ^"^ ^* ' him in any one district, or under any one lease, the whole of the areas held by him in such district Or under such lease, shall not necessarily become forfeited therefor, but only a part of such demised premises proportionate to the number of days labor which such lessee has failed to have performed, shall become forfeited ; and such lessee shall make selection of that part of the demised premises which 100 MINES AND MINERALS. [PAKT I. Chap. 25. Right to select. Notice of selec- tion. New lease of part. Proviso. When lease for- feited, title of lessee to veat in crown. Lessees may remove build- ings, &c. Applications for mines without a gold district, r ow governed. Where mine occupied pre- vious to April 1st 1864, and no agreement made with pro- prietor, chief commissioner shall proceed to settle damages. he will retain. To avail himself of the provisions of this section a lessee must make known his selection by notice in writing to the chief commissioner of mines within ten days after the termination of the year for the non-perform- ance of labor during which a portion of the premises demised to him became forfeited ; and the areas selected by him to be retained shall so far as possible be in a com- pact block and not detached from each other, and no number one area shall be divided in making such selec- tion. Should any one lease contain areas thus retained and also areas which are forfeited, such lease shall be surrendered by the lessee who shall receive a new lease of the new areas so retained, and for the unexpired portion of the term for which the surrendered lease had been given. Provided that on obtaining such new lease, and by the same, the lessee shall be required in addition to the work to be done thereunder, to do the work unperformed by him under the surrendered lease. 35. "When from any cause whatsoever a leased mine shall become forfeited to the crown under the proceedings directed by the 73rd clause of this chapter, all the right, title and interest which the holder of such forfeited lease had therein immediately previous to such forfeiture, shall upon such forfeiture become thereby vested in the crown ; but the lessee of any mine may during his lawful occu- pancy thereof take down and remove any houses, build- ings, machines or other erections built or placed by him thereon, notwithstanding that the same be considered in law as attached to the freehold. 36. Applications may be made for ^ mine or mines upon lands not lying within any proclaimed gold district, and in such case the rights of parties and the proceed- ings to be taken with reference thereto shall be governed as far as possible by the spirit and provisions of this chapter. Parties occupying and staking oiF areas corres- ponding in size with those prescribed hereby shall be entitled to priority in the order of their making applica- tion as hereinbefore required to the chief commissioner of mines. In case the lands so applied for shall afterwards be included within any gold district, and laid off as hereinbefore prescribed, the rights of the occupants shah, be respected so far as is consistent with the terms of this chapter, in adjusting the boundary lines between the parties in occupation. 37. In all cases where mining areas have, previous to the first day of April, 1864, been leased, or have been occupied by virtue of a gold commissioner's authority, on private lands not subsequently revested in the crown, and with respect to which no agreement has been made, nor was on the first day of April, a.d. 1864, being negotiated, for land damages between the lessee and the owner of the TITLE VI.] MINES AND MINEKALS. \ ' >, 101 soil, the chief commissioner of mines shall proceed to Chap. 25. arrange with the owners of the soil for such damages "by mutual agreement or arbitration, and to pay such damages in the manner and form prescribed by the eighteenth and subsequent sections of this chapter for applicants for mining leases ; and in such cases the chief commissioner of mines shall occupy, so far as circumstances will permit, the same position relative to the owners of the soil which, under the clauses above referred to, would be held by an applicant for a mining lease on private lands whose appli- cation is made after the passing of this chapter. 38. The chief commissioner of mines mav issue licenses P'ospecting t n Till- TIT • -1. hceuseyto be. to search tor gold, to be called "prospectmg licenses, issued bycinef which shall be subject to the rules prescribed by this ofmi^eT""'"^ chapter. 39. Such licenses may include any area not exceeding Area of same; one hundred acres in extent, so as the same shall be laid ^°™°""- off in quadrilateral and rectangular figures, and shall not in length exceed double the breadth thereof 40. Such licenses shall be in force for any period not Duration of. exceeding three months from the date thereof. 41. All applications for prospecting licenses shall accu- Application tor. rately define by metes and bounds the lands applied for, and shall be accompanied by a payment at the rate of fifty '^^y™^"'' ''''■ cents per acre for every area up to ten acres in extent, and twenty-five cents for every acre in addition to that extent. 42. Before such application shall be granted the appli- ^ven'ror dam- cant shall enter into a bond with two sureties to the ages to privata j-rt.- _£»j_i •• f»- I lands, &c. satistaction oi the commissioner or mines to recompense the proprietor of the soil in the event of entry being made on private lands for damages done to his lands ; to employ and lay out during the continuance of the license in prospecting the lands applied for labor to the extent of one man per day for every lot not exceeding five acres in extent, and for any quantity above five acres at the rate of one additional half day for every additional quantity not exceeding ten acres; and to make the quarterly returns and to pay the royalties hereinafter required. 48. If the proprietor of private lands so entered upon Damages to shall seek damages he shall before the end of three lowMcovei'ed. months after the expiration of the license make his claim in writing against the holder of said license, detailing the particulars and amount of claim ; and if the claim is not adjusted by agreement between the parties within one month after notice thereof as aforesaid it may be settled by arbitration in accordance with the provisions of section eighteen and subsequent sections of this chapter ; but in such case either of the parties may give the required notice to appoint an arbitrator, and the custos of the county may appoint an arbitrator on behalf of either of such parties neglecting or refusing to make such appointment. 102 MINES AND MINERALS. [PART I. Chap. 25. 44. The holder of a prospecting license who shall have Holder entitled fulfilled all the terms and conditions thereof shall be to renewal. entitled to a renewal thereof for a second period of three months upon like terms and conditions, except that the price of the same shaU be only half that paid on the pre- vious application. S"8'eieot''a'rea3'! 45. Within the period for which the license or renewed io. and to lease! license 18 granted the party holding the same shall be entitled to select any area or areas not exceeding one quarter of a mile on the lode and in breadth five hundi-ed feet comprised therein, in form as described in this chap- ter, and shall be entitled to a lease of the areas selected upon the terms imposed herein. notTo°affec"'^ 46. 'Ho Icasc uor any prospecting license shall authorize «uiti™^d lands entry upon any buildings or the curtilage appertaining to consent of any housc, store, barn or building, or upon any garden, occupier. orchards or grounds reserved for ornament or under culti- vation by growing crops and enclosed, except with the consent of the occupier or by special license from the governor in council authorizing such entry to be granted, on special application setting forth the circumstances under which the same is applied for and on such terms as the case may require. Bojaity reser- ^rj ^ Q^ ^^l leases of gold miucs and prospecting licenses to search for gold there shall be reserved a royalty of three per cent upon the gross amount of gold mined. New discoverer 48. The discovcrcr 01 any new mine shall be entitled \ealt^^ *° ^^^^ to a lease for twenty-one years free from advance pay- ment or royalty, of an area of class number one as pre- scribed by this chapter. how far^d^St 49. No pcrsou shall be considered the discoverer of a from known ncw quartz miuc unless the place of the alleged discovery shall be distant, if on a known lode, at least three miles from the nearest known mine on the same lode, and if not on a known lode at least one mile at right angles from the course of the lode ; if in alluvial workings, at least two miles distant from any previously discovered mine. mms"m'achi- 50. It shall uot be lawful for any person or persons to nery, tc. ^ge qj. employ any mill or machinery, other than mills or machinery worked by hand, for the crushing or reduction of quartz or the obtaining of the gold therefrom by crush- ing, stamping, amalgamating, or otherwise, vrithout a license therefor first had and obtained. Jhief cimmis-'' ^^: I^iceuscs shall be signed by the chief commissioner sioner of mines, of minCS. deSon'Sf"'' ^2. The words "licensed mills" when used in this term. chapter shall signify mills and machinery so licensed ; and oinTrTde'fini. the words " licensed mill owner," the person or persons tion of. iQ whom such license shall be granted. '*'""^- 53. ' Before any such license shall be granted the party applying therefor shall enter into a bond to her majesty in the penalty of two thousand dollars. TITLE VI.] MINES AND MINERALS. 103 54. Licensed mill owners shall keep on the demised Chap. 25. premises a book or books of account to be supplied by the Books to be " commissioner of mines, which shall at all times be open to in3^*4o° ion o? the inspection and examination of the commissioner of commissioner mines or his deputy, the inspector of mines, or any other deputy^^ "'^ person thereto authorized by the commissioner of mines ; in which book or books shall be entered a clear and dis- tinct statement of all quartz crushed, amalgamated or reduced at such licensed mill, and the following particu- lars in respect of the same : I. The name of the owner or owners of each distinct madettiere'iD.' parcel or lot of quartz crushed. II. The weight of each such parcel or lot. m. The date of the crushing of the same. IV. The actual yield in weight of gold from each such parcel or lot. V. The royalty thereon calculated at three per cent. VI. The mine or area, so far as the same is known or can be ascertained, from which each such parcel or lot was raised. 55. Each licensed mill owner shall separate from the Koynity, how yield or produce of gold of each lot or parcel of quartz as ''*'^' *"' crushed three parts out of every hundred parts of such yield as the portion thereof belonging and payable to her majesty as royalty, and shall pay vie same in such weekly or other payments as the chief commissioner of mines shall order into the office of the chief commissioner of mines or his deputy for the district, or otherwise shall pay as aforesaid the equivalent in money for the same at the rate of nineteen dollars and fifty cents per ounce troy for smelted gold, and -^eighteen dollars and fifty cents per ounce troy for unsmelted gold. 56. So soon as gold shall be obtained by amalgamation Koyity- or otherwise from any parcel or lot of quartz crushed at any licensed mill, three parts in the hundred of such gold shall forthwith thereafter be and become the property of her majesty. 57. In case any licensed mill owner shall fail to pay on failure to such three parts on the hundred of gold or money in lieu mifiownlr^ thereof in the mode and at the times prescribed by this "*"* *° '"'"™- chapter, he shall be liable to an action at the suit ot the commissioner of mines as for money had and received to his use for the value of said gold, estimated at nineteen dollars per ounce troy. 58. Such action may be brought according to the Action; how amount of the claim before the same courts which would ""^ have jurisdiction in case the amount claimed were an ordinary private debt. 59. Each payment of gold or money made by a licensed Payment by mill owner shall be accompanied by a copy of so much of nill *°°°™p*' his said book of account as shall be required to show the 104 MINES AND MINERALS. [PART. I. Chap. 25. particulars prescribed by the fifty-fourth section hereof, which shall be verified by the affidavit of the person principally employed in keeping such account made before the commissioner of mines or his deputy or before a justice of the peace ; and on failure to make such returns or to verify the same as afores&,id the license may be revoked by the commissioner of mines, subject to appeal as prescribed in section sixty-two of this chapter. workin"raii?4e ^*^- ^^J owncr or part owner in any mill or machinery without license, for the crusMug or reduction of quartz or for the obtaining of gold therefrom (other than mills or machinery worked by hand) which shall be engaged, used or employed in the crushing or reduction of quartz, or in the obtaining of gold therefrom, without a license therefor first had and obtained as prescribed by this chapter; and any person or persons engaged as agent, servant, workman, clerk, or otherwise in any such mill, shall forfeit and pay each the sum of four hundred dollars for each ofience, and for every day in which such offence shall be continued the same shall be consi- dered a new offence. Licenses may 61. When the accouut books prescribed by this chapter fraudTn ac- °'^ Or any of the accounts hereby required, shall be fraudu- eount books, ^^^^-^^ ^^ falsely kept, or the affidavits hereby prescribed, or any of them shall be false or fraudulent, the license to the mill in respect of which the offence has been commit- ted may be revoked. SoneATen-'^' 62. The chief commissioner of mines shall be authori- le^edftaud'&c. ^^'^ ^^ inquire into any such alleged fraud, and to revoke such license if satisfied that such fraud has been committed, Appeal, 4c, ^^^ j^^g judgment shall be subject on appeal to the revision of a judge at chambers who shall make such order in respect of the same as shall be agreeable to law and justice, orde^qSion and if hc thinks fit may order any question of fact to be Penalty for 63. In addition to the forfeiture of liccnsc, any Hcensed tioSto'forfeft- ™-ill owuer in respect of whose licensed mill such fraud ure of license, g^all havc bccu Committed, shall be liable for each offence to a penalty of not more than two thousand dollars, to be recovered in the supreme court. royal™ p£d° 64. Evcry licensed mill owner who shall in all respects have complied with this chapter, shall be entitled to receive from the chief commissioner of mines at the end or expi-, ration of every three months from the date of his license, a sum equal to five per cent upon the amount paid over by him as royalty during such period. Miiiowner. may 65. A licensed mill owner may at anytime surrender "iJen™.^"^ his license by delivering the same into the office of the commissioner of mines,. with a written surrender endorsed thereon, but no such surrender shall take effect till after the lapse of ten days fi-om the filing at the office of the chief commissioner of mines of a notice in writing of the intention of such mill owner to surrender the same. TITLE VI.] MiNfiS AND MINJERALS. 105 66. Upon such surrender taking effect as aforesaid, Chap. 25. such, mill shall cease to be a "licensed mill" until again on such aur- licensed under the provisions of this chapter. to ^aae!"^"'* 67. The licensed mill owner so surrendering his license muownertobs and his sureties shall remain liable under their bond for cmedobiiga- all obligations accruing thereunder up to the time when ''°°'- the surrender takes effect as aforesaid; but shall not be liable for obligations accruing thereafter. 68. Lessees of mines shall be bound to make to the Lessees of fo f tT . T ' £> ' ' ^ • 1-1 I mines to mak» omce 01 the chief commissioner oi mines or his deputy returns quar- for the district, on the first day of January, April, July *^''^' and October in each year a true and correct return to the best of their knowledge and belief, on forms to be supplied by the chief commissioner of mines, in which shall be comprised the following particulars : I. The number of days labour performed on the demised premises during the preceding quarter. H. The number of tons of quartz raised from the demi- sed premises during the preceding quarter. in. The person or persons to whom the same has been sold or disposed of, and the different lots or parcels in which the same have been sold or disposed of, with dates. rV". The weight of quartz sent by him during the quarter to any licensed mill, and the name and description of the mill to which the same has been sent ; and when the same has been sent and kept in distinct parcels, the weight of each separate parcel. V. The yield of each separate parcel or lot, as returned and allotted by the mill owner, Avith the date of allotment and of receipt. VI. The quantity of all gold obtained from the mine in any manner during the quarter, distinguishing that result- ing from the quartz crushed at licensed mills from the gold otherwise obtained ; which return shall be verified by affidavit to be made before the commissioner of mines, one of his deputies, or a justice of the peace. 69. The lessee of each mine shall be liable for royalty ^r^joyJt*'^,!'^ upon all gold obtained from his mine in any other way au gold obtain than from quartz crushed at licensed mills ; but he shall than from''^ be exempted from any claim in respect of gold obtained ly^uce^let^^ from quartz so crushed, the liability of the mill owner for "^i"=' such royalty being hereby substituted instead of that of the lessee. 70. When any parcel of quartz from a free mine shall foyaity return- have been crushed at a licensed mill, the owner of the "*• quartz on proof of the facts to the satisfaction of the com- missioner of mines, shall be entitled to receive from the chief commissioner of mines the amount deducted by the licensed mill owner and paid as royalty under the provi- sions of this chapter: 14 106 MINES AND MINERALS. [PART I. Chap. 25. 71. In case any holder of a lease granted under this Lessee liable to chapter shall fall to make payment of any royalty accruing u?e topa/Jdy- Tinder the terms of the sixty-ninth section within ten days aity. after the time prescribed by this chapter for making his return to the chief commissioner or his deputy, he shall he liable to an action at the suit ot the commissioner of mines, as for money had and received to his use for the value of the royalty so accruing, estimating the same at nineteen dollars per ounce troy. Action, how 72. Such actiou may be brought according to the amount brought. claimed before the same court which would have jurisdic- tion in case the amount claimed were an ordinary private debt ; and on a change of commissioner of mines, actions prosecuted by him shall be continued and prosecuted by and in the name of his successor ; and a commissioner may prosecute in his own name as for money had and received to his use, although the action for the same had accrued to a previous commissioner. tarefhowlnvi^- '^3. In any case of alleged forfeiture of any mining tigated, 4c. leasc for non-compliance by the lessee with the terms, stipulations and conditions therein contained or by this chapter required, the deputy commissioner for the district, or if the leased premises are not within a proclaimed gold district, or are in a gold district where there is no deputy commissioner, then the chief commissioner of mines shall investigate the said case and decide in a summary way thereon ; and where such decision declares the lease in question to be forfeited the chief commissioner or deputy commissioner so deciding shall immediately thereafter have a notice personally served upon such lessee, or some or one of them where more than one are included in the same lease, or his or their agent or person principally employed on the premises, if to be found within the gold district, and if not, such notice shall be posted up upon the leased premises, which notice shiall convey the decision of the commissioner or deputy commissioner, and briefly state the grounds thereof. The deputy commissioner shall also in all such cases report his decision to the chief com- missioner with a statement of the facts upon which the same is founded. c^K.7commi9- '^^' ^ within ten days after the service or of the post- sioner. ing up such uoticc tlic Icsscc Or lessees against whom the decision was made, or any person acting on his or their behalf, give notice to the chief commissioner of mines that he is aggrieved at the decision of the deputy commis- sioner and appeal against it, the chief commissioner shall appoint a time and place for hearing such appeal, of which such lessee or lessees shall have reasonable and timely notice ; and at such time and place the chief commissioner shall proceed to investigate the case anew and decide upon the whole facts thereof. TITLE VI.] MINES AND MINEKALS. 107 75. From the judgment of the chief commissioner of Chap. 25. mines, either in the first instance or on appeal, the party Appeal to judge interested may appeal to a jvidge at chambers, provided «■' <^'iamber5. that notice of such appeal be given to the chief commis- sioner of mines within ten days from the date of his decision ; provided also that the party appealing shall on applying for such appeal make and file with the chief commissioner of mines an affidavit that he is dissatisfied ' with such judgment, and that he verily believes the lease has not been forfeited, and that the conditions in respect of which the forfeiture has been declared have really and truly been perfoi-med and fulfilled, and shall within two days thereafter enter into a bond with two sufficient sureties in the penalty of fifty dollars, to enter and prose- cute his appeal according to the provisions hereof, and pay all costs which may be adjudged against him by the court of appeal. 76. On such appeal being perfected the chief com- fJ^\''™°^?otl^o'"' missioner of mines shall transmit to the prothonotary at notary.^'" ™ Halifax the notes of testimony taken before him ; and the judge at chambers shall confirm or set aside the judgment or try the case de novo, or make such order thereon as is agreeable to justice and in conformity with law. 77. If the judge shall consider that the case involves judge may questions of controverted fact on which he may be of ■'ury."""^'' '° "' opinion the verdict of a jury should pass, he may make an order remitting the trial of the question or questions of fact to the county where the land lies, in which case all the papers shall be transmitted to the prothonotary of that county; and the cause shall come on for trial in its place in the same way as ordinary appeals ordered to be tried by a jury. 78. Upon the finding of the jury on the facts the «/ ^Sre™' judge shall pronounce judgment on the whole case. So interest of ' soon as judgment declaring forfeiture of the lease shall be to^cease" """° given, either by a deputy commissioner without appeal, the chief commissioner without appeal, or by the court of appeal when the commissioner's judgment is appealed from, the lessee and all persons holding under him shall thereafter cease to have any interest in the mine leased, and the same shall be open to be leased to any other applicant in the same way as if no lease thereof had ever passed. 79. The chief commissioner of mines shall have power ^.'"''f oommia- 1 ^ T ' n-* H -I n T sioiier may re- by warrant to the sheriff or any constable of the county move parties in wherein the gold district lies to remove any party in ForfeUedmines. possession of a mine so adjudged to be forfeited. 80. Any person found mining in any lands belonging ^^^'j^j^'' '"®" to the crown, or on any land of a private proprietor, the minerals in whicl} b^slong to the crown, or entering thereon 108 MINES AND MINERALS. [part I, Chap. 25. Proviso. Each day a die- tinct oflFence, Complaint, liow adjudicated UpOD, &c. Appeal. Bonds to her given. Gold unlawfully mined; how recovered, &c. This chapter not to prevent her majesty using other re- medies to re- cover possesion for the purpose of mining, Bhall be liable to a penalty for each offence of not less than ten dollars nor more than fifty dollars ; but this section shall not extend to parties prospecting or searching for mines. 81. Parties violating the provisions of the preceding section shall be considered guilty of a distinct offence for every day they shall unlawfully mine. 82. On complaint in vrriting made to any justice of the peace of the county in respect of such unlawful mining or entry to mine, the justice shall issue his warrant to apprehend the offender and bring him before the justice to answer the complaint ; such justice shall thereupon forthwith enter upon the investigation of the complaint, and in case he shall find the party guilty impose such fines or penalties as the party may have incurred under the provisions of this chapter. In case the defendant requires time for the production of witnesses for the defence, the justice may adjourn the investigation to any period not exceeding six days, on being satisfied by affidavit that such time is required for that purpose, and in such case the defendant shall be committed to gaol unless he gives security to the satisfaction of the justice to appear at the time and place appointed for such adjourned inves- tigation. 83. The decision of such justice shall be subject to appeal, as in ordinary cases, but before such appeal shall be allowed the appellant shall give bonds to pay the costs of the appeal in case of a decision against him, and in case of the defendant appealing to pay such fine as the court of appeal may impose with costs, or to render him in custody of the sheriff. 84. Grold in quartz or otherwise, unlawfully mined on the property of any lessee of the crown, shall be con- sidered in law the personal property of the owner of the mine, and a search warrant may be issued for the same by any justice of the peace for the county, in the same man- ner as for stolen goods ; and upon the recovery of any gold under such warrant, the justice shall make such order for the restoration thereof to the proper owner, as he shall consider right. 85. l!fothing in this chapter contained shall prevent her majesty from having or using any other remedy now available to recover possession of any mine forfeited from causes cognizable before the commissioner of mines, or from any other cause from which the same may be liable to forfeiture. OF MINES OTHER THAN GOLD MINES. Sislfon°e"to"' 86. The chief commissioner of mines may upon appli- Krant licenses, catiou, grant liccnscs, to be in force for one year from the date of application therefor, to enter upon any lands in TITLB VI.] MINES AND MINERALS. 109 this province not already under license or lease for mining Chap. 25. purposes, and to dig and explore for such minerals other than gold as the crown holds for the benefit of the pro- vince — a bond being first given to the chief commissioner Bond to ),„ of mines with sufficient sureties to be approved by the ^i^'™ ';• '■^■-■™- governor m council, that in the event oi entry being made to private uacw upon private lands recompense shall be made for damages in the manner hereinafter provided. 87. No such application shall be valid unless accom- -Application. panied by a payment of twenty dollars ; and the license of pioifa"|o,°'^'''*" exploration may cover any single tract of ground not exceeding five square miles in extent, but not less than two miles in width. 88. Upon such application and payment being made y^°"^„§P'iT the chief commissioner of mines shall cause the lands meat, lancis to applied for to be surveyed and laid ofl', and a full descrip- *" """°" ^ ' '' tion thereof shall be embodied in the license of explora- tion, but no such license shall authorize entry upon any lands which in accordance vdth the forty-sixth section of this chapter are forbidden to be included in any gold mining lease or prospecting license, except as in that section excepted. 89. The cost of such survey shall be defrayed by the cost of survey chief commissioner of mines, but the search for minerals cwe^f commis- under such licenses shall be made free of all expense to serrerfo"""^"' the government, and the holder of the license shall minerals to be within the time that the same shall be in force, and with to^loTC^nment! all convenient speed, make a report of the result of his Report to be explorations to the chief commissioner of mines. 90. The said license of exploration may be renewed piora'tion'^how for a further period of twelve months on application renewed.' therefor to the chief commissioner of mines, setting forth the special circumstances of the case not less than thirty days before the expiration thereof, and on payment of the further sum of twenty dollars, subject however to the approval of the governor in council upon consideration of the special circumstances submitted. 91. If the proprietor of private lands entered under Damages to such license shall seek damages, the proceedings for ascer- ''"™'^ '''"''"' taining the amount of such damages and making payment of the same, shall be the same as provided for by this chapter in the case of prospecting licenses for gold. 92. The holder of an exploration license may at any Holder of ox- time before the expiration thereof, select from the land ^in^e'may' covered by such license, an area of one square mile, for *®'^'=' ^'^^'•' *<=■ the purpose of working the mines and minerals thereon ; and may make an application in writing to the chi^f com- missioner bf mines for a license to work the same, which uc^se to^'woA application shall be accompanied by a payment of fifty payment. dollars. 93. Upon such application and payment being made, Td to be su'^ey- the chief commissioner of mines shall cause the portion «d,^dimension» 110 MINES AND MINERALS. [PART I. Chap. 25. so selected to be surveyed and laid off, and shall defray the expense of such survey, which said portion shall be in one block, the length of which shall not exceed two and a half miles ; and the person making such survey shall make a report and plan thereof, and transmit the same to the chief commissioner of mines. latwe "toarbura- • ^^- "^^^ *^® provlslous herein contained relative to set- tion, &c. tlement by agreement or arbitration with the owner of the soil, where the same is private land, for damages done to his land, and to payment therefor as set forth in sections eighteen to twenty-eight inclusive, and to the occupation of such lands as declared in section thirty-one, and to the exemption of certain descriptions thereof from liability to be leased as specified in section forty-six, and to the vesting of interests forfeited under this chapter as specified in sec- tion thirty-five, shall be applicable and in force in the case of mines other than gold mines, equally as in gold mines. "wSlnTnutied ^^' Upou Complying with the requirements of this to license. chapter by paying damages where the ground applied for is private land, the applicant shall be entitled to a license to occupy and work the one square mile applied for. MoenseTowoik, 96. Evcry liccnsc to occupy and work shall be for a '*'=• term of two years from the date of application, and within such term the- holder of the license shall commence effec- tive mining operations and shall continue the same in good faith until the termination of such term. ^SnatioTotli- 97. The holder of a license to occupy and work, or cense to be en- thosc representing him, having complied with the terms &Q^ ease. ^^ ^-^^ ^^^^ preceding section, shall on the termination of his license be entitled to a lease of the premises described therein, which lease shall contain all the ordinary provi- sions of mining leases, with such conditions as the governor in council may think necessary to ensure the -effective and safe working of the mine or mines on said premises, maybfobtri^* 98. Any party may apply for a license to occupy and ex^OTa'tion'^'°' ^ork any vacant mine without having previously obtained license. or applied for an exploration license, and in such case his application shall embody a description of the area applied for, and upon complying with all the antecedent conditions hereinbefore set forth, except those which relate solely to exploration licenses, he shall be entitled to such license to occupy and work. coimcil mly 99. The govcmor in council may by special order autho- fngofiilsfslie! 1'^^® *^® granting a lease or license to occupy and work a of larger area, larger area than one square mile, if on investigation of the special circumstances of the case they may think the public interests would be better subserved thereby, and in such case may impose such further conditions, not at variance with the spirit of this chapter, as may be deemed just. Leases "dura"' ^^^' "^^^ l^ascs of coal miucs shall terminate on or before lioTofi&c"™" the 25th day of August, A. d. 1886 ; leases of mines other TITLE VI.] MINES AND MINERALS. Ill than coal mines shall be for twenty-one years ; any lease Chap. 25. may at any time be surrendered by the lessee in like other mines. manner and upon such terms as hereinbefore prescribed for the surrender of a gold mining lease. 101. In the granting of licenses or leases after the ^neTof'Traaft'o passing of this chapter, there shall be reserved a space of be resoived. twenty yards in width, between the lines of the respective grantees ; but on the application of both parties interested, the governor in council may by special order direct a license or lease of such reservation to be granted on such terms and in such manner as may be just and reasonable. 102. All licenses and leases of mines and minerals other g"^^"''' '^^' than gold mines, shall be subject to the following royalties to the crown, to the use of the province on the produce thereof, after it has been brought into marketable condi- tion, payable yearly from the period of their respective dates, that is to say — of five per cent, on all such ores and minerals, except gold, iron and coal — of eight cents on every ton of iron, and of ten cents on every ton of 2,240 lbs. of coal, which said royalties shall be paid to such person or persons, at such times and in such places as the licenses or leases shall respectively stipulate, or as the governor in council may from time to time direct. 103. Every licensee or lessee of mines or minerals other Lessees of than gold mines shall, on the first day of January in each yeTriy retara.* and every year, make a return showing the number of days labor performed on the premises under license or lease, the cost and description of the shafts, adits, levels, drains, and other vrorks and machinery constructed, exca- vated, or erected thereon — the description and quantity of the material extracted from the mine or mines thereon and subject to royalty^and the amount of royalty which has accrued upon such material extracted during . the last previous year. Such return shall be sworn to by two or more credible persons, principally employed in or about the vrorking and management of such mines, before the chief commissioner or provincial deputy commissioner of mines, or a' justice of the peace, and shall be immediately transmitted to the chief commissioner of mines. 104. Where it shall be represented to, or shall come to Mma abandon- the knowledge' of, the chief commissioner of mines, that with!"' any mines or minerals claimed under a lease from the crown or under a lease granted pursuant to this chapter, have been abandoned for the space of one year, have not been efiectively or continuously worked, or have been worked only colorably, or to prevent a forfeiture under the terms of such lease, or that the lessee of such mines has failed to comply with any of the terms, covenants or stipu- lations in his lease contained, or by this chapter required, or is acting in violation thereof, the chief commissioner of ^rved on*" mines shall cause a notice to be personally served upon the i®^^^*- 112 MINES AND MINERALS. [PART I. Chap. 25. lessee or some or one of them, where more than one are included in the same lease, or his or their agent or person principally employed on the premises, or shall cause such notice to be posted up upon the premises leased, where no person can he found to make service thereof, informing him of such charge, and appointing a time, to be not less than fourteen days after the service or posting up of such Chief commiu ^o^ce, and also a place for the investigation thereof. At sioner to inyes- the time and placc appointed the chief commissioner of Sde™'' mines shall proceed to investigate the said case and decide thereon, and shall thereupon give notice of his decision to the lessee or his agent by causing such notice to be served or posted up as in this section above directed. at'ehambir"/^^ 105. From the judgment of the chief commissioner of mines the party interested may appeal to a judge at chambers, in which case the proceedings until final judg- ment shall be the same in every particular as are in this chapter provided for in the case of an appeal against the judgment of the chief commissioner relative to an alleged forfeiture of a gold mining lease. wrtrarla7d"eit 106. There shall be kept in the office of the chief com- klpfto'cwlf missioner of mines a map of the province, on which shall comimssion- 1)6 delineated as accurately as may be all the areas under license or lease as mines other than gold mines, and also a book or books of registry, in which shall be registered all Books of regis- the licenscs aud leases of such mines ; and such map and "^' book or books shall be open at all times to the inspection of the public. MISCELLANEOUS. B'^lfl^S^i^i^io 107. The chief commissioner of mines may lease crown sioner or mines ttt* .-,.-,-,, « .-11-11. may lease lauds beinsf Within the limits of any proclaimed gold dis- crown lands ,-, ° .. , j.-.i.i--i,i- • J within limits of tnct, Or Comprising any tract withm which the mines and pSrposei"other minerals other than gold are under license or lease, for than mining, purposcs Other than mining, reserving always the rights of present or future lessees ot mining areas therein, and sub- ject to such other reservations, and for such terms and upon such conditions as the governor in council may direct ; and may also sell any timber not previously dis- posed of growing or being upon any part of the crown domain, included within any such gold district or other tract under license or lease for mines or minerals other than gold, upon such terms as the governor in council shall authorize and direct. vofdlgafnst''^ 108. No lease granted under the provisions of this quent"/Mquit- chapter shall be void against any subsequent purchaser, ing title. mortgagee for valuable consideration, or judgment credi' tor, by reason of sUch lease not having been previously registered in accordance with the provisions of chapter one hundred and seventeen of the revised statutes, " of the registry of deeds and incumbrances affecting lands.'' lilLE VI.] CEOWN LANDS. 11 :! 109. The governor in council may at any time by Chap. 26. proclamation as in this chapter provided declare a gold Governor in district which shall contain an area or areas under license ckre's^S'**^' or lease for the purpose of searching for or working mines districts. and minerals other than gold ; and in such case the areas under such license or lease shall, notwithstanding such license or lease, become subject to all the provisions of this chapter which relate specially to gold districts and gold mines, under such regulations as the governor in council shall make. 110. The governor in council is authorized to make eo°nncii°ma" rules and regulations relative to gold districts and gold mnke rules, &c mines, and mines other than gold mines, and licensing and leasing the same, and to the pumping, draining, ventilation, working, management, care, possession and disposal of the same, and to all other matters connected with the same ; and to make such rules and regulations general or applicable only to particular districts or locali- ties as mav be deemed best; and all such rules and regu- When pubiish- ij. T TTiT-i 1 ini edm royal ga- lations when published m the royal gazette shall have zette to be law the force of law until repealed by the legislature ; provided by'thriegS- such rules and regulations shall not be repugnant to the p^^^^j^,, laws of the province or the provisions of this chapter ; and such rules and regulations may in like manner be altered, modified or cancelled as circumstances shall require. 111. The forms to be used under this chapter shall be Forms, substantially the same as those heretofore in use, subject however to such amendments and alterations as the govern nor in council may fi-om time to time make or direct. CHAPTER 26. OF THE CROWN LANDl 1. The surveyor general and commissioner of crown mi'isionei''*"' lands shall continue to be styled the commissioner of crown lands. 2. The arovernor in council upon the recommendation Appointment of n.i ".- n 1-^1 ., deputies. of the commissioner of crown lands may appoint one or more deputy surveyors in each county for the performance of such duties as may be required under the orders issued Duties. from the department. The said deputy shall upon his Bond. appointment execute a bond to the commissioner with two sureties for the faithful discharge of the duties of his office, and thereupon receive a commission in the custom- commission. ary form to be approved by the governor in council. 15 114 CROWN LANDS. [part I. Deputy to re ceive county plan. Chap. 'J(J. 3. Each deputy appointed under this chapter shall be supplied with a copy of the general plan of the county to which he is named/which he shall preserve with all other documents and plans connected with the lands of the county in some convenient place or office within the county where access can be had for information by the How preserved, inhabitants — Said plans, papers and documents to be held as the property of the province and to be transferred to his successor in office whenever appointed. _ 4. Such deputy shall give all necessary information to persons, respecting the lands within his county whenever applied to for that purpose, and furnish any copies of plans that may be required, for which he shall be entitled to the following fees : Each search twenty cents. Copy of plans with necessary connection, larger plans as may be required upon, fifty cents. 5. Instructions shall be furnished each deputy by the commissioner of crown lands for his guidance in the dis- charge of his duties. 6. Every deputy surveyor at the expiration of each quarter of the year shall render his account for services, and transmit with the same a list or return of surveys to the commissioner, accompanied by an affidavit in the fol- lowing form : — Deputy to give information. Pees. Instructions. Deputies to ren- der quarterly accounts. Affidavit. deputy surveyor for the county of- Governor to fix price of un- granted lauds. Purchase, appli- cation, and pay- ment. When purchas- er may enter. Commissioner may lay off wild land.«, roads, Ac. — , do swear that the several lots of land described in the above list have been actually surveyed by me, in accordance with the plans thereof, that all the corner bounds have been set up, and that the lines have been well marked. So help me God. > Sworn to before me at , this "| dav of . y J. P. I 7. The governor in council may from time to time settle the price to be paid for ungranted lands and the manner of making application therefor. 8. Any person or persons upon due application to the commissioner of crown lands may become the purchaser of such crown lands as may be for sale, upon making- immediate payment therefor to the receiver general ; and upon the passage of the grant thereof shall be entitled to enter into possession and not before unless under authority in writing from the commissioner of crown lands upon his report being approved. 9. Wherever there are tracts of land suitable for settle- ment or likely to command sale it shall be lawful for the commissioner of crown lands when so instructed by the governor in council to lay them off in one hundred acre lots, with convenient roads running through them, to be TITLE VI.] CROWN LANDS. ■ 115 allotted for applicants for immediate settlement or pur- Chap. 26. chase. 10. Whenever such lots are required by any persons for'letSear' for immediate actual settlement, surveys shall be made and sui;veys,*o. the applicants put in possession and allowed a credit of time allowed three years for the purchase money, which or such portion p" .^^;^™g®"'' thereof as under the circumstances the governor in council money may bo shall think fit to direct shall be expended under such openfngroads. instructions as the commissioner of crown lauds with the approval of the governor shall appoint in opening such roads as may be required for the formation or improve- ment of the settlement. 11. All the provisions contained in the chapter of Ji'™|*fj;'\'J,' ■^^:^. immigrants which relate to lands allotted to immigrants cedingecetion. for settlement shall apply to lands allotted under the section last preceding in the same manner as if herein enacted and made applicable to settlers. 12. The governor in council may direct the conimis- «OTemor may sioner of crown lands to cause roads to be laid out through sioner to lay any tracts of crown lands suitable for settlement, and to °"*™*'^'*- be opened in such places and to such extent as the gover- nor in council may deem expedient, and may direct the ^,i^P?^^|fi'''™ expense of such roads to be paid out of the revenues of the crown land office. 13. If at the time of any application for land there when giants was any dwelling house on the lands in which any person e^yoM.'^''''''^'" other than the applicant then and for a year previously had continually resided, or in case five acres at least of the land had been cleared or cultivated during such per- son's actual possession, and had been tor at least one year in his constant use, then unless such facts shall have been communicated to the commissioner before the passing of the grant, the governor in council at any time within two years from the passing thereof may, if it shall appear proper so to do upon the report of the commissioner of crown, land setting forth the facts, declare the grant to be vacated ; and the same shall thereupon become void, and the party in possession shall thereupon cease to have any interest in said land which may be granted to any appli- cant as if it had never been previously granted. 14. It shall be in the discretion of the governor in J;^^™^^','^^^^ council to decide upon all questions of the temporary eide questions occupation of crown lands of 'a shorter period than in the ofoo™panoy last clauses, and their decision shall be binding on all parties who claim such possession, upon their being noti- fied previous to such decision in time to enable them to assert their claim. 15. The governor in council may from time to time Governor in lease any lands at such price and for such tenure, time or feTse"^ "'"^ use, either as regards the land or timber, as may be deemed expedient.. 116 TRESPASSES TO CROWN PROPERTY. [PART I. Cha p. 27. 16. No grants shall pass exceeding five hundred acres Extent rf unless With the special sanction of the governor in council. grants. -^rj jt^Yl lands reserved for the indians are hereby vested Indian reseivcs ... . . „ t j jy ±i r> vested in com- m the Commissioner ot crown lands tor the purpose of nussionois. coiivcying thc same as directed under the act concerning Indian reserves, chainmcn 18. All survcyors appointed by the commissioner of crown lands as his deputies shall administer an oath to the chainmen before they proceed upon any survey, that they will well and truly perform the service according to the best o£ their skill and judgment under the directions they shall receive from such deputy surveyors. Surveyor raay 19. Any deputy sui'veyor whcn engaged in the duties linef '""""^^'P of his professiou may pass over, measure along, trace, and ascertain the bearing of any township line or the line of any grant or other governing or side line, and for such purposes with his assistants pass over the lands of any person whomsoever, doing no actual damage to such lands ; and no action shall lie against such surveyor or his assist- ants for any act done under this section. CHAPTER 27. OP TRESPASSES TO CROWN PROPERTY. without licenf^e. Penalty. Ko per«in In 1. ]^o pcrsoii shall cut dowu or remove any trees or <'Ut wood, open 1 I? 1 • J.- 1 -I *^ mines, ic. wood 01 any description on any crown lands, or open any mine or dig or raise any minerals belonging to the crown, or remove, use, injure, or destroy any trees, wood, lumber, or minerals, being crown property, without license from the governor or other legal authority, under the penalty of not less than eight dollars or more than eighty dollars for each offence, in addition to the value of any such trees, lumber, wood, or minerals, which shall have been cut down, raised or removed, and in addition to any damages com- mitted on the land of the crown — the amount of which value and damages shall be found by the jury. The prose- how coSdScted ^'^tion may be in the name of the queen, and on conviction &c. "' ""^ * ' the court shall determine the amount of penalty, and judgment shall pass for such penalty, and also for the value and damages aforesaid,, and costs of suit. surveyors'!'!!, ^- "^^^ sheriff and the chief surveyor of each county, empowered to and such othcr pcrsoii as the governor in council may see property!""" fit to appoint, are severally empowered and required vigi- lantly to protect the lands, timber and minerals, belonging to the crown in their respective counties, and to prevent encroachments and trespasses on the lands and mines^of TITLE VI.] TRESPASSES TO CKOWN PROPERTY. 117 the crown, and tlie unlawful removal of trees, timber, Chap. 27. lumber and minerals of the crown. 3. It shall be their duty, respectively, to seize trees and Thch- duties, wood illegally cut, and the lumber made thereout and '^°"''*"' minerals illegally raised on the lands of the crown in their respective counties wherever the same may be found, and also to follow and seize the same in any other county to which they may have been removed ; and also to seize in their respective counties, trees, timber, logs and lumber of the crown illegally cut or made, and mineralg of the crown illegally raised in any other county, and removed into their said counties ; and they shall have power to tise all suitable and necessary means for guarding the same until condem- nation, and to authorise persons to act in assistance of and under them. 4. Immediately after seizure the seizing officer shall atolfelzMe. report the facts to the commissioner of crown lands, and shall obey his instructions as to further proceedings. 5. If any one or more of the parties concerned in cut- PioceedinKs , . . .•' . . f . . . .1 when parties tmg or raising or m removing or having m possession the coneei-ned in property seized shall be known, a justice of the peace i5no^/n.^ ''™ either of the county where the property seized was cut or raised or where it was seized shall on the applications of any of the said officers or persons acting by authority of the commissioner of crown lands, issue a notice in the form in schedule A against any one or more of the parties so known, and service on any one or more of them per- sonally, or by leaving a copy of the notice at his or their last place of abode, shall be sufficient to bring on a trial and for the condemnation of the property. If the parties ^hM** pli'tie'^ be not known a copy of the notice shall be posted on the are not known. court house door or in some other public place at least ten days before trial. Should no claim be made at the time and place mentioned in the notice, the property shall be thereupon forfeited, and in case of claim two justices shall then and there or at some other adjourned time and place hear evidence and adjudicate, and either condemn the property or order it to be released with costs. 6. The sentence of condemnation may be in the form ooJJ^emn'ftion in schedule B, and a copy thereof certified by one of the -form of-pio- justices shall be delivered to the officer or person who Snde'"^^ seized the property, who shall report the facts to, the com- missioner of crown lands, and shall sell or otherwise dispose of the property as he may direct. 7. In case of sale the gross proceeds shall be forthwith Disposal of pro- remitted to the commissioner of crown lands, who shall slfe.^ ™ '^^''^ "' pay the same to the receiver general, who, after the charges . shall have been approved by the financial secretary, shall pay the necessary expenses for guarding and preserving the property, the usual costs to the justices and witnesses and other necessary expenses and shall then pay one half 118 TRESPASSES TO CROWN PROPERTY. [PART I. Chap. 27. the nett proceeds to the officer or persons aforesaid who seized and prosecuted to condemnation the said property. does nJt'reTiizo When froHi any cause the property seized shall not realize enough to an adequate remuneration, the commissioner of crown cover expenses ■'- *">ij.* ' lands may with the approval of the governor in council, make such adequate compensation to the seizing officers and persons employed by them, and the witnesses, as under the circumstances may be proper. ci'edfn'^'uncier 8. An appeal may be had from the judgment of the ''"• justices to lie supreme court. If the claimant be the appellant he shall make the affidavit and give the security as required in cases of appeal. The appeal shall not stay the sale, and if determined in favor of the claimant he shall be entitled to the property if not sold, or to the gross proceeds if sold, and his costs to be paid by the commis- sioner of crown lands and charged in his account. Pc'iaity for Ob- 9. Any pcrsou who shall assault or obstruct any officer cei""removin"g in the exccution of his duty under this chapter, or any property, *c. person in his aid, or who shall wilfully remove, cut, injure, convert, or set loose anything seized as aforesaid, shall pay a fine to the queen not exceeding four hundred dollars n^r less than eight dollars, at the discretion of the court where prosecuted, and if not paid after conviction such person shall be imprisoned in the county jail for a period not exceeding one year, nor less than ten days, at the like discretion. Privileges of 10- Any pcrsou impleaded for seizure or prosecution pfeadedfor-ei- uudcr this chaptcr may plead this chapter, and give^the act1is"re "rdi'" spcclal mattcrs in evidence. And if the judge shall certify pleadings, costs probablc causc of seizure or prosecution, the claimant shall damages, 4c. ^^^ rccovcr any costs, nor shall the person who made the seizure be liable to any indictment or suit on account thereof; and if any suit or prosecution be brought against any person on account of such seizure and judgment shall be given against him, and the judge or court shall certify- that there was probable cause for the seizure, then the plaintiff, besides the thing seized or its value if sold as aforesaid, shall not recover more than four cents damages nor any costs of suit, nor shall the defendant be fined more than twenty cents. But a party whose property may have been seized may, notwithstanding such certificate of probable, cause, take possession of such property if the same shall not have been sold or disposed of^ — or if sold or disposed of, may recover the actual value thereof from the seizing of&cers, if the same shall not be paid within one month after demand on him in writing, setting forth the particulars and amount of such claim. Actions, where H- -^-H actious and suits brought for a violation of the brought. provisions of this chapter shall be brought in the county where the offence was committed. TITLE VI.] NAVAL PROPERTY. 119 SCHEBULE. Chap. 28. A. Whereas a quantity of [describe the articles'] have been seized as crowil property, illegally obtained, .These are to give notice that two justices of the peace will attend on the day of at — o'clock in the noon at to hear cause why the same should not be declared to be the property of the crown. Given under my hand and seal at this 'day of A. D. 18—. A. B., J. P. B. Be it remembered that [describe the property] having been seized as crown property illegally obtained, and pro- secuted under the provisions of the chapter for protection of crown property, the same are hereby adjudged and declared to be the property of the crown, pursuant to the said chapter. Given under our hands and seals at this day of A. D., 18—. A. B. (seal.) C. D. (seal.) CHAPTER 28. OF NAVAL PROPERTY. 1. All messuages, lands, tenements, and hereditaments. Property held erections, buildings, and property whatever which have service to™e been conveyed to or are vested in any person or persons, hi|hadmiJai'^ or are held or in any manner occupied by or in the name '"^ oommission- „ •> ■ i J *f. 1 "^ . , . ers for time of any person or persons m trust for her majesty or her being. royal predecessors and her or their heirs or successors for the use of the naval service of the said united kingdom, or of any of the departments of or belonging to the said naval service by whatever mode of conveyance or by what- ever title or for whatever estate or interest therein, the same shall have been conveyed or be vested, held or occu- pied, together with the rights, members, easements, and appurtenances to the same respectively belonging, shall be and become and remain and continue vested in the lord high admiral of the said united kingdom, or the commis- sioners for executing^ the office of. lord high admiral afore- said for the time being, according to the respective nature and quality of the said messuages, lands, tenements and hereditaments, and the several estates and interests of and 120 NAVAL PKOPERTY. [part I. Also lands sub' sequently pur- chased. Chap. 28. in the same respectively, in trust for her majesty, her heirs and successors, for the public service. 2. From and after the purchase and conveyance, grant or demise thereof, all other messuages, lands, tenements, and hereditaments which shall at any time Or times here- after he purchased, taken, held, or occupied by the lord high admiral or the commissioners for executing the office of lord high admiral aforesaid for the time being, or by any person or persons by his or their order for the naval service of the said united kingdom, or of any of the depart- ments of or belonging to the said naval sendee, and all erections and buildings which shall then or may be there- after erected or built thereon, with the rights, members, easements and appurtenances to the same respectively belonging, shall in like manner be and become and remain and continue vested in the lord high admiral of the said united kingdom, or the commissioners for executing the office of lord high admiral aforesaid for the time being and his or their successors in the said office, according to the respective nature and quality of the said messuages, lands, tenements and hereditaments, and the several estates and interests of and in the same respectively, in trust as aforesaid. Upon the death, resignation, or removal of the pre- be™ested1n*° ^^^^ commissioncrs for executing the office of lord high admiral of the said united kingdom, or of any of them, or of any future such commissioners, or of any lord high admiral of the said united kingdom, all such messuages, lands, tenements, and hereditaments respectively shall become vested in and be held by the succeeding commis- sioners for executing the office of lord high admiral afore- said, or the lord high admiral aforesaid, as the case may be, and so in perpetual succession, according to the respec- tive nature and quality of the said messuages, lands, tenements, and hereditaments, and the several estates and interests of and in the same respectively, in trust as aforesaid. 4. In all deeds, conveyances, leases, contracts, and other instruments touching any estate, property, matter, or thing relating to the naval service of the said united kingdom, or to any department under the control of the commissioners for executing the office of lord high admiral aforesaid, or whereto they or any of them shall be parties, it shall be sufficient to describe them generally by the style and title of " the commissioners for executing the office of lord high admiral of the united kingdom of Great Britain and Ireland," without expressing their names, and all such deeds, conveyances, leases, contracts, and other instru- ments, wherein the said commissioners shall be so descri^ bed, and the execution or signature thereof by any two of them, shall be as valid and effectual to all intents and Incase of death successors. Titles of com- missioners to be used in deeds, &c. TITLE VI.] NAVAL PKOPBRTY. 121 purposes as if they or any of them had been expressly Chap. 28. named therein and had executed or signed the same. 5. It shall and may be lawful for the commissioners Powers of oom- for executing the office of lord high admiral aforesaid for 'te!e\°^eisi%'. the time being, or any two or more of them, or the lord high admiral aforesaid, to sell, exchange, or in any manner dispose of or let, or demise any of the messuages, lands, tenements, and hereditaments respectively which shall be vested in them under or by virtue of this chapter, with their respective appurtenances, either by public auction or private contract, an(^ in due form of law to convey, sur- render, assign, or make over or to grant or demise the same respectively, as the case may require, to any person or persons who shall be willing to purchase or take the same respectively, and also to do any other act, matter or thing in relation to any such messuages, lands, tenements, and hereditaments which they or he shall deem beneficial for the public service in relation thereto or for the better management thereof, which might be done by any person or persons having a like interest in any such messuages, lands, tenements, or hereditaments. 6. It shall be lawful for the said commissioners for commissioners executing the office of lord high admiral aforesaid for the oute™n5J^fend time being, or the lord high admiral aforesaid for the time '"=*'°"-''- being, and they are hereby authorized and empowered, to bring, prosecute, and . maintain any action, suit, or other proceeding at law or in equity, for recovering possession of any messuages, lands, tenements, or hereditaments, by this chapter vested in them or him as aforesaid, and to distrain or sue for any arrears of rent which shall have or shall become due for or in respect thereof, under any demise from the said commissioners or lord high admiral, or any person or persons on their or his behalf, or on behalf of her • majesty, and also to bring, prosecute, or maintain or to defend any other action or suit in respect of or in relation to the said messuages, lands, tenements or hereditaments, or any trespass or encroachment committed thereon, or damage or injury done thereto; and that in every such action or suit the said commissioners shall be called " the commissioners for executing the office of lord high admiral of Great Britain and Ireland," without naming them ; and Action not to no such action or suit shall abate, by the death, resignation, abate on death. or removal of such commissioners, or any of them, or of such lord high admiral, any law, custom, or usage to the contrary notwithstanding : and the said commissioners or lord high admiral shall be entitled to recover costs for and ^^be ifawe to on behalf of her majesty where judgment shall be given for pay costs. the crown, and shall be liable to pay costs where judgment shall be given against the crown, in any such action, suit, or other proceeding in like manner, and subject to the 16 122 MILITIA. [PAKT I. Chap. 29. same rules and provisions as thougli sucli action, suit, or — " — other proceeding had been had between subject and subject. TITLE VII. OF THE NATIONAL DEFENCE. CHAPTER 29. OF THE MILITIA, Commander in chief. Persons to be enrolled. How divided. First class. Second class. Old commis- sioned officers maybe unat- tached. Unattached officers liable for duty. Not to apply to second class in peace. Assembly for enrolment. OP CLASSIFICATION AND ENROLMENT. 1. The governor of this province is constituted the commander-in-chief of all the local forces thereof; and every man of the age of sixteen, and not over sixty years of years, except clergymen, members of the executive council, judges of the supreme court, and judge of the court of vice-admiralty, shall be enrolled in the militia. 2. The militia shall be divided into first and second class ; the first class to be men from sixteen to forty-five years of age and the second class to be men from forty- five years of age to sixty ; the first class shall be the first for training or service, and the second class shall not be called out in the time of peace, but shall be a reserve'in time of war. 3. Commissioned officers over sixty years of age may be relieved from further service in time of peace and be placed on the unattached list, to come in with the second class men should their services be required in war ; and officers after twenty-one years service shall be entitled to promotion to the next superior grade on the unattached list, to come in with the reserve on the appointment of the commander-in-chief. 4. Unattached officers under sixty years of age shall be liable .to be called upon for duty in the counties where they reside under the penalty of losing their commissions on refusal to perform service. No officer under forty-five years of age shall go on the unattached list. 6. Unless otherwise specially expressed, no part of this chapter shall apply to the second class of militia in time of peace. 6. The commander-in-chief may make orders for the assembling of each company once in each year for enrol- ment, and any man neglecting to attend for that pui^Ose after receiving due notice, without special cause shewn to the commander-in-chiefj shall forfeit two dollars. TITLB VII.] MILITIA. 123 7. If any man shall not enrol himself and shall in Chap. 29. consequence be absent from any muster, he shall be liable Knot enrolled to the fine for non-attendance at such muster, although he lhoi|h°n'J.r shall not have been warned to attend muster. warned. 8. If any difference shall arise between the captain in case of T ^ , -, , .jini- T"*", difference, man and any man ooncernmg ms age, at shall be mcumbent on toproTeago. the man to prove his age. 9. Any man who shall have moved out of the limits of i^^™s™f c^oST his company shall within ten days thereafter give in his panj^, name, age and place of residence to the captain of the district into which he shall have removed, or to the person appointed by the captain to command and enrol the squad division within which he shall • reside, for the purpose of being enrolled therein-, under a penalty of two dollars. 10. When any person has ceased to hold a commission op oommissidn; he shall be liable to perform militia service in the ranks toTe?v^' in the in the reserve or the first class, according to his age. '^™'"' 11. Any officer or non-commissioned officer who shall ait^'^for^not en- omit to perform enrolment duty when ordered to do so by loiimg. his commanding officer, according to instructions received from headquarters, shall be subject to a fine of two dollars. OP THE ORGANIZATION OF REGIMENTS AND SUBORDINATE SUB-DIVISIONS, AND REGULATIONS FOR DISTRIBUTING AND FACILITATING THE PERFORMANCE OF MILITIA DUTY IN TIME OF PEACE, AND OF TRAINING AND DISCIPLINE. 12. The militia in each county shall be formed into Kegiments, regiments, the regiments shall be divided into companies, squads. and the companies shall be divided into squads. •13. Regimental districts shall be determined by the Districts,^4c. lieutenant colonels in each county, company divisions by mined. the lieutenant colonel of and captains in each regiment, and squad divisions by captains of companies, all subject to the orders and approval of the commander-in-chief. 14. The commander-in-chief shall appoint commis- ^fP^'"^™™^ eioned officers, adjutants and commissioned regimental staff, and make regulations for their attendance at drill and their examination for appointment and promotion. Militia regiments failing to organize or train may be P^g^j^^g'^^fg"; called out for muster or training under officers or non- fo., proceed- commissioned officers of contiguous or other districts at '"^^' the discretion of the commander-in-chief, and the officers so employed shall be paid four dollars a day and non- commissioned officers two dollars, to be levied by assess- ment on the regimental district. 15. Adjutants shall be divided into first and second Adjutants. class ; the latter to be designated acting adjutants and the former adjutants. 16. Adjutants shall be entitled to receive forty dollars ^ow townf&c: per annum au(i ^^cting adjutants twenty dollars, to be 124 MILITIA. [PAEX I. Chap. 29. drawn from the provincial treasury on certificate from the ■ ~" commanding officers of regiments to which adjutants of either class are attached, that they have faithfully per- formed the respective duties required of them ; but no adjutant shall receive any pay or allowances until he is certified by the adjutant general of militia that all the returns of his regiment are in up to date ; and adjutants Forfeiture of behind hand in periodical returns shall forfeit their pay '"'''' for the year unless otherwise ordered by the commander- in-chief. Adjutants, 17. Under the orders of their commanding officers, adjutants shall attend to field duties, the enrolment and organization of their regiments, and such correspondence and returns as they may be commanded to conduct. Acting Adju- ig. Actiug adjutants shall attend to the acquirement of n s, u lei, . ^^^^ duties On opportunity being aflbrded to them, and shall conduct all the other duties required from adjutants until qualified as field adjutants, when they rank as first class on approval. appo°nt°rtS|'' 19. The lieutenant colonels may appoint acting adju- adjutant. tautS. How promoted, 20. No acting adjutant not being qualified shall stand remove , o. .^ ^-^^ ^^^ ^^ ^j^^ promotiou to the first class adjutancy of any officer who is qualified and willing to take the duty ; and adjutants of either class may, on the report of an inspecting field officer or the commanding officer, he removed or superceded by order of the commander-in- chief for incompetency or neglect of duty. First class tatfed'fo?d'irty adjutants detailed by headquarters for training at outposts, at out posts. |)eing beyond five miles from their place of residence, shall be entitled to one dollar fifty cents per diem ; but shall not claim this as additional allowance to that under section fourteen when training in any other regimental district not being their own. how°l °.S?te" ^1* Ijieutenant colonels may appoint officers with act- ' ing rank, who, pending the pleasure of the commander-in- chief, shall have the power and authority of their rank, and shall be subject to the same penalties as commissioDcd officers for every breach of duty. Non-opmmis- 22. Licutcnant colonels shall appoint sersreant-maiors, sioned officers, , , . i ji ^-^ • °, ■, o ' how appointed, quartermastcr-sergeants, and other regimental non-com- missioned BtaS not attached to companies. They shall also appoint the non-commissioned officers of companies on the recommendation of their respective captains, offi^erl.""^"' °^ ^^- Every company of not more than sixty men shall have a captain, two subalterns, a color sergeant, and a sergeant and a corporal to every twenty men ; larger companies may have an additional subaltern. ^oS'ed°offiilre; ^4. Any pcrsou refusing to serve as a non-commis- f«°j^ity for re-J sioucd officcr shall be fined in a sum not less than ten and as such. " ^"''^ not more than twenty dollars, halt to be paid to a substi- TITLE VII.] MILITIA. 125 tute and half to the regimental fund, but shall not be Chap. 29. subject to a fine for any subsequent like refusal within five years ; but this section shall not apply compulsorily to ^ffe'ctwrvofun- efiective volunteers. *«'"'''• 25. The commander-in-chief may organize detached cetaniied com- - . , . , , •' *,", , , . panies may be. companies m remote districts and may make regulations organized. for their enrolment, training and discipline until such time as it may be expedient to consolidate them into battalions, and may attach them to other battalions as detachments, or put them under the separate command of field-officers or captains, and as far as practicable they shall be subject to general regulations and the provisions of this chapter. 26. The commander-in-chief may organize militia artil- Artiuery. lery and make regulations for them. 27. Colored corps shall be under the special regulation colored corps, of the commander-in-chief, but in the terms of this act ; and the colored population shall be enrolled and be subject to draft and service in the proportion laid down in this chapter. 28. The commander-in-chief may appoint officers to commander in inspect and command all or any of the regiments of point Sffice?s'to militia throughout the province ; and such officers when '"^peo' miiitia. commissioned and published in general orders to the militia, shall be obeyed in all things lawful by all persons who shall be so placed under their respective commands. 29. The conimander-in-chief may call out the militia commander in for any number not to exceed twenty-eight days drill in out mmtfa'^for each year for squad, company or battalipn training as he ofdays.^fc^'^ shall order ; but no previous drill performed by officers or non-commissioned officers shall exempt them from such squad, company or battalion training, and no company or battalion training shall exceed eight days in any year. In How computed. the case of men having to make up drill for legitimate absence, squad drill shall count the same as battalion or company drill. 30. Officers and non-commissioned officers training officers' dnii; when their men are called out may count their days drill ^°'''' '=°™p'^*^''- on any subsequent officers or non-commissioned officers training, being ordered within the year. 31. No drill shall count unless ordered from head- oriu must be . ^ 1 1 J.- 1 ordered from quarters by general regulations or express orders or sane- head quarters tion, nor unless proper diaries are sent in and approved of ?°«'''"'"e=-'^"'' at headquarters. 32. The commander-in-chief may cause commissioned Exam^inationot officers to be examined at any time by boards or officers ° by him appointed, in order to test their military qualifica- tions for the service. 33. ISTo man shall be required to attend squad or com- Duration of pany drill for more than two hours in one day, nor to travel to attend squad drill more than four miles, nor to Travel. attend company drill more than twelve miles, nor battalion muster or drill more than twenty miles. 126 MILITIA. [part I. Chap. 29. 34. Every colonel who shall not give the necessaiy Penalties. orders fop the assembling of his regiment as required by Colonels fornot law and general orders, for enrolment, muster or training, o.^denng drill, ^-j^^-^l forfeit eighty dollars ; and every captain who shall dI?obidience. ^^^ ^^^J ^^^ ordcrs of Ms superior officer in this respect Squad commai- ^hall forfcit twciity dolkrs ; and every squad commander der for neglect, -^rlio shall not obcy the ordcrs of his superior officer for the assembling and training of his squad, two dollars for each neglect. Itlendfng '' ""' 35. Evcry person who shall not attend squad drill and squad drill. shall uot havc a reasonable excuse to be adjudged of by his captain shall be fined in a sum not exceeding one dollar. blhavi^S'oS'^' 3^- If ^^y ^^^ shall misbehave at any meeting, or duty. whilst engaged in militia duty, the commanding officer may impose a fine of not less than one or not more than three dollars, and on non-payment shall send him to jail under the following warrant, there to remain until he pays the costs and fine ; his imprisonment not to exceed three days : Warrant. " To the sheriff or the keeper of the jail for the county of . "You are hereby required to receive C. D., of my who was guilty of [state offence,'] on the day of , while engaged in militia duty under my com- mand, and him closely confine in your jail for the space of from the date hereof, [time of his being delivered into your custody,'] and at the expiration thereof, him, the said C. D., to release from your custody in said jail, on payment of your fees, and for which this shall be your sufficient warrant. Given under my hand this day of — , A. D. 186-." (Signed) A. B. [Here insert rank and command.] Fulngto'escOTt. ^'^ • ^ ^uy uou-commissioned officer, ordered to escort such man to jail, shall not do so, he shall be subject to a fine of eight dollars, and be liable to be reduced to the ranks ; and any private who shall neglect to perform such duty, two dollars ; and any sheriff or jailor who shall" fi^nf i?re-^" ^^^^^^ *o rcccive and detain any person for the time speci- ceive. ficd in the warrant, shall be subject to a fine of twenty dollars. ?fJo1rt by offen- ^^" "^^^^ persou of the escort shall receive five cents dor. per mile for convejdng the offender to j ail, going and return- ing, to be paid by the offender before he shall be discharged ; noni'aym'eti"" ^^A ^^ ^^ ^^^s not pay the same, he shall be detained in jail twenty-four hours extra for every dollar of the amount, in which case the quarter master shall pay the escort the fee out of the fines. TITLE VII.] MILITIA. 127 39. If any person shall knowingly interrupt militia Chap. 29. men when on duty, the commanding officer present may interrupting impose upon every such person a fine not to exceed two ^naity. **"*^' dollars for each offence, and may issue his warrant to apprehend such person, and for collection of such fine as provided for in section thirty-six. 40. Any person interrupting any muster or drill author- interrupting ized by the commander-in-chief, on conviction before a justice of the peace shall for every such offence be fined two dollars. 41. Any militia man being drunk when on parade or ?®?"'^*J^°\ duty may be confined by the verbal order of the senior *'°^ officer or non-commissioned officer present, until the dis- missal of the men ; and on conviction thereof before a justice, shall for every such offence be fined in a sum not exceeding two dollars. Any person who shall sell or intro- ^"uoroif^a- duce any intoxicating drink on any parade, practice or ra'de°gr°oimds. exercise ground, or adjacent thereto, shall be fined in a sum of not less than two nor more than four dollars, and the liquor may be spilled on the ground by any commis- desS-oyld. ^ sioned or non-commissioned officers. 42. Any man usina; mutinous or insulting language or using muti- , ."^-L- ■ ° ji- 1 Vi°-°i nous or im- gestures to his superior officer on parade or duty, or inter- properian- rupting any duty or drill by blasphemous or obscene ^"*^®' expressions, shall be liable to the penalties prescribed in section thirty-six, to be collected as therein provided, or by a prosecution therefor before a justice of the peace, under the provisions of chapter one of the revised statutes. 43. Any man who upon three days notice shall not Penalty for ,, J i_ ,j_ T J X- J- 1 absence from attend, any company or battalion parade, for muster, enrol- company driii, ment or drill, for the first offence shall pay two dollars ; for the second offence three dollars ; and for every subse- quent offence within the year four dollars ; and every man Eefusing duty, refusing to perform the duty required of him, or falling \rtthoutf^ve, out without the permission of the senior officer on parade, p®"*"^' *"■ shall pay not less than one nor more than four dollars ; and should he quit the parade without leave, he shall be liable to both penalties ; and any man fined for absence J^nt"^^(f^ ^'"' on account of recorded contumacy, shall be liable to make iiabie to make up duty or drill under the same penalties as if he had not "^ ""^' been absent and fined or punished ; provided that this proviso. section shall not extend to those who have paid fines in full, as an acknowledged commutation of duty. OF MUSTERS, BOARDS 0^ APPEAL, EXEMPTIONS, ETC. 44. The colonel shall form boards of officers to hear Boards of ap^ appeals from fines for not attending at muster or duty, to and 'howTorm^ consist of one field officer and two captains, or of two ^*' captains and three subalterns, or of one captain and four subalterns ; and shall, by regimental order, appoint a day pme of hoid- for the meeting, not to be longer than one hundred and "^^' twenty days after the imposition of such fine, and every Notice to cap- captain shall have six days notice thereof. '*"'■ 128 MILITIA. [PAKT- I. Chap. 29. 46. The captain shall cause every person fined for non- Notioe to per- attendance to be notified, either personally or by writing son fined. ^gft ^t his kst placc of abodc, that at a certain time, the same not to be less than three days after such notice, and at a place therein to be mentioned, a board of officers will hear appeals. mMsteredto' ^6. The board of officers before entering on duty shall members. take and subscribe the following oath, which shall be administered by the senior officer to the other members, and afterwards by any sworn member to the senior officer. Form of oath. j^ ^ ^q g^ear that I will well and truly investigate and determine the causes brought before this board with- out partiality, favor or affection, and a true judgment give according to evidence ; and I will not at any time what- soever disclose or discover the vote or opinion of any particular member of this board unless required to give evidence thereof as a witness by a court of justice or a court martial in due course of law. So help me God. boOTd^hw oon^ All witucsscs shall be examined on oath, and the pro- ducted, ceedings of the board and the evidence shall be taken down in writing, and transmitted to the commanding officer of the regiment after the conclusion of proceedings and signature by the president ; and the commanding officer shall carefully examine and revise the proceedings, annexing his signature and his approval or disapproval, and his remarks in case of the latter ; and the written proceedings of boards of appeal shall be evidence before other courts. Parties who have incurred a penalty which comes within the jurisdiction of the board of appeal, and who have had due notice of the sitting of such board and shall not attend thereat personally or by an agent, shall not be permitted in any subsequent prosecution for the recovery of any fine to allege as a defence or in mitigation of such fine anything which should properly have come finah^'°" *° •''' within the consideration of such board, and the decision of the board in all cases within its jurisdiction shall be final and conclusive. Noworaiiow- 47^ Boards of appeal shall not be entitled to any pay or allowances. m'it'mie^in^ce?- ^8. The boardmay remit any fine or any portion of a tain cases. fine ou proof of sickucss of the man or one of his family, requiring his attendance, or of unavoidable necessity or accident, really preventing his attendance at muster or duty, or for the want of due notice to attend. Schedule of 49. AH fiucs Confirmed or remitted by the board shall be certified in a schedule to be signed by the president. tosl'howCgr ^^- ^^^^J °^^^^ ^^^^^ receive at least three days notice *<=• ' ' of the musters at which he shall be required to attend, to be given to him by any commissioned or non-commis- sioned officer, or under the written orders of the captain by any private, or if he cannot be found to be left at his TITLE VII.] MILITIA. 129 abode, but in the latter case if the man shall not reeeiye the Chap. 29. notice he may prove his ignorance thereof to the board of ' appeal ; but a warning suppressed by any third party shall f^aratag^^'* be taken as if the warning was regularly given, and any man making a vexatious, trivial, or unfounded appeal, shall pay double penalties at the discretion of the board. 51. Militia men late for muster, drill, or parade, but Being late for reporting themselves personally within thirty minutes after fe"t'to°haff ™''" roll call, shall be subject to half fines, and to make up fi°«^'*'=- duty when required within the year as directed by the commanding officer of the regiment, or his orders. 52. The commanding officer at any muster may name orders given at any other day or days for reassembling at any kind of no'tfce!* muster, and his order thus given shall be a notice to every man who shall have been notified of the first day of meeting, or who shall not have been enrolled. 53. Temporary absentees, on account of transient Temporaiy absence, sickness, or any other cause, on return or re- make*urdriii. covery shall be liable to make up training or duty within the year, unless in the case of absentees they can produce certificates from commanding officers that they have per- formed the required annual duty in the district of some other regiment ; and pilots and sea-faring men may be called on under this section. 54. The crews of vessels about to proceed to sea, if crews of ves- warned for militia duty, shall not be liable to fine on ^®'^' account of sailing. 55. "When a captain shall accept of an excuse for non- Exousefornon- attendance at muster, he shall enter it in his company's * ^° "^°*'^' records, and if required by the colonel, make a written report thereof, and for neglecting to do either shall be liable to a fine not exceeding ten dollars. 56. The colonel shall once in every year, and oftener if Meetings of he shall think fit, require the officers to meet at such time °*'''=^^^- and place as he shall appoint, to confer with him for the better regulations of their companies, for establishing the limits of the company districts, for appropriating fines under regulations, and making such rules as may be deemed proper for military dress and discipline. But all these proceedings shall be subject to the approval of the commander-in-chief, unless they are in accordance with standing regulations not requiring reference to head- quarters. 57. K any officer shall neglect to attend any court, offieer'a pen- board, or meeting ordered by the colonel without reason- teSdingmeet able excuse, he shall be liable to a fine, if a field officer, ^°ss- of twenty dollars ; if a captain, twelve dollars ; and if a subaltern, eight dollars; and commanding officers may appoint the next available officer. 58. When any man shall complain to his captain or the Exemptions on senior officer of his company that by reason of sickness or nessr&o." 17 130 MILITIA. [part I. Chap. 29. infirmity he is unable to perform the duties required, the , captain or senior oflacer shall refer the case to the surgeon of the regiment, or in his absence to any other physician or surgeon, who shall thereupon examine him as to such Fee to surgeon, sickucss Or infirmity, and shall upon receiving from him Certificate. -j^j^g fgg ^f £f(;y ceuts, givc Mm a Certificate of the result of such examination, and if the board, or officers to he appointed by the colonel for that purpose, shall report that the man is unable tO perform his duty, the colonel shall exempt him therefrom until his disability shall cease. Permanent dis- 59. Persous permanently disabled by accident, deformi- '^ " ^' ty, or confirmed chronic disorder, shall be entitled to stand- ing certificates of exemption. cit^s'^when' ^^- ^^^^ Certificates shall only be valid when signed by valid! regularly qualified medical practitioners ; and any person not being so qualified by law to practice, who shall sign a certificate for militia exemption, or any practitioner who felsl'cM-t'iflcate. shall kuowiugly give a false certificate, shall be liable to a fine of twenty dollars, to be sued for by the commanding ofiicer of the regiment. Penalty for re-: 61. Any mcdical man refuiina; a certificate under the cate. preceding sections, after having been paid or tendered the fee of fifty cents, shall be liable to a fine of eight dollars. Exemptions 62. The foUowiug pcrsous shall be exempt from at- rommusei. ^gjj(jj^jjg g^jl musters uulcss they hold commissions, viz. : The members of the executive and legislative councils ; the members of the house of assembly ; the clerks of the executive and legislative councils and house of assembly ; the judges of the supreme court and court of vice-admi- ralty; clergymen, sheriflis, coroners, the commissioner of crown lands and the subordinates in his office ; inspector of mines ; the gold commissioner and persons employed in his department ; the principal and professors of the normal school ; officers of the customs ; officers of the colonial revenue; all clerks, storekeepers, mechanics, laborers, and others employed in the civil and military departments of the army and navy ; ferrymen and toll bridge officers ; the chief railway commissioner and the persons employed in his department ; telegraph operators ; the postmaster general and clerks in his office, postmasters and all mail carriers ; engine-men, axemen and all fire- wardens and firemen ; quakers certified by their society, and all professors of colleges, teachers of academies, and licensed schoolmasters. mfn1nun?form ^^- ^iliti^ officers or voluntccrs in uniform and on f^ndonduty, duty and the militia stafi" on duty shall pass free by rail ; yrai . ^-^sq, militia men going to regimental muster or returning, therefrom, whether in uniform or not, when attending annual regimental or company training, to be certified by the captain of the company. TITLE VII.] MILITIA. 131 64. Militia men under a pass from tlie captain of the Chap. 29. company, going to and returning from duty, shall be en- Men on duty, titled to a free passage across any ferry or toll bridge, and ftomSfa'geOT shall be free from arrest under civil process ; and any ^u. officer arresting them shall be liable to an action for anest, damages ; and any toll bridge officer or ferryman refusing Fine for refusal such free passage shall be liable to a fine not exceeding "^ *'''''® passage. three dollars in each case. 65. The adjutant general and the militia headquarters Privileges of staff shall be exempt from serving on juries or in any ra^aSfstlffi"^' civic office and from statute labor or poll tax, and the correspondence of the adjutant general's office on militia duty shall be exempt from postage. 66. Effective members of volunteer corps of all ranks Pi»iiegea of inn n • • • • T ^r* r volunteers shall be exempt trom servmg on juries or m the office of from jury duty, constable and the performance of statute labor or poll tax, except in respect of animals of draught or assessment on property; provided they be certified by the command- ing officer of the company to the clerk of the peace yearly, on oi; before the first of May, and the clerk of the peace shall when required give to the party exempted a certificate. certificate that his name is included in the list of exemp- tions ; and such certificate, when produced to the surveyor of highways or commissioner of streets, shall entitle the party to the exemptions allowed him by law ; and the overseers or commissioner of streets may call upon the commanding officers ^of any corps of volunteers to affix his list of effective subordinates at any specified public place within ten days notice once in the year, and on non- compliance with this requisition his command shall not rank as effective for the year. OF MILITIA RETURNS OF STRENGTH, TRAINING, AND REGI- MENTAL SERVICES. 67. All retui'ns shall be in the forms prescribed by the Returns; form commander-in-chief. °^' 68. Any officer wilfully making a false return shall be Penalty for cashiered by a general court martial in time of war, or be f*'^®™^™^- deprived of his commission in time of peace by the com- mander-in-chief, who may refer cases to court martial at his discretion with or without appeal being made ; when acquitted, shall reinstate the accused officer, and expenses of prosecution and defence shall be defrayed from the public funds ; but in case of conviction the defendant, in addition to being cashiered, shall be liable to fulUcosts and expenses, including all charges for the assembling and sitting ot the court. 69. Every captain shall before the first day of Novem- oompanyre- ber in each year, and oftener, if the colonel shall require it, make returns of the strength of his company and of 132 MILITIA. [part I. Chap. 2[). Hcgimcntal returns. rcn;ii(ic'y lor uniission to make return- Responsibility of officers af^ to returns. AdjutanL-i: duties of, J Finaneial matters. ^"o returnsj no pay. Certiiieate to adjutant to ac- company re- turn. Do. to quarter- master. ciuartermasters --duties, &c. the arms thereof, which are to be addressed to the adju- tant ; and the colonel shall before the first day of Decem- ber make out for and forward to the adjutant general a return of the strength of his regiment and of the arms and the amount of fines collected, and of the expenditure thereof, with vouchers. 70. Any colonel failing to make the returns prescribed by the preceding section shall forfeit a sum not exceeding forty dollars ; and his adjutant shall not be entitled to any allowance for the current year, nor shall, his command receive any gratuitous issues of any kind for the year next following. 71. Captains, subalterns and officers in charge of squads shall be responsible for the accuracy of squad returns of men and fines, the captain collecting them with his company returns and superintending the proper performance of duty by his subordinates, who shall be accountable to the commanding officers and the com- mander-in-chief for any neglect of duty on the captain's report thereof. 72. The adjutants will collect from the captains all the summaiy company statements of strength, musters and drill, and imder the order of commanding officers will compile the regimental statements in duplicate — one copy for the information of the colonel and the other through him with his signature for record in the adjutant general's office at headquarters; and the adjutants of regiments shall have access to all regimental company and squad books and documents at all times ; but shall not interfere with financial matters without the express orders of the commanding officers conveyed in writing, who may desire him or any of the field officers to investigate the quarter- master's accounts, or may hold boards of officers for that purpose, consisting of not less than two captains, pre- sided over by a field officer. Neither the adjutant nor quartermaster shall be entitled to any pay or allowances until their returns and accounts are approved of. The financial returns of the year (section 69) shall be accompanied by the following certificate : — I certify that [rank and name] being first [or second] class adjutant of the regiment under my command, has per- formed his duties to my satisfaction, and that all the periodical returns of my command have been sent in to this date. I also certify that [rank and name] being quarter- master of my command, has settled all his regimental accounts of the year, and that correct abstracts of these accounts have been furnished to headquarters. 73. The quarter-masters and their sergeants shall, on the information of the respective officers, or other compe- tent regimental authorities, collect and account to com- manding officers for all fines, and if necessary shall prose- TITLE VII.] MILITIA. 133 cute for tlie same ; and shall have access at any time to Chap. 29. any regimental company or squad records, having reference to the liability to or collection of fines ; and it shall be their duty to collect all fines from the captains of com- panies, giving their vouchers, and countersigning the captain's book when satisfied of their correctness, and reporting any inaccuracy of records of accounts that may come under their notice to their commanding officers ; and they shall collect fines due from officers direct, iji the name of the commanding officer, and give vouchers for the same on receipt. 74. It shall be the duty of the quarter-master to make iietmn of, &c. out the financial returns in duplicate, one copy to be forwarded by the commanding officer with his signature thereto annexed to the office of the adjutant genera], and the other to be kept at the regimental headquarters, and to be at all times open. to the inspecting officers, and on application to the commanding officer or the adjutant, to captains of companies, who may examine, take copies of, or make abstracts from the same, in the presence of the adjutant or any field officer. 75. Quarter-masters of disembodied regiinents of militia Qimitermasteis shall give bonds to the amount of two hundred dollars, ?|g1ments°to'''' with two approved securities, for the due performance of ^'™ ^°^^''' their duties in time of peace, and shall be entitled to five per cent on all fines collected after accounting for them, Eemuneration. and paying in the aggregate to the lieutenant colonel, who shall hold an officers meeting for final settlement once or officers meet- twice in each year, when company and squad books, and ^^fj°^ ''®'"^" all other vouchers shall be produced, examined and verified by the lieutenant colonel and the two senior officers at the meeting, with their signatures attached. 76. In embodied regiments, and during war, quarter- Quaiteimasteis masters may be held to security at the discretion of the regtoentsfand commander-in-chief, according to the amount of public "i^ring war. property in their charge, and paymasters will be obliged Paymaster, do. to aiford the same securities as are exacted in the line. OP MILITIA COURTS IN TIME OF PEACE. 77. The commander-in-chief may assemble militia Miutia courts. courts in accordance with the practice in the line, but no penalties not prescribed in this chapter shall be inflicted in time of peace. 78. Should it be inconvenient to assemble general courts comts martial, martial of a president and twelve members, they may be ^°'^ composed. formed of a president, being a field officer, and six officers not inferior in grade to the defendant. The commander- in-chief may assemble courts of enquiry, in accordance qui^'.^°'®°' with the practice in the line. 79. Any officer guilty of conduct unbecoming the cha- unbecoming raeter of an officer and a gentleman, may be deprived of Imc^f. °^ 134 ■ MILITIA. [part Chap. 29. Penally. Financial defal- cation. Criminal cases in time of peace. Prosecutors in courts martial. Charges, &c. to be published. Officers on trial to have copy. Officers redu- ced to have copies of cor- respondence. Pay of militia or volunteer courts. How limited. "Witnesses fees in military courts. Penalty for re- fusal to appear, Affirmation. his commission by the commander-in-chief, or at the option of such officer be brought before a court martial, when if convicted he shall be reduced, and be fined not less than twenty-five dollars nor more than fifty, which shall go towards defraying the expenses of the court. 80. Financial defalcation of any kind connected with the militia service shall on the information be cognizable by the ordinary courts of judicature, and commanding officers ma^y cause such cases to be handed over to them to be dealt with according to law, and the provisions of this or any other chapter having reference to fraud. 81. 1^0 court martial shall adjudicate on any criminal case in time of j)eace ; nor shall any proceedings in any militia court bar any ulterior proceedings in any other court ; and in time of peace, conviction by a civil or crimi- nal court shall be cognizable by the commander-in-chief, who may act thereupon by depriving any officer of his com- mission for conduct unbecoming an officer and a gentleman. 82. In courts martial the commander-in-chief may appoint prosecutors and acting judge advocates, but no complainant or party to the suit shall prosecute. 83. The charges, finding sentence, and revisal of all courts martial on officers, shall be published in the royal gazette ; and any officer who has been on trial may call for a full copy of all proceedings, which shall be furnished to him from the .place of record without charge. 84. Any officer reduced by order of the commander-in- chief may demand full copies of all correspondence con- nected with his case, which shall be furnished him free of expense from the place of record. 85. The commander-in-chief may call for vouchers, and draw upon the treasury for the sums necessary to defray the expenses of militia or volunteer courts.; but no presi- dent or members of any court, nor any acting judge advo- cate or prosecutor, shall be entitled to more than four dollars a day, travelling expenses included, when residing more than ten miles from the place of assembly of the court, or more than two dollars a day if residing on the spot or within ten miles of it. 86. Witnesses fees in all military courts under this chap- ter shall be the same as in the supreme court. "Witnesses refusing to appear before any militia or volunteer court or civil court, on being summoned for default before any civil court, shall be liable to the same penalties as if they had refused to appear before the court before which they may be summoned for non-appearance, with the same costs and expenses. 87. Persons objecting to oaths from alleged conscien- tious motives may, upon the president being satisfied that the objections are sincere, be put upon Uie affirmation which the statute prescribes for such witnesses. TITLE VII.] MILITIA. 135 88. In all proceedings under this chapter for the re- Chap. 29. covery of penalties the cases shall he cognizable by the Recovery of ordinary courts of judicature, before which documentary penalties. and other evidence herein prescribed shall be valid ; there shallbe no appeal to a superior court nor any charge for costs. OF THE ORGANIZATION, DISCIPLINING, AND TRAINING OF THE VOLUNTEERS. 89. The commander-in-chief may authorize the for- commander-in- mation of artillery, rifle and cavalry companies, to be authodzJfor- composed of men between the ages of sixteen and forty- ^nJe^ 4'.''°"' five, in the several regiments or battalions, and may frame regulations for them. 90. Volunteer corps shall have their districts prescribed J?o"°'jfo^^'^' by their commanding officer ; two or more companies with prescribed. the same headquarters may be included in the same dis- trict; ,the city of Halifax and its suburbs, including Dartmouth, shall be one district. 91. Members of volunteer corps shall be divided into volunteers; three classes — effectives, non-effectives, and honorary ^"^ cifssified. members. The qualifications of effectives shall from time to time be prescribed by the commander-in-chief; but no volunteer who is not uniformed, has not taken the oath of allegiance, has not perfected himself in training as far as Qualification instruction has been offered, or shall not maintain his f*"^ effectiTea. efficiency in training to the satisfaction of the commander- in-chief, the inspecting field officers, and his commanding officer, or shall fail to attend any inspection in uniform without leave of absence, or shall not have attended twelve days aggregate training in the year under the staff instruc- tors or the officers of his corps inclusive, irrespective of target practice, withoutjleave of absence or sufficient excuse to his commanding officer for the information of inspectors at headquarters — shall not be returned as an effective, or claim any exemption as an effective, or shall claim any privilege whatever as an effective volunteer. No volunteer rifle ^^^^^ ^^ ^^ company, being under the strength of thirty-six mem- company, as bers, exclusive of officers and non-commissioned officers, [efesflc^"" not being rank and file, shall be entitled to any privileges, exemptions, or allowances made or paid for from the public grant. 92. STo excuse of absence from inspecting field officers Absence from inspections shall be deeapaed sufficient, except on leave whaf suffioUnt given by the commanding officers of volunteer corps in e=^ous«- writing, on account of unavoidable absence from the dis- trict of the corps, or on account of sickness ; when a medical certificate must be placed in the hands of the officer commanding on parade ; and all leave given must be entered into the order books of corps. 93. No commissioned officer of volunteers who shall officers com- missions; re- permanently leave the district of his corps, or who shall tention and •^ cancellation of. 136 MILITIA. [part Chap. 29. Oath of alle- giance. Bye-laws in time of peace. Fines. Fines how re- covered. Uniform, &c. Commander-in- chief may com- bine Tolunteer com{)anies with militia. Formation of new companie.'^. Drill of volun- teers how re gii- lated. Diaries. No returns ; no issues. fail or cease to be eiFeetive, according to the definitions of this chapter or the military regulations from time to time laid down at headquarters, shall retain his commission ; and the commander-in-chief, at his discretion, and upon authenticated military reports from inspectors, shall have power to summarily cancel the commissions of all officers who shall not fulfil the military condition of their rank, and may call together boards of examination to be pre- sided over by any inspecting officer or field officer of militia, to decide whether such officers have the requisite military qualifications for command and may act at discre- tion according to the report. 94. Every person enrolled in any volunteer company shall take the oath of allegiance to her majesty, 'which oath any officer or acting officer duly authorized by the commander-in-chief may administer. 95. Volunteer companies may make bye-laws for their government in time of peace and may impose fijiesforthe breach of any such bye-laws ; but no such bye-laws shall be in force until approved of by the commander-in-chief. 96. Fines imposed under any bye-laws, and dues and liabilities incurred by any volunteer, may be sued for in the name of the commanding officer of the corps as a private debt, before one or more justices of the peace, or before the supreme court, or any other court, acording to the amount claimed. 97. The dress of volunteer companies and the horses of volunteer troops of cavalry, shall be provided at their own expense, and their uniforms and appointments shall be subject to the regulations and the approval of the com- mander-in-chief. 98. The commander-in-chief may combine the volun- teer companies of any county with the militia regiments of the same, or may organize and drill them as a separate and distinct force in companies, regiments or brigades ; but no volunteer corps hereafter shall be formed without the sanction and consent of the commanding officer of the militia regimental district of the proposed volunteer corps. 99. The commander-in-chief may make orders for calling out the volunteer companies for driU, and may prescribe the number of days during the year on which such companies are to meet for the pui-pose, not being less than twelve days ; and no volunteer drill or training shall count unless diaries of the particulars, in the form pre- scribed by the commander-in-chief, be returned by the captain or officer commanding the corps to the office of the adjutant general at headquarters, retaining a duplicate of the same at the headquarters of the corps. 100. No volunteer corps shall be entitled to any issues from headquarters between returns unless the periodical returns last called for by standing orders or special TITLE VII.] MILITIA. 137 demand be sent in within ten days of the requisition from Chap. 29. headquarters. Volunteers shall not be exempt from Not exempt - attending militia training in their regimental districts uXg™']"''^ unless they have completed twelve days training previous to the militia of their regiment being called out, and cap- tains are to see that all defaulters at drill turn out with penalty for the militia. Neglect or evasion of this section shall «^»s'°°' *<=■ disqualify the corps as effectives for the year. 101. The commander-in-chief may appoint courts mar- anS'o'f mqul^i'i tial or courts of enquiry of volunteers, either as general or company courts, which shall have full power and autho- rity to enquire into any matter or subject touching the organization, discipline, or conduct of volunteers, or touch- ing any differences or disputes between volunteer corps which may be submitted to them by the commander-in- chief ; and all persons shall, when required by summons from the president of any court, be bound to attend and give testimony on any subject under enquiry, such testi- mony to be given in the mode practised in her majesty's regular forces, and in default of appearance shall be sub- ject to the provisions of section eighty-seven of this chapter. 102. Complaints relative to the misconduct of any vo- Miaoondnet on lunteer while on duty or on parade, may, when submitted " ^" to any such court by the commander-in-chief, be investi- gated before any such courts ; and in case of such miscon- puQighment duct being proved, the court may recommend the expulsion of the ofrender, or may impose a fine not to exceed ten dollars. 103. The recommendation or sentence of any such sentence. court if confirmed by the commander-in-chief, shall be final. 104. The commander-in-chief may constitute mihtia courts; how. and volunteer cotirts of judicature or enquiry, according "°°° ' " ^ ' to local and numerical convenience, and riiay direct their proceedings to be carried on on oath, and may cause them to investigate and give their opinion, or to decide, subject to his revisal. All their proceedings shall be in writing Proceedings of and be signed by the president of the courts, and their sentences or opinions, and the revisal shall be published in the royal gazette. 105. On me resignation of any officer having charge cancelling of of arms or other government property, the commander-in- SaSon?f offic? chief may give up or return the bond given by such officer, whenever he is satisfied that the terms thereof have been complied with ; and officers receiving or giving over government property shall exchange mutual vouchers to be sent into headquarters. 106. Mutual military debts, in militia or volunteer ^^„^^,]|f^y^4. corps, may be recovered as common debts. 18 138 militia. [paet i. Chap. 29. of the militia staff in time of peace. Militarysiaff 107. The commander-in-chief shall have the entire troi of comman- military command and control of the permanent militia der-in-ehief. ^^^^ ^^ ^-^^ provincc, and in time of peace may direct the summary discharge or reduction of any officer, non-com- missioned officer or man, who may be guilty of misconduct whilst receiving any pay or remuneration ; and this rule shall extend to all regimental staff, who shall he in the receipt of any pay, allowances or emoluments. Militia staff officers shall not assume executive command on parade without the express orders or request of their senior officer of l^periaTaSd in actual command of the parade ; and no officer of militia, militia forces, g^^^-g- ^j, Q^j^gj,, shall assumc commaud of forces composed of imperial and militia troops without the order or consent of the general or other officer in command of the imperial forces, unless in cases where there may be no imperial commissioned officer present, or there be standing or other orders issued by the officer commanding the imperial forces to the contrary. m?ybereduM§ 108. The commandcr-in-chief may also direct the remo- fS'nh^J"? °'^^''" "^s-l or reduction of any officer, non-commissioned officer in-cniet lor ne- . _ .,« it- • -i ^ gleet, &c. or private, who may be employed in any capacity by the province on pay, for neglect of duty or inefficiency in time of peace. ^eCoSl "or ^09. The militia authorities at headquarters shall not debt of staff.; , be held responsible for any debts contracted by staff ser- geants being permanent instructors ; nor shall any stop- page or conversion of their pay be made at headquarters on account of their debts, and they shall be under the Slmptfons^of same discipline as the line, and shall have similar exempt the^iinT- *' °^ *^°^s from arrest for small debts, unless cashiered, when they shall be liable to civil process for antecedent debt, and the substance of this section shall be published in the royal gazette, and by such other means as the comman- der-in-chief may direct. Pofai^forres °^ 110. Officers, non-commissioned officers, or men of the eligible for staff local forccs shall be eligible for the permanent mihtia staff of the province on inspection, examination and approval of the commander-in-chief. OF AEMS, ARMORIES, MILITARY STORES, BUILDINGS, GROUNDS, AND TARGET PRACTICE. vemmenf to "■ ^^^- When any battalion, regiment, district, company, pay one-third Or couuty, shall have erected and completed an armory or expense of drill n -n ^ ^ . , ^ ,i - . *^ -, ^ ,, •'. room, &c. when uriii room, in any part of this province, under the direction completed. ^^^ ^-^j^ ^^iQ sauctiou of the commander-in-chief, and shall show to the satisfaction of the commander-in-chief that such drill room_ or armory is completed and ready for use, and is of sufficient dimensions, one4hird of the cost may TITLE VII.] • MILITIA. 139 be drawn from the provincial treasury, on accounts and Chap. 29. vouchers verified on oath being produced at the financial secretary's oflice. 112. The storage, conservation, and distribution of all storage of arms arms, military stores, and other government property, latedV com^-"" appertaining to the local forces of the province and all Sfiet''""" issues or withdrawals of arms or stores, shall be subject to the regulations and orders of the commander-iia- chief. 113. Persons having charge of any government pro- J'ing'ln'^chiJIe' perty shall be responsible for the same in full value as for of government ordinary debts, and receipts and records in the adjutant p'^°p'^'' ^" general's office shall be proof of possession, and recipients may, at the discretion of the commander-in-chief, be held Bo^^g to bond in two sureties to the full amount of the property. Until receipts of bonds persons shall be liable for loss or damage who have taken over government property as next seniors equally ivith the bondsmen, and may be sued singly or together with the former for recovery. 114. Any armory, drill room, or other building, on any b™™'^'^o"ug° ground paid for or rented in whole or in part by any grant of locai forces. or any monies drawn from the public treasury shall, at the discretion of the commander-in-chief, be open to the occupation or use of the local forces without distinction ; but this section shall not apply to volunteer arm ories Not to apply to targets or grounds rented expressly by volunteers for their I?morie1i^ &c. own use, and for which they may receive a subsidy. 115. Drill grounds on which any money has been toiJel™™'^'' expended by the provincial government shall be open to both mihtia and volunteers. Where there are no parade ^ay J)^*! ^n-ed ; grounds the commanding officers shall hire them at a sessed by rent not to exceed three dollars per diem. The sum °°°°""'° required for the payment of such rent shall be assessed by the sessions in the respective counties. 116. The commander-in-chief shall approve and regu- ^eoM'tFucti'ir late all target practice, and the construction of butts and of butts, &c. their repair shall be subject to the supervision of the militia staff". 117. Any two justices of the peace_ may suspend ^^eueemlybe target practice on any range on information of danger, ^llggg^*"*''^ pending report to and enquiry by the commander-in-chief, and any person who shall after notice of such suspension use such targets, pending such enquiry, shall be fined a sum not exceeding five dollars for each offence. 118. The governor in council mav in case of anv Governor in • T , ,T jy ,^ ■ 1 council may emergency provide at the expense or the province such provide. additional number of rifles and accoutrements for the use p™|e''of pro- of the militia as shall be deemed advisable. ''''"=®- 119. Militia men of any rank receiving arms, accoutre- ^^g gf°en?™' ments, or government property, may be required to give a subordinate bond to their commanding officer or captain sessions. 140 MILITIA. [part Chap. 29. Form of bond. Anns, where deposited. Inspection. Kesponsibility of senior offi- cers for arms, Ac. Penalty for dis- posing of armsj Ac. -;} in the following form, executed by themselves and two securities : — Know all men by these presents, that we, A B and C D, are held and firmly bound unto our sovereign lady the queen in the sum of fifty dollars, to be paid to her majesty, her heirs and successors, for which payment well and truly to be made we bind ourselves and each of us by himself, our and each of our heirs, executors and administrators, firmly by these presents. Sealed with our seals and dated at — the day of , A. D. 186-. The condition of this obligation is such that if the above bounden A B shall at all times hereafter safely keep in good serviceable order and condition, and have ready to return when called for by the commanding officer of the regiment [specifying the particular regiment to which such persons may belong,'] one rifle or [specifying the arms and accoutrements lohich may have been received hy such person] which have been issued to him under the laws relating to the militia, and shall in all things perform the provi- sions of such laws touching such arms and accoutrements, then this obligation shall be void. Signed, sealed, and delivered \ A. B. ^seal.^ in presence of J C. D. (seal.) 120. The officer in charge shall lodge the arms and accoutrements in a suitable place, to be delivered to his subordinates as he shall order, and every recipient shall return such arms to the place of deposit within twenty- four hoiirs after the performance of the service for which he received the same, under a penalty of one dollar for every day's neglect, and shall produce his arms for monthly inspection under a penalty of one dollar, and for staft' and field officers inspection on three days notice under a penalty of two dollars. 121. Senior officers of corps shall be primarily respon- sible for arms and accoutrements delivered to them, for which they shall give a receipt or bond as required from headquarters ; but on the demise or resignation of any senior officer his next senior officer shall become respon- sible by virtue of his command until he either declines the command or sends in his bond or receipt, and he shall be empowered to exercise his authority over all the sub- ordinate bonds and issues of the command and bring actions thereupon. 122. Every man who shall convey any arms or accou- trements out of the limits of his regiment except when on duty, or shall dispose thereof, and any person who shall receive the same, shall forfeit one hundred dollars for every musket or rifle, and two dollars for every article of accoutrement ; and every person who without authority shall convey any such arms or accoutrements on board of TITLE VII.] ' MILITIA. 141 any vessel to carry out of the country, and any person Chap. 29. who shall receive them for such purpose, and any person ,^ ^ .„ ,. -Ill ■ r> J.X Penalty for lUe- having illegal possession oi any government property or gai possession not being able satisfactorily to account for such possession, proferty."""^"' shall be liable to a fine of five hundred dollars, payable one half to the informant and the other half to the use of the corps. 123. The colonel when required by standing orders or inspection ^and specially from headquarters shall order inspections of the ifc."y co?o"et. arms, accoutrements and government property of his command, making a return of their condition. 124. "WTienever required or before removing out of tarnld whe™" the limits of his company, every man shall return to the required. captain the arms and accoutrements he shall have received pg„^,ty j^^. ^^^_ in good serviceable condition, under a penalty of twenty gieot. dollars, and shall pay the whole value of the articles in case of total loss to the commanding officer. 125. Should any man's arms or accoutrements be in a ^l^^^,l^ VonfC dirty or unserviceable condition, he shall be answerable in tion. full for cleaning, repairs and all expenses through his commanding officer to headquarters. 126. Commanding officers shall be legally liable in full ^Ss utwl for the safety and condition of all arms as well as other for a'l arms, 4c. public property given over to their charge or that of their subordinates, irrespective of bonds or securities, and shall be entitled to a receipt from the quartermaster general on re-delivery, and the receipts or records at headquarters shall be proof of possession unless vouchers of rc-delivery can be produced. OF FINES AND PEOCEEDINGS FOR THEIR RECOVERY. 127. All actions for anything done or authorized to be acUoM,'Z.°^ done or personally incurred under this chapter, shall be commenced within six months after the cause of action arose, and shall in time of peace be deemed and conducted as ordinary civil proceedings, subject to provisions of section forty-six of this chapter ; and the defendant may plead and give this chapter and the special matter in evidence. 128. All fines unless otherwise directed when not FJn«^3, how re- -t covGrGQ, levied exceeding twelve dollars shall be recovered before one and commuted! justice; and when above twelve dollars, before two jus- tices ; andjif payable by a militaman may be recovered in the name of the officer commanding the Company ; and if payable from an officer in the name of his commanding officer ; and the amount in either case may be levied with costs of distress ; and for want of goods the offender shall be committed to jail for the term prescribed for the offence ; and if his term be not prescribed he shall be committed for two days for every dollar of the penalty ; and this commutation shall be applicable to all pecuniary dues or penalties under this chapter in time of peace. 142 MiLiTU. ' [parti. Chap. 29. 129. Militia fines incurred within the municipal juris- Fines in city of diction of the citj of Halifax shall be recoverable in the recoTOred?'' city court, irrespective of amounts due and the corres- ponding numerical jurisdiction of magistrates. S'C""''' 130. All fines collected by the quarter-master shall be applied under the direction of the colonel and ofiicers towards defraying the expenses of the regiment, including stationery and postage of regimental letters not being to headquarters. tiMr" '° ■'""" 131- N'o justice of the peace shall take any fee for any service performed under this chapter unless specially pro- vided for by the same, proces^s™^"* "' 132. Any process for the recovery of a fine under this chapter may be amended until final judgment. Aocountoffines -^<^ ^^ accouut of all fiucs with their appropriation shall be rendered to the office ot the adjutant general of militia by the colonel within three months after collection under a penalty of twenty dollars for default, tia service to be 134. All amouuts votcd for militia service shall be oomma°nder-in. P^^-ccd at the disposal of the commander-iu-chief for the chief. purpose of employing stafi" officers and drill sergeants, or specially examined and approved appointees belonging to the local forces, on the training and drilling of the militia and militia officers, and for the encouragement and maintenance of volunteer corps, — for the storage and preservation of the arms furnished by the imperial govern- ment, and generally in such other services as may from time to time appear to the commander-in-chief necessary for the effectual organization of the local forces. TOu?herito'be 135- Accouuts with vouchers for all sums expended tlri"* kffina^Q-^" ^'^^ *^® militia service shall be rendered quarterly to the ciai secretary, financial Secretary, to be audited by him and laid before the committee of public accounts. tora"'°°°'' 136. The following terms used in this chapter shall be construed thus : — " Commanding officers," " colonel," or " lieutenant colonel," shall mean any officer, non- commissioned officer or other person lawfully ordered, delegated or put in command of any regiment, company or squad, or smaller party of men in permanent, tem- porary or acting command by his superior officer, whose authority he shall have during the continuance and until the performance of the required duty ; " man " or " mili- tia man" shall mean any person enrolled in the militia; "year," unless the context and meaning be clearly to the contrary," shall mean from the first day of January to the last day of December; and "returns" shall mean all statistical information. OF THE MILITIA IN TIME OF WAB. offi"STn'ume 13'7- The executive command in time of war is hereby of war. vested in the officer commanding her majesty's imperial TITLE VII.] MILITIA. 143 forces in this province. Whenever the militia shall be Chap. 29. called out for actual service in case of invasion or immi- . ~ nent danger thereof every officer and man belonging to it caiieJToutfor shall be subject from the time he has been ordered or suyeou"!?-* drafted for actual service to the officer commanding her mutinyl^^ie majesty's forces in this province, and to her majesty's regulations for the army, to the articles of war, and to the act for punishing mutiny and desertion, and to all other laws there applicable to her majesty's troops in this province, except that no militiaman shall be subject to any Not subject to corporal punishment, except death or imprisonment for fghm°/ntJ'xMpt any "contravention of such laws, and except also that the go^J^g^'j '""P"' commander-in-chief may direct that any provisions of the said laws may not apply to the militia. No militiaman rioggtog. shall be flogged, except such punishment be commuted from the penalty of death. 138. No militiaman shall be entitled to dismissal from Dismiggai. duty or discharge from service when on the line of march or before the enemy, notwithstanding the termination of any period of service, limited either by special agreement or by this or any other chapter. 139. When on actual service, the officers, non-commis- Pay, aiiow- sioned officers, trumpeters, drummers, fifers, buglers and Icron^otuaf' privates shall be entitled to the same pay, allowances and ^«=""=«- rations as her majesty's regular troops, to be received from the day they march on actual service until dismissed by competent authority ; and at the time of their dismissal they shall be allowed a number of days' pay to defray their expenses to their places of abode, according to their dis- tances, at the rate of fifteen miles a day. 140. If any person in actual service be wounded or wounded, &«.; disabled while on duty, he shall be supported out of the i^°'="PP°rted public funds of the province as long as the disability shall continue. 141. In case of the loss of any officer or man while on Death; proTi- actual service, provision shall be made for his wife and ^""^ f<"" ''*™''y! family out of the public funds. 142. When on the line of march or escort duty, or any Biiietung. other service, or in camp or quarters, the governor in coun- cil may make regulations for the billeting or rationing of the militia ; such regulations to assimilate as far as practi- cable to similar regulations for her majesty's other forces. 143. Captains of companies shall cause a ballot to be Baii9tforaotua made of the first class for forming a roster or list, whereby tSIn ^ ' the men may be called into actual service in manner fol- lowing : — First. — ^Each name shall be written on a piece of paper, which shall be rolled up and put into a box or hat, and well mixed ; all pieces of paper so used to be of equal size and rolled up in the same manner. Second. — ^Pieces of paper of the same size, rolled up in 144 MILITIA. [part I. Chap. 29. the same manner, to the extent of the number of men, shall be mixed together in another box or hat. Third. — Two persons nominated by the captains, shall publicly draw all the names alternately, numbering them from one upwards as drawn, and a consecutive list of the names and numbers shall be made as the former are drawn which shall be a service roster, the first names drawn and numbered being first for service ; artillery and cavalry shall be ballotted for service rosters in like manner. Men for actual 144. When the commander-in-chief shall order any tiirniahed."^" number of men for actual service, they shall be furnished in as exact proportion as possible to the number of efiec- tive men ; and every company or troop shall furnish its proportion from the first class, according to the roster ; and every man liable ta serve, unless prevented by sick- ness or other sufiicient cause, shall go or find an approved sutotitate°or substitute, and in default shall be liable to a penalty of forty penalty. ' doUars ; p,nd if the same shall not be paid, may, by the commanding ofl&cer, be imprisoned for three months, and the next man on the roster shall serve in his place, who shall have the whole of the fine (if paid) and shall go or find a substitute ; but if he refuse or neglect to go, he shall be liable to the same fine and imprisonment ; and the next man shall be called out, and he shall have the last mentioned fine (if paid) if he, by himself or a substitute, shall serve, and so on as each case may happen ; but no man shall receive more than one fine if paid. Not liable to 145. If auv part of the company shall be called out serve twice m„ , ■'J^. r j four years until oitencr than ouce m tour years, no man who had served haTe^^leryed! shall be liable to serve again until all the available effec- tive men shall have served personally or by substitute. Place on roster 146. "Wlien any man shall remove from the limits of onremoTa. ^^.^ compauy to any place within the limits of another company, he shall fall in on the roster immediately before the man who has drawn the same number. ^wiity of raen^ 147. Upou Calling out any of the militia into actual ascertained, &o. scrvicc, the 6ommander-in-chief may direct necessary mea- sures to be adopted to ascertain the ability of every officer and man to perform his duty ; and if any man shall be found unable to serve, his place shall be supplied by the colonel ; and if such person shall be a substitute, the person in whose stead he is or stands, shall procure another sub- stitute under the same penalty as for refusing to go into actual service or finding a substitute ; or if the man has been originally drafted for the regiment, the colonel shall take the next man drafted for actual service in the same company, who shall go or find a substitute under the same penalty. Militiamen 148. Militiamen drafted and notified by the command^ drafted for war -fc j. ' ± • i-iiii -i , deemed en- lug ofiiccr or captaiu to scrve m war, shall be deemed to listed. ^g enlisted ; and any militiaman who shall not voluntarily TITLE VII.] MILITIA. 145 appear at any appointed place within twenty miles of his (.Iiiap. 29. abode, in person or by substitute, within ninety-six hours, (any intervening Sunday, Christmas Day, or Grood Friday, not included,) shall be proceeded against under the mutiny May te pro- act and articles of war, notwithstanding the non-receipt of under nvifSny enlistment money, and the fact of being drafted shall, to tendan"o°°"''''' all intents and purposes, be an enlistment within the mean- ing of the articles of war, with or without attestation or the formalities of enlistment practiced in her majesty's regular forces ; and militiamen or their substitutes, if absent, shall be prosecuted as deserters. Non-commis- sioned officers of militia shall return to the ranks on transfer or joining an embodied corps. 149. The commander-in-chief may order drafts to be commander-in- iTi TT-TT T chief may selected, the names returned to mm, and the men to be select drafts. drilled and disciplined without calling them into actual service ; and may select officers to command such men, and may direct the measures to be adopted, and make such orders as mav be necessarv for that purpose ; but the Numberofdaya number of days of battalion training shall not exceed fifteen in one year. 150. "When the commander-in-chief shall order any Jaf™tutilei-* ' number of men for actual service from any regiment or vice. battalion they shall be drafted from the volunteer compa- nies ; and when such volunteer companies shall have been formed they shall in all cases be considered the first-class for actual service, and no draft shall be made from other than volunteer companies until the whole of such compa- nies have been called into actual service. 151. Whenever a proportion of the militia of Halifax amy andnavy"^ shall be called into actual service the colonel of the regi- clerks, &a. ment to which clerks, storekeepers, mechanics or laborers belong who are employed in any department of the army - and navy, may apportion the number of drafts which they ought to furnish and procure substitutes in their places on the most reasonable terms, and the expenses shall be Expenses ; how assessed on them in proportion to their daily pay by the ''^^®^^®'^- colonel with the assistance of two captains. 152. Every person assessed under the preceding section collection of shall on notice pay the amount to the colonel, and on refusal any justice of the peace, upon complaint of the commanding officer, may issue his warrant of distress upon the oflender's goods and sell the same, and for want of goods may commit him to jail until the amount assessed be paid; but any such person may procure a substitute or serve personally, and may, on receiving due notice of the duty required of him, declare such inten- ■'tion, but shall serve until a substitute be procured. 153. In any district exposed to attack by water the how pro'Tidei. sessions, on presentment of the grand jury, may assess the sum necessary for providing armed boats for defence, 19 146 MILITIA. [part I. Chap. 29. to be under the direction of the commanding officer, and when no longer necessary they may be disposed of by the sessions. , to^MUedTu" 1^4. If upon any emergency arising from invasion for actual ser- made Or threatened in this province or in the province of jSTew Brunswick it shall be necessary to call any of the militia into actual service, the commander-in-chief may order the colonel of any regiment to furnish one hundred men for every six hundred of the first class, or the like proportion for any greater or less number, such men to be furnished either from draft of the regiment or by volun- teers. t^™™^nder4n- 155. The commauder-in-chicf may select captains and lectofficevs.ic. subaltcms to Command the men furnished under the last section and may form any of the men furnished by the different regiments into a regiment or battalion tor actual service, and appoint field, staff and other officers for the same, and order such regiment or battalion into barracks or camp and adopt measures to render them efficient for actual service. ye°fenelofi/°'^- ^^^' '^^^ commander-in-cMef may accept the volun- Brunswiek. tary scrvicc of any of the embodied militia for the defence of New Brunswick against the common enemy. Actual service, 157. In casc of iuvasiou made or threatened, the com- mander-in-chief may call the militia into actual service and may order any part thereof to march from one part of the province to another. den^attadc^"''" ^^^' ^^ ^^^^ ^^ ^^^ suddeu attack made or threatened commandiAg whcn the commander-in-cMef cannot be immediately mtmmilot^^ consulted, the commanding officer shall, if he thinks it district, &c. necessai-y, call out the militia ot his regimental district for active service ; and if any invasion or attack shall be m'ade or threatened in any place where the officers com- manding regiments in the county cannot be consulted, the militia may be called out by any officer on the spot, who shall forward a report to the commander-in-chief, notify- ing the danger and strength and motives of the enemy ; and such ofl&cer may impress men, horses, boats and carriages, as the nature of the case may require, a reason- able compensation for which shall be made to the owners ; and the governor in council on the certificate of the commanding officer and any two captains shall draw on the treasury for the amount. d?mlnd™' ^^^- -^^J demands under the last section considered exorbitant may be arbitrated by the next grand or special sessions of the county. t^d'byrSrt ^^^- Whcu any part of the militia shall be called into active service all duties, except in cases of great emer- gencies, shall be regulated by rosters. I^nlto femuy, ^^l. Whcu thcrc are two or more sons residing in the one excused. ' family of their father or mother for one year preceding TITLE VII.J BILLETTING TROOPS. 149 who shall be liable to be ordered for service\ '^p- 31. time under this chapter one shall be excused a "^V^d on the list shall be called. \ "^ o\^Hed 162. If any person, aged sixty years or upwaiy '^ widow, shall have a son, grandson or an appr6 whom solely he or she shall be dependant for\ living with him or her for twelve months prece^ shall be exempt from being ordered for service, so ^ he resides in the family and contributes to the supj the same. ^ 163. Local duties shall be equally distributed among Local duties- able-bodied men of districts; the able-bodied men of menofaeoond the second class of the militia shall form a local reserve S res"™. under the directions of the commander-in-chief in war when they may be organized, officered, trained and dis- ciplined by him for service in the province, and he may select the officers from the most effective ones on the unat- tached list, seniority of rank not giving any prior claim for employment, according to an alphabetical roster, to be kept by the captain of every company, and every person refusing to perform his term of duty shall be punished according to law. 164. "When by the direction of the commander-in- Guards. chief guards shall be kept so that the local duties per- formed by any one man shall exceed six days or nights in one year, the commander-in-chief may pay every such man for the excess over that time, according to the rate in this act mentioned upon certificate of the colonel. 165. Every person wilfully making a false alarm shall ^^i^e aiaim. forfeit forty dollars. OHAPTEE 30. OP BILLETTING THE TROOPS AND MILITIA. 1. Whenever any detachment of her majesty's forces Tropps:and or of the militia shall be ordered to march in this pro- Sttei^"^'' vince, the justices of the peace shall billet them in inns and licensed taverns, or in the houses of persons who have within one month previously kept an inn or licensed tavern ; and the persons on whom they are billetted shall furnish such troops or militia with lodgings and with pro- visions, consisting of bread, flesh and vegetables, and the officer commanding them shall give certificates of the number of meals and nights' lodging, which shall entitle the person supplying the same to twenty-five cents for each meal, and for every nights' lodging five cents. ]^46 BILLBTTING TROOPS. [PART I. CflA^ 30. 2. If any militia officer stall give a false certificate he -^stovMsB shall be cashiered by a general court martial, and shall oertifloates. ^Iso forfeit two hundred dollars, to be recovered in the supreme court, one half thereof to be paid to the infor- mer and the remaining half into the treasury. Expenses bow 3_ ijjjg governor may draw warrants on the treasury in anTdrlwn""^ favor of the parties entitled thereto under such certificates for aiU sums payable for the billetting of the militia, and also for the billetting of regular troops when on a march under a route granted by the governor on their removal from, one part in the province to another ; but no greater sum shall be drawn in any one year under this section than two thousand dollars. Certificates un- 4. The Certificates of the number of meals and nights' how^pfylwe'™ lodging furnished to any of her majesty's troops under the first section, and for which payment is not provided under the last section, shall entitle the person who furnished the same to receive payment from the officer granting the certificate, or from the officer appointed by the com- mander-in-chief to pay the same. Further provi- 5_ Whcrc the houscs Specified in the first section shall ting.Voops iS " not bc Sufficient to billet the whole regiment or detach- oertain cases. ^^^^^ pg_j,^ gf them may be billetted on other housekeepers in the discretion of the justices, and any person who shall refuse to receive troops or militia- so billetted upon him shall forfeit twenty dollars. Baggage con- g_ T WO justiccs may, upou thc application of thc com- vided; rates of man ding officcr and upon production of a route signed by charges. ^^^ commander-in-chicf, order a suitable number of carts or waggons and horses to be furnished for conveying the baggage of the regiment or detachment, and the owners shall receive from the officer commanding the detachment at the rate of twenty cents a mile for one horse, cart and driver, to carry five hundred gross weight for twenty miles, and for every additional horse fifteen cents a mile, but the additional load for each horse shall not exceed five hundred gross weight. When ordered to halt fifty cents an hour shall be paid while the detention shall last, and the commanding officer shall make out certificates of the weights, distances, time and cause of detention, and take receipts thereon for payments. Fines for re- 7. Any person refusing to furnish horses and carts or ionTe*yan"o™'^^ waggous whcu Ordered, without a reasonable excuse, shall forfeit eight dollars. Fines on offi- 8. If any commanding officer shall constrain any cart conduct iii?f-^ to travel more than twenty miles, or shall refuse to dis- fncea'.° ''°^''^^' charge it in due time to return home, or shall overload it, either by permitting soldiers or others to ride thereon or otherwise, or shall force carts or horses from the owners thereof, he shall forfeit eight dollars. TITLE VII.] PUBLIC FORTIFICATIONS. 149 9. No loaded cart passing from town to town, nor any Chap. 31. horse travelling for the owner, shall be taken for the Horses and purpose of transporting baggage. whenTcSy*^ employed. CHAPTEE 31. OF PUBLIC FORTIFICATIONS. 1. When the commander-in-chief of her majesty's. Private pro- troops shall judge it necessary to erect fortifications on p^J^^iated fo^r private property, or to apply the same for other military fortifications. purposes, he shall apply to the supreme court of the county where the lands are situated, and on notice given to the owners a jury of twenty-four freeholders shall be summoned, who after being sworn shall view the premises and ascertain to whom the lands belong and the value of the land of each proprietor separately, and shall return their verdict to the supreme court in writing under the hands and seals of at least thirteen of them, which shall be filed and become a record of the court. 2. The amount of such verdict shall be paid to the vaiuewhen ,. .. Tji • T'p n ,^ found, now and respective proprietors named therein, and it any ot them to whom paid. shall refuse to accept the same, the money shall be paid into court for their use, and such lands shall thereupon become vested in her majesty forever. K any proprietor be a minor the value of his land shall be paid to his guardian. 3. If the sheriflE' shall neglect to summon a jury he Fines on sheriff shall forfeit eighty dollars, and in case any of the jury |?eotmyduty. shall not attend or shall refuse to be sworn, such offender shall forfeit twenty dollars. CHAPTEE 32. OF AN ELECTRIC TELEGRAPH FOR MILITARY PURPOSES. 1. It shall be lawful for her majesty the queen, or any Buiidingofiino officer duly authorized by her, to cause to be built and authorS*^ established a line of electric telegraph, to commence in the city of Halifax and extend thence through and along the province of Ifova Scotia till it shall reach the boun- dary line dividing the said province from the province of New Brunswick. 150 IMMIGRANTS. [PAM I. Chap. 33. 2. Such line may be built along the side of any public Where to be highway, Street or railway, either above ground or under, placed. provided it does not interfere with the right of travelling thereon, or the posts and wires of the IsTova Scotia elec- tric telegraph company. s'E'Tffe^^i^ 3. All powers, advantages and facilities provided or given to her given by the act to incorporate the Nova Scotia electric majesty. telegraph com^Dany, and all acts in amendment thereof, and all privileges enjoyed by that company for building and maintaining lines of electric telegraph in the province of Nova Scotia, so far as the same are or may be applica- ble or required for building and maintaining a line from Halifax to the boundary of New Brunswick, are hereby given and granted to her majesty or any officer duly authorized by her in that behalf, and all persons acting under him for building and maintaining said line, subject, nevertheless, to all conditions and restrictions imposed upon such company. All fines, penal- 4. All remedies, fines, pains, penalties, and forfeitures protectiin°of provided by the act for incorporating the Nova Scotia tollp^y'totMs electric telegraph company, and the acts in amendment ''°^- thereof, passed or to be passed during the present session of the legislature, and all acts passed for the protection of electric telegraphs, for injuring, interrupting, destroying, obstructing or intermeddling with the telegraph line during or after erection, shall apply and may be enforced in the name of her majesty by information or indictment against any person or persons injuring, destroying, obstructing or intermeddling with the line hereby authorized to be con- structed. Tobe used for 5. The line hereby authorized to be constructed shall SiFital^ pJr-; bc uscd for public, military and imperial purposes, and for poses. j^Q other services whatsoever. TITLE VIII. OF IMMIGRANTS AND ALIENS. OHAPTEE 33. OF IMMIGRANTS. Appointment of 1. The govcmor has power to appoint an immigrant immigrant , ° . '■ . mii f ,t ■ • agent. agcut as occasiou may require. The salary of the immi- saiary. grant agcut shall not exceed eight hundred dollars. He Datiea. is empowered and his duties shall be to correspond with TITLE VIII.] IMMIGRANTS. 151 the secretary of the board of land and emigration in Chap. 33. London and with the agents appointed by that board, with ' the officers of any associations, or with public spirited persons desirous of promoting emigration to the colonies, and to furnish from time to time such information as may be useful to enable them to send out emigrants for whom there is likely to be suitable employment in this province. " To open a book in which persons wishing to engage To open books. mechanics, laborers and apprentices, can enter their names and addresses. To correspond with county officers and keep a registry To cortespond^ of the distribution of immigrants sent into the interior. ivy. ^^^ ^^^^^' To act as the guardian of immigrant orphan children, Act as guar- to bind them as apprentices and to protect them in case of '*'*" °^ orphans necessity. To render accounts quarterly to the financial secretary, to render aa- and to make an annual report of his proceedings for the ly and ?epOTt information of the government and the legislature. annually. To act under such instructions as mav be issued bv 'r° *'^* "'"'^'^ ■ T . -T f 1' 1 1' *^ mstructions. the governor m council irom time to time. 2. The governor in council may authorize the immi- autoOTizetS"^ grant agent to draw^from the treasury such sums as may draw. be necessary to terciporarily provide for and distribute such immigrants as may be sent into this province. 3. "Wherever there are tracts of land suitable for settle- ^?™°}^''',°°5': -I -i-i -I -i n ^ f* -I ' • n Of crown lands ment, it shall be lawful tor the commissioner of crown *» lay off lands nni •j_j,Tij_i . '1. and place at dis- lands, when so instructed by the governor m council, to posai of agent, lay them off' in one hundred acre lots, with convenient roads running through them, and to place them at the disposal of the immigrant agent for actual settlement as hereinafter directed. 4. Whenever such lands are required by industrious ?.™^%y'°'i ...-,. . A, •'- - time for pay- immigrants arriving m this province lor actual settlement, ment allowed, surveys shall be made, and the applicants put into posses- sion and allowed a credit of three years for the purchase money, which, or such portion as under the circumstances the governor shall think fit to direct, shall be expended Purchase under such instructions as the commissioner of crown ^"Jn'roS'a™ ' lands with the approval of the governor shall appoint, in opening such roads as may be required for the forma- tion and improvement of the settlement. 5. The commissioner of crown lands shall furnish the Agent to be.fur- immigrant agent with plans shewing the district ordered pianl.'^rc.*'^ by government to be set apart for settlers with its sub- divisions and roads ; a corresponding plan shall be kept in the crown land office. 6. The agent shall receive applications for land for Agent to re- immigrants, and shall refer the same to the commissioner grantsTreiioa- of crown lands, who shall have the requisite lots surveyed, findJ°and?^fer and the usual entries and report made and decisions of the ^ commission- executive council obtained. The decision shall be com- lands. municated to the immigrant agent with proper plans. 152 IMMIGRANTS. [part I. Chap. Licence of oc- eupation. When to take possession. Purchase mo- ney; how secured. When grant issued. License of, oc- cupation not transferable. Forfeiture of license. Mode of pro ceeding. Licenses re- corded. 7. A license of occupation, with suitable conditions in a form to be approved by the governor in council, shall be executed and given by the immigrant agent to the immi- grant settler. The immigrant shall not take possession until his license of occupation has been issued and deli- vered to him ; and previously or as soon after as possible, the lines of the lot shall be run out, blazed and cornered, under the direction of the commissioner of crown lands. 8. Before delivery of the license of occupation, a bond and warrant.shall be taken from the immigrant settler for the purchase money, payable in three years with interest, half in two years from date, the residue in three years, upon which bond credit shall be allowed for work per- formed on roads in conformity with the instructions. 9. Upon the expiration of three years if the terms shall then- be complied with and the purchase money paid or satisfied, or at any earlier period if the money shall be sooner paid, the settler shall be entitled to apply to the commissioner of crown lands for a grant on the certificate of the agent. 10. The license of occupation or the possession of the immigrant settler or his improvements shall not be trans- ferable or extendable under execution except on the license of the immigrant agent under his hand ; and any attempted transfer by act of the party or under execution shall not convey any title or right except with such license ; but on the death of the immigrant settler his inchoate rights shall descend as personal property, subject to the unperformed conditions. 11. If at the expiration of three years the purchase money shall not be paid in money or in work on roads to the satisfaction of the immigrant agent, or if within the three years the property shall be abandoned and left derelict, it shall be lawful for the immigrant agent, with the sanction of the governor in council previously ob- tained, and after a printed notice posted on the court house and on two other public places in the county where the lands lie that the said lands and all rights of the immigrant therein shall be forfeited unless cause to the contrary be shewn at a place and time therein mentioned, not being less than one month thereafter, to declare in writing under his hand the forfeiture of the lot ; and the possession of the lot shall thereupon revert to and be re- invested in the crown as if inquest of office had been formally found in favor of the crown ; and any person in possession and refusing or neglecting after notice from the immigrant agent to remove shall be subject to be proceeded against and evicted under the chapter of the revised statutes, " of tenancies and of forcible entry and detainer." 12. The immigrant agent shall record in books kept for the purpose all licenses of occupation issued by him, TITLE VIII.] NATURALIZATION OF ALIENS. 1^^ and open an account with each, immigrant settler, and Chap. 34. shall in the first week in January in each year make full returns to the commissioner of crown lands of all licenses ^''^ras. of occupation issued by him. 13. The governor in council may make regulations for Governor in carrying into effect this chapter which as far as shall not make're^ufa- be inconsistent with the provisions of this chapter or of *'™''" law, shall have the same force as if herein enacted. CHAPTER 34. OF THE PRIVILEGES AND NATURALIZATION OF ALIENS. 1. Aliens may take, hold, convey, and transmit real hiw'lnd con- estate, veyrjal estate. 2. No title to real estate shall be invalid on account of ^^||^^ "^"^ '"■ the alienage of any former owner or holder thereof. 3. Nothing in this chapter shall have the effect of con- Yisiol"nlt?e-" firming or rendering valid the title or claim of any alien, ^'"o^P^^t'Te- invalid or incapable of being enforced on account of alienage, on the thirty-first day of March one thousand eight hundred and fifty-four. 4. Every alien who- shall have resided in this province JJj'i^ati'on'^*'" for one year after the twenty-ninth day of April in the year one thousand eight hundred and sixty-two, or who shall at any time thereafter come into this province with intent to settle therein, and shall reside continuously therein for one year, shall upon taking and subscribing the oath of allegiance in manner hereinafter mentioned become within this province a naturalized subject of her majesty, entitled to all the rights of such subject as fully as the same can be conferred under or by virtue of the act of the imperial parliament passed in the tenth and eleventh years of her majesty's reign, entitled " an act for the naturalization of aliens." 5. Such oath shall be taken and subscribed in dupli- oath, hovr cate by such alien, and shall be administered by the clerk of the peace of the county or district within which such alien resides, and the clerk of the peace shall attest the same and shall thereupon deliver to the alien a certificate certificate. under his hand and seal that such oath has been taken, which certificate shall be evidence of its contents, and for which he shall be entitled to receive from such alien one dollar. 20 164 Census and statistics. [part I. Chap. 35. 6. One copy of such oath shall be filed in the office of Oaths, where the clerk of the peace of the county or district within filed. which such alien resides, and the duplicate certified hy such clerk shall bj him be transmitted to be filed in the provincial secretary's office. TITLE IX. CHAPTER 35. OF_THB CENSUS AND STATISTICAL INFORMATION. Board of etatis- 1. Two members of the executive council to be ap- pof^edT "'^ pointed by the governor in council shall, together with the financial secretary for the time being, constitute a board of statistics, and shall have the general supervision of the statistics of the province. Board shall pre- 2. The board shall prepare and cause to be printed and pare forms. circulated, as hereinafter provided, all such forms as to them shall seem best adapted for the purposes of this chapter, and such instructions as they shall deem neces- sary for the guidance of the persons appointed to take the census hereinafter provided for. p($iSfenumera- ^- "^^^ board of Statistics shall appoint enumerators, tors. who, before entering upon the duties of their office, shall be sworn into office before a justice of the peace, who shall administer the oath without charge. merato°3^ ®""' 4. The enumerators shall visit every house within their section and take an account in writing according to the forms to be provided for that purpose by the board of everything specified in the forms. m™fma°nd ^- ^hc enumerators may demand from the head of the answers. family residing within their respective sections or from any member of the family being more than twenty-one years of age, and from the owners and managers of factories and agents of companies, or from others having knowledge of the matters enquired into and not being minors, true answers to all questions necessary for the purpose of taking such accounts ; and any such person who shall not answer or shall wilfully give a false answer to any such question, and also every person who shall in any way wilfully obstruct an enumerator in the execu- *'"' ^" . tion of his duties, shall for every such offence forfeit not less than two nor more than ten dollars. Penalty on enu- ^- . "^^J enumerator who shall uot perform the duties merators. required of him by this chapter shall for every ofience forfeit not less than twenty nor more than forty dollars. TITLE X.] SALARIES AND PENSIONS. 155 7. Any person who shall not comply with the require- Chap. 36. ments of this chapter for any matter for which no punish- where offence ment is herein specially provided shall be guilty of a amisSeano^ misdemeanor. 8. The governor in council shall have power to fix by co°mciimiyfix proclamation, to be published in the royal gazette, the t™e. ; time for taking any future census in this province. 9. The governor in council may frame such regulations ftame°reguia^ as may be uiought necessary for the guidance of the board ^'o^^- of statistics, and may prescribe the forms and proceedings to be used in such census, and shall have such power as may be requisite to carry out the suggestions of the regis- trar general of England in reference to such census or so many of such suggestions as may be deemed suitableto the circumstances of this province. TITLE X. OF CERTAm PUELIC OFFIOEES. CHAPTER 36. OF THE SALARIES OF CERTAIN PUBLIC OFFICERS AND CERTAIN PENSIONS. 1. There shall be allowed to the several officers here- salaries of pub- inafter mentioned, to be paid quarterly out of the public "° officers. funds income and general revenue, the following salaries, to wit : — To the governor, fifteen thousand dollars. To the chief justice, three thousand and two hundred dollars. To the honorable "W". B. Bliss, one of the assistant jus- tices of the supreme court, during his incumbency, three thousand two hundred and fifty dollars. To the other assistant justices now or hereafter to be appointed, two thousand and eight hundred dollars. To the provincial secretary two thousand eight hundred dollars. To the attorney general two thousand dollars. To the solicitor general five hundred dollars. To the receiver general two. thousand four hundred dollars. To the financial secretary two thousand four hundred dollars. To the commissioner of crown lands two thousand dollars. To the commissioner of crown land's first clerk one thousand dollars, 156 SALARIES AND PENSIONS. [part 1. Chap; 36. No fees to judges or pro- vincial aecre- tary. Salaries ; cer- tain officers limited. Salaries charge- able on general revenue. Eetiring pen- sions. When certain pensions to cease. Whenhon. A. Stewart's pen- sion to cease. Travelling ex- pense of Judges. Additional clerks one thousand two hundred dollars. To the receiver general's first clerk and cashier of the savings' bank one thousand dollars. To the financial secretary's first clerk eight hundred dollars To the first clerk of the post office at Halifax seven hundred and fifty dollars. To the second clerk do. five hundred dollars. To the third clerk do. five hundred dollars. To the fourth clerk do. five hundred dollars. To the messenger at Halifax three hundred dollars. 2. The salaries of the chief justice, assistant justices, and provincial secretary, to be without any fees whatsoever. 3. The salaries of the governor, chief justice, assistant justices, provincial secretary, attorney general and solicitor general, are to be continued until eighteen months after the demise of her present majesty ; but the following sums, being in whole or in part of the salaries granted to the different officers by the first section, and made chargeable upon the general revenues of this province, viz : — Governor, ten thousand dollars. The assistant justices, two thousand four hundred dollars, leaving the remainder of such salaries determinable upon the contingency mentioned in this section. 4. There shall be paid quarterly to the several persons hereafter mentioned for their respective lives, out of the pubUc funds income and revenue, the following pensions, viz. :■ — John Gr. Marshall, esquire, twelve hundred dollars. "William Q. Sawers, esquire, twelve hundred dollars. Henry "W. Crawley, esquire, twelve hundred dollars. John Spry Morris, esquire, twelve hundred dollars. The hon. Alexander Stewart, sixteen hundred dollars. 5. The pension to John G-. Marshall, William Q. Sawers, Henry W. Crawley and John Spry Morris, shall cease upon their respectively accepting an office under government of equal or greater value. 6. The pension to the honorable Alexander Stewart shall cease upon his accepting an office under the provin- cial government of equal or greater value to or than the pension hereby allowed to him. 7. The chief justice and assistant justices on circuit shall be severally allowed four dollars and sixty-six cents a day for their travellitig expenses, to commence on the day of leaving their respective homes or places of abode, and to end four days after the adjournment of the court at the termination of the circiiit, title x.] qualincation, etc. of judges. 157 Chap. 37. CHAPTER 37. OF THE QUALIFICATIONS, APPOINTMENT AND TENURE OF OFFICE OF THE PRINCIPAL JUDICIAL OFFICERS. 1. ]^o person shall be appointed a judge of the supreme ^f"?"?°*^''°°^ court unless he shall have been a barrister of the province ° ''" ^''^' for ten years and shall have been practising as such for five years next before such appointment. 2. The judges of the supreme court shall hold no other f^o'^o^thei" 'ffl'*^ office under government except that of judge of the admi- ralty and that of vice president of the court of marriage Exception. and divorce. 3. The judges of the supreme court shall hold their Tenure of office offices during good behaviour notwithstanding the demise of her majesty. 4. It may be lawful for the governor to remove any Removal, how judge of the. supreme court upon the address of the legis- ''"'®'^'°'^- lative council and house of assembly, and in case any judge so removed shall think himself aggrieved thereby it shall be lawful for him within six months to appeal to her majesty in her privy council, and sUch amotion shall not be final until determined by her majesty in her privy council. 5. When any judge of the supreme court shall die or Appointment of resign his office, or be removed in the manner authorized J^'^ses. by the preceding section, it shall be lawful for the gover- nor to appoint by commsssion under the great seal of this province some fit and proper person to hold the said office until the royal pleasure shall be made known, and such appointment shall be held to be superseded by the issuing of a commission under the great seal of this province to the same person or such other person as her majesty shall appoint in the place of any judge who has died or resigned or been removed by the manner authorized by the prece- ding section, or by signification within the province of the royal decision in the privy council restoring to his office any judge who may have been so removed. CHAPTER 38. OP THE OFFICES OF RECEIVER GENERAL AND FINANCIAL SECRETARY AND THE RENDERING AND AUDIT OF THE PUB- LIC ACCOUNTS. 1. The receiver general shall give bond in sixteen Receiver gene- thousand dollars, with four sureties in four thousand dol- ten're'of offic^ lars each, for the faithful discharge of his duties, and shall hold oMce during pleasure. bonds, 158 EECBIVER GBNEEAL, FINANCIAL SECRETARY. [PART I. Chap. 38. 2. He shall have a principal clerk to assist him in the Clerk, his duty, husincss of Ms office who shall be the cashier of the bonds. savings bank, and shall give bond in four thousand dollars, with two sureties in two thousand dollars each, for the faithful discharge of his duties. Financial se- 3. The financial secretary shall give bond in eight and tenure°Sf thousaud dollars, with two sureties of four thousand dol- °^''°' lars each, for the faithful discharge of his duties, and shall hold office during pleasure. Clerk, his duty, 4. He shall havc a principal clerk to assist him in the business of his office who shall give bond in four thousand dollars, with two sureties in two thousand dollars each, for the faithful discharge of his duties. Reeeiyer Gene- 5. The rcceivcr general and financial secretary shall be cfarstcretifi^ members of the provincial administration for the time members of ad- T-.^; « «. ministration. uemg. Eeoeiver Gene ^- The rccciver general shall receive and on the war- rai's duties. j-ant of the govemor pay all public monies ; and it shall be competent for the governor in council t(J direct from time to time which of the public accounts shall be filed in his office, and in what form the books to be opened thereat shall be kept; but one general cash book shall be kept by him, in which there shall be entered from day to day all monies received and paid, with the names of the parties who received or paid the same, and which book shall be open at all times to the inspection of the members of the executive government or of any member of the legislature. rat°mlnage™f' "^ ■ ^hc rccciver general shall manage or superintend treasury notes, the trcasury notcs, the funded debt, and the savinsrs bank, lunaed aebt, i f*, ' -i -t /• ^ ' and savings' as hereafter provided lor. Ftaanciaise- ^- It shall be the duty of the financial secretary to cretary's duties examine and check from time to time as they shall come in all accounts of public receipts and expenditures of every kind and description. The accounts of the revenue officers and collectors of light duty at Halifax and in the outports shall regularly pass under his supervision, and any error or mistake therein be immediately pointed out and rectified, and the attention of the governor in council, if necessary, directed thereto; and no account of any public expenditure whatsoever for road work, public build- ings, light houses, education, or otherwise, shall be paid by the receiver general until the same shall have been carefully examined and certified to be correct, or any mistake or error therein pointed out and rectified by the financial secretary, or in case of his absence or indis- position by his principal clerk. Warrants ;how 9. Such accounts, SO examined and certified under the '^''™' hand of the financial secretarj^, or in case of his absence or indisposition under the hand of his principal clerk, shall be necessary vouchers previous to the issue of a warrant for the payment of the sums therein expressed, TtTLfi XI.] *BEASubY NOTfeS, ETC. l5^ or for the payment thereof under any general warrant Chap. 39. previously issued therefor. 10. The principal revenue officer at Halifax and the Quarterly ao- ^ T \ TT n • ^ ,1 j_ J? Ti counts render- receiver general shall lurmsh quarterly accounts oi all ed to financial: Slims received and paid by them respectively, and to be ex- pre^lS to "^ amined and checked by the financial secretary ; and such n„aii?|''^ """ quarterly accounts shall be collected and formed into one general account, to be presented by the principal revenue officer and the receiver general to the general assembly in every year within the first ten days in each session, and to be examined and audited by a joint committee drawn from the legislative council and house of assembly as hereto- fore. 11. It shall be competent for the governor in council |i°e^Xections to direct from time to time which of the public accounts j[^g^™o^^'og shall be filed in the offi.ce of the financial secretary and in what form the books to be opened thereat shall be kept, and also from time to time on the report of the financial secretary to issue such orders for the more economical expending of the public monies, by the taking of contracts after due advertisement, or by such other guards and pro- visions as may appear most judicious for the checking of any abuse and the more vigilant and faithful husbanding of the public monies. TITLE XI. OHAPTEE 39. OF TREASURY NOTES, THE SAVINOS' BANK, AND PROVINCIAL LOAN. 1. The governor in council shall appoint three com- commissioners of treasury ap- notes missioners of treasury notes, who shall hold office during Sotelfhiw pleasure and be sworn before a judge of the supreme court po™*^'^- to the faithful discharge of their duties ; any vacancy to be filled up by a similar appointment. 2. , Treasury notes issued after the passing of this chap- ^'^y jf/^^^ ter may be expressed to be payable in dollars. ijressed in doi- 3. The denomination of such notes and their form Denomination shall be fixed by the governor in council, but no note shall ^^^'^ ^y '^°^<"^'- issue for a smaller sum than four dollars ; and all impres- ^^'^^ ^^^^ ^^^^ eions taken from the plate now in the custody of the four dollars. provincial secretary shall be securely kept in his office 1™^^'^^^™^ till required by the commissioners or any two of them at quired. the instance of the governor in council. 4. The commissioners shall from time to time deliver °l^^^l^^^ ^^^ to the receiver general as many new treasury notes -as 160 TREASURY NOTES, ETC. [PART I. Chap. 39. may be required to replace the old, and sucli new notes shall he immediately signed by the receiver general. ralTopty WOT-" ^- The receiver general shall pay all warrants in gold sfivOTOT teea' ^^^ silvcr, if in the treasury, or in treasury notes, which sury notes. notcs shall he again received at the treasury and in pay- in^aymeVtlt meut of dutics at the specified value. T°''°^ , 6. Treasury notes when torn or defaced shall he lodged notes-hoVdL in the provincial secretary's office in sealed packets and posed of. replaced by new notes. lowmlMg°ed7 "^^ The receiver general shall superintend the savings' bank, and shall see that the same is conducted by the cashier in accordance with instructions issued by the governor in council. The receiver general shall personally superintend the weekly payments and receipts of the cashier, and shall examine his accounts and vouchers every month, and certify them to be correct ; and the cashiex. shall prepare at the end of every year a full abstSISt of the accounts and proceedings and a report of the state of the bank, to be certified by the receiver general and laid before the legislature. pa1^°interest!'^ ^- Depositors in the bank shall be paid four per cent, interes the amount to be received from any one person to be fixed by the governor in council, and naonies depo- sited under this chapter shall be applied by the governor in council from time to time for such uses as shall have been approved of and sanctioned by the general assembly, p^fts'i'imited' The amount of deposits in the bank shall not exceed nine hundred thousand dollars. opJneash™o-^ 9- The govemor may cause a cash account to be rld'bor^w"^* opened at one or more of the banks in the city of Halifax, money. and may borrow and receive from such banks such sums of money as may be necessary for the use of the province, in such amounts as may from time to time be required, under such conditions and upon such terms, stipulations and agreements for the payment and re-payment of such monies and for the management of such accounts, as by the governor in council may be established, prescribed and directed, with the consent of the directors of the May borrow bank: or otherwise may borrow and receive from any from other per- ,, ' ,• t • , ,•' sons,&o. other persons, corporations, and companies a sum not to Amount limi- excecd ouc hundred and twenty thousand dollars, at the *^'^" . lowest interest at which. such loan can be effected. Sn.'~^°*^ 10. The money may be drawn for and received froto time to time in such sums and under such restrictions and regulations as may be prescribed by the governor in council, with the consent of the lenders thereof. 4o.''piedged to 11- I'or the repayment of all monies borrowed under repayment. ^]^^g chapter, and for the final payment and discharge of the balance which shall be remaining due and unpaid on the final closing of such accounts with such lender, with interest, the public funds, tnonies and credits of this province, are hereby pledged and rendered liable* TITLE XII.] COUNTIES — COUNTY OFFICERS. 161 12. An account of all sums borrowed or repaid under Chap. 40. this chapter, with the date of the loans and repayments Account and respectively, shall be laid before the joint committee of the [am^blfora" *"* legislature appointed to examine the public accounts, legislature. together with the drafts and vouchers relating to the same, at each session. TITLE XII. OF COUNTIES AND COUNTY OFFICERS. CHAPTER 40. OF THE BOUNDARIES OF COUNTIES, DISTRICTS AND TOWNSHIPS. 1. The boundary lines of counties, districts and town- Boundary iin»s ships,, are confirmed as at present established. confirmed. 2. Whenever it shall be made satisfactorily to appear "Wh«n lines un- C6rt£iiii cov6r~ to the governor in council that the lines and bounds of any nor may order county, district or township, are uncertain and require to ^"'^®5'- be run out, or where the traces of such lines or bounds have disappeared, and it shall be necessary to establish the same anew, it shall be lawful for the governor in council to authorize the commissioner of crown lands to appoint a surveyor to perform the said work, and to set up perma- nent marks and boundaries upon said lines. 3. Before such surveyor shall proceed to perform that Notice to custoa duty, notice shall be given by the commissioner of crown yey.^^ °'* ^"" lands or the surveyor to the custos of each county or district, and at any general or special sessions thereafter to be holden, such sessions shall nominate one or more per- sessions, duty sons to represent the interests of such county, district or °^' township lines, and the fixing the necessary marks and bounds thereof, who shall make and return a plan thereof. 4. The cost of such survey shall be paid out of the cost of survey, proceeds of the crown lands. ^"^ ^* 5. The expenses of the nominees for each countv, Expense of district and township, shall be a county charge. county charge. 6. The award of the majority shall decide the line, and Lmehowds" in case of no majority, the same shall be decided by the commissioner of crown lands. 21 162 Chap. 41. CORONERS. OHAPTEE 41. [part I. OP coroners, Coroners, how appointed and sworn. Inquisitiong, when and how returned. Clerk of crown to file without fee and give certificate. Juries, how summoned. Inquisitions" may be held on Sunday. Fee for inquisi- tion, how drawn and appropri- ated. Fee for medical men. Travelling fees. No charge un- less witness '_ called by jury. To include post mortem exami- nation. Certificate of coroner neces- sary. Extra charges, how defrayed. If grand jury neglect to pre- sent, justices may amerce. Appeal. Justice may act instead of coro- ner. Eeturns to Pro- vincial Secre- tary. 1. Coroners may be appointed by the governor in council and shall be sworn into office before a judge of the supreme court or the custos of the county. 2. Coroners shall return their inquisitions to the clerk of the crown for the county at or before the then next sittings of the supreme court. The clerk shall file the same without fee and give the coroner a certificate con- taining the date of the inquisition and the date of the filing of the same. 3. Coroners shall either personally or by a constable furnished by them with a precept summon a jury of the inhabitants of the county to attend inquisitions when requisite at a time and place appointed, and if necessary may hold inquest on a Sunday. 4. Upon the certificate of such clerk of the crown being filed with the provincial secretary, the governor may draw a warrant on the receiver general in favor of the coronor for ten dollars in full for each inquisition, two dollars and forty cents thereof to be paid to the jury and fifty cents to the constable for their fees. 5. Medical men examined before a coroner's jury shall be entitled to five dollars each, to be paid by the county, together with travelling fees, at the rate of five cents per mile ; but no such charge shall be made unless the witness shall be called by the direction of a majority of the jury, and such charge shall include a postmortem examination if made. Before any claim on a county for such charges shall be allowed, a certificate from the coroner that such examination was required by a majority of the jury shall be produced. 6. If there be any further necessary or extraordinary charge on an inquest or burial besides those mentioned in the preceding sections of this chapter they shall be defrayed by the county. 7. If any grand jury neglect or refuse to make a pre- sentment for the amount of expense so incurred, the justices in session shall amerce the county for any sum which may appear to them necessary to be raised for that purpose. 8. Any person aggrieved by the assessment may appeal as in case of ordinary county rates. 9. In the absence of the coroner an inquisition may be held before a justice who shall be entitled in such case to the same fees as a coroner. 10. Coroners shall return lists in triplicate of the inquests held by them, together with the findings of the TITLE XII.] CLERKS OF THE PEACE, 163 juries, to the office of the provincial secretarj'-, on or Chap. 42. before the tenth day of January in every year, under a penalty for penalty of twenty dollars. negieet. CHAPTER 42. OF OLEBKS OF THE PEACE. 1. Clerks of the peace shall be appointed by the custos hlfwappointod^' of the county or district during pleasure, and shall be andswom. sworn into office by the custos or a judge of the supreme court. 2. Upon the vote of a majority of the sessions the ^^^'ed'for and office of the clerk of the peace shall become vacant ; and how fiUed. in case of any vacancy upon the neglect or refusal of the custos to make such appointment within one month after such vacancy shall have happened, the governor in council shall appoint ; but clerks of the peace shall continue to D^ation of T IT jv. 'IT- • , 1 office, hold office u,ntil tneir successors are appointed. 3. Every clerk of the peace shall cause to be engrossed ^^^^^"fg™^^!' in a book kept for that purpose only and properly indexed sessions, &c. all rules, regulations and orders of the sessions in force or such as may be made, with their dates respectively, which book, together with all other papers and records of the sessions, shall be open for inspection at all reasonable times. 4. Every clerk of the peace shall annually, on or ?*'*"P^,*9 ,-, before the tenth day of January, return in triplicate to the ticl^ board of statistics a list of all convictions had, and of all fines and penalties imposed by the sessions, the amount of fines and penalties collected and how appropriated, with the names of all offenders, under a penalty of twenty Penalty for dollars. '^^^'^'''■ 5. 1^0 clerk of the peace shall receive any fee for the f^^efsrof u-^^* duties of office except in cases of licenses only. cense. 6. The clerks of the peace in the several counties or May appoint -,. . . , - p T ■ deputies. districts with the consent of the custos, may appoint deputies to act for them in case of sickness or temporary absence, for whose conduct the iprincipal shall be respon- sible ; and all deputies so appointed shall have the same powers vested in them for the time being as by law are vested in the principal, and their acts shall be equally valid. 164 Chap. 43. PROTHONOTARIES — CLEEKS OF CEOWN. [PAKX I. CHAPTER 43. Appointments, Jlow made. Prothonotaries to make return of fees on oath. Prothonotaries Ac. to give bonds. Country pro- thonotanes to act as clerks of the crown. J. W. Nutting's salary, how paid. OF PROTHONOTARIES AND CLERKS OF THE CROWN. 1. The governor in council shall appoint and commis- sion one person to be prothonotary of the supreme court and clerk of the crown in every county as vacancies shall occur. 2. The prothonotaries shall, on or before the first day of February in every year, make a return under oath into the receiver general's office of the fees received by them. 3. The prothonotaries and clerks of the crown, to be appointed as aforesaid, shall give bonds in such sums and with such securities as may be directed by the governor in council, conditioned for the performance of the duties of their office. 4. The prothonotaries throughout the province shall issue subpoenas in crown cases and perform all such other duties as may appertain to the office of clerks of the crown. 5. If the fees and emoluments of James "W". Nutting, Esquire, the present prothonotary and clerk of the crown at Halifax, do not amount in any one year to the sum of two thousand four hundred dollars, the deficiency shall be paid to him out of the treasury. OHAPTEE 44. OF GENERAL AND SPECIAL SESSIONS. Halifax ses- sions, when held. Grand jury to attend. Other counties when held. 1. The general sessions of the peace for the county of Halifax shall be held on the first Tuesdays of March, June, September and December, respectively, ' and the grand jury are required to give their attendance thereat. 2. The general sessions of the peace in the other counties shall be held as follows : For Colchester, on the second Tuesday of January. Cumberland, on the first Tuesday of January. Pictou, on the first Tuesday of February and first Tues- day of July. Hants : West Hants, at "Windsor on the first Tuesday of October ; Bast Hants, at Gore on the second Tuesday of October. Kings, on the last Tuesday of April and last Tuesday of October. TITLE XII.] aENERAL AND SPECIAL SESSIONS. 165 Annapolis, on the third Tuesday of April and last Tues- Chap. 44. day of October. Digby : at Digby on the first Tuesday of November ; Clare, at the sessions bouse at Clare on the last Tuesday of April. Lunenburg, on tbe second Tuesday of January, and at Chester on the third Tuesday of January. Queens, on the second Tuesday of January. . Shelburne : at Shelburne on the second Tuesday of January and first Monday of June ; at Bai;rington on the Monday next after the fourth Tuesday of April. Yarmouth : at Yarmouth on the third Tuesday of Sep- tember ; at Tusket Village on the last Tuesday of April. Antigonish, on the second Tuesday of January. Guysborough : at Guysborough on the third Tuesday of January and first Tuesday of May ; at Sherbrooke, St. Mary's, on the first Tuesday of December. Cape Breton, on the first Tuesday of March and second Tuesday of July. Victoria, on the third Tuesday of March and third Tuesday of September. Inverness, on the first Tuesday of October. Richmond, on the second Tuesday of January. 3. In counties or districts where two terms are held the ^Jfen^o attend. grand jury shall attend only at the fall or winter term. In all^counties or districts where there is a single session for the year the grand jury shall attend. 4. The general sessions may be kept Open ih the Duration of sit- county of Halifax for fourteen days, but in other counties j*ou?nments*' or districts for not more than ten days, and they may be adjourned from time to time during term as occasion may require. 5. Bills of indictment may be preferred, found and indictments tried, and judgment thereon given, in the general sessions M^trfed°in of the peace for the county of Halifax, as heretofore, and ^on?^ ^^^' persons convicted thereat may be sentenced to confine- ment in the county jail in the same manner as if tried and sentenced in the siipreme court. 6. When a question of law shall arise, and the sessions cases may be desire the opinion of the supreme court thereon, the clerk fup?eme court of the peace may be ordered to prepare a case, to be signed by the custos or the presiding justice, which may be filed and entered by either party interested therein, or by the clerk of the peace with the prothonotary, for argument at the next sitting of the, supreme court in the county. 7. The presiding judge may order the case to be sent Amendments back to be'amended if he shall see fit, he may hear and privwed f™. determine the same, or he may, if he think the matter more fit for the determination of the whole court, grant a rule nisi, returnable at Halifax, to be argued and disposed of as other rules are. The judgment of the supreme court, 166 COUNTY ASSESSMENTS. [PAKT I. Chap. 45. whether in the country or at Halifax, shall be embodied in a rule and returned to the court of sessions by the protho- notary, and shall be final. spooiivi ses- 8. The custos of his own authority may, and upon the sioiiB now c&li- . • sd; Whatbusi- Written rcquisitiou of three justices, specifymg the parti- ness transacted ^^^^j. objects thereof, shall call special sessions tor the transaction of any business which may be legally trans- acted thereat, and he shall in all cases direct the clerk of the peace to convene the same, giving him at the same time the necessary information as to the objects thereof, and the clerk of the peace shall forthwith post up adver- tisements in at least five of the most public places in the township or settlement interested in the business to bo transacted at such sessions, and if there shall be any business affecting the interests of the county or district generally, then advertisements shall be posted in at least three of the most public places of each township of such county or district, and all such advertisements shall be posted up at least five days before the meeting of the sessions, and shall mention the particular business to be transacted thereat, and a copy of the notice shall be filed by the clerk of the peace, and no business shall be trans- acted at such sessions other than that contained in the advertisement. In case of the absence from the county or illness of the custos, any three justices may direct the clerk of the peace to call such special sessions. Number of jus- 9_ Evcrv Special session, unless otherwise prescribed, tices necessary; nna ■} r* n •• tt it records to be shall TIC composcd ot fivc or morc lustices, and the clerk made and filed. ^ ,^ • i • ^ jii , i t ot the peace, or m his absence, a fit person to be named by the justices present, shall attend and make a record of such sessioi^ and of all proceedings had thereat, to be filed in the ofiice of the clerk of the peace. OHAPTEE 45. OF COUNTY ASSESSMENTS. County trea- 1. The grand jury shall annually at the general session pointed"''''''' prcscnt the uames of three pcrsous bciug resident in the county, neither of whom shall be the custos of the county, one of whom shall be appointed by the court treasurer for the county, who shall give bond to her majesty, with sureties to be apj)roved of by the custos, in a sum to be named by the sessions for the performance of the duties of his office and shall be sworn into office ; and such treasurer shall continue to hold office until a successor be appointed. saiaiy. The Salary of the county treasurer may be fixed by the TITLE XII.J COUNTY ASSESSMENTS. 167 grand jury and sessions. In case no provision is made Chap. 45. therefor lie shall be allowed one and a-half per cent on all monies received by him for railway damages, and five per cent on other monies. 2. The county treasurers in the several counties and Treasurei^s districts may with the consent of the custos appoint by d'e'^^ti^s?"''' writing under their hands, filed in the office of the clerk of the peace, deputies to act for them in case of sickness or temporary absence, for whose conduct the principal and his sureties shall be responsible ; and the deputies so appointed shall have the same powers vested in them for the time being as by law are vested in the principal, and their acts shall be equally valid. 3. In case of the death of a countv treasurer a special incase of death > 1 J X. how TftCftncy sessions shall be convened according to law, wherein a supplied, treasurer shall be appointed for the time being, or until a county treasurer shall be appointed as provided by the ■ first section ; and the teinporary treasurer so appointed at such special sessions shall give bonds in the manner required by such first section. 4. The grand jury on their own knowledge, the recom- Pi-esentmenta mendation of the court, or the representation of three or prafs"*"^* ^"'^" more freeholders of such county, shall present any ^ms of money necessary in their judgment for any public purpose within the county, the same to be confirmed by the sessions ; and they may include for their own remu- Kemuneration. neration, while actually attending the court of sessions and the supreme court, such sum as they may judge necessary, so as the same shall not exceed fifty cents per day for each juror actually attending, and ten cents per mile travelling expenses — the distance to be computed from the residence of the juror to the place where the court is held. 5. Upon the petition of twenty rate-payers of any town- fo'jffoJ'aUnd' ship or place certified to be such by a justice of the peace, special purpo the grand jury may present any sums necessary for the ''''^' erection or repairs of lock-up-houses and the payment of keepers thereof, for the purchase, the erection, hiring, or repairing of market or town houses, for the providing of hay scales, weights and appurtenances, for sets of weights and scales, and for measures, long, liquid and dry, for any township or place, and such sums when confirmed by the sessions, shall be added to the apportioned assessment upon such township or place and assessed and levied ex- clusively thereon. The sessions may make regulations for the use and management of such buildings and public property and may appoint keepers thereof. The sessions may make an order for distributing over P?wer to di»- any period not exceeding four years, any amount presented for assessment under the next preceding section or any sum presented for building or repairing a court house or 168 COUNTY ASSESSMENTS. [PART I. Chap. 45. jail for the county or district, and may appoint commis- sioners for expending tlie same and may authorize sueli commissioners to borrow such amount on the most favor- able terms, and any money borrowed under this chapter shall be a county or district charge and bear interest till paid. tece?Sfn^ur- ^- ^^ ^^J grand jury neglect or refuse to make a poses-when presentment when necessary for any of the following pur- grand jifry may ^ j_i i • _l j» j_t t -i t • • • • i neglect. poscs, that 18 to Say, for the bijilding or repairmg a jail or the appurtenances thereof, a court house or sessions house, and for fuel for the use of the same ; for the erecting and repairing pounds and providing bolts, bars and shackles, and also for conveying persons accused of crimes to jail, when the distance shall be three miles or upwards, at a rate not over ten cents per mile ; for the decent support, of poor criminals or poor debtors in jail ; for the salary to the treasurer of the county, for a salary to the clerk of the peace of not less than eighty dollars, for the maintenance' of a jailor, for the paying of criers for the several courts, for defraying the expenses of poor witnesses on the trial of persons accused of any criminal offence, for defraying the charges of public executions and of conveying crimi- nals under sentence to their place of confinement ; for de- fraying the expenses of persons sentenced to confinement ■ and labor within the county and procuring materials for such labor ; for paying extraordinary expenses ordered by the sessions to constables and incurred in execution of their duty in cases of riot or felony ; for paying allowances to special constables ordered by the sessions about execut- ing or assisting or trying to execute warrants for felony or misdemeanor; for expenses incurred or necessary to be raised about repairing bridges within the county ; for expenses incurred about removing county rates by cer- tiorari or otherwise, or in prosecuting or defending any action or proceeding at law respecting such county affairs, the justices in session shall amerce the county for any sum Avhich may appear to them necessary to be raised for that purpose. Assessors and 7. "WTicu any presentment shall be made the grand Sppofnted. ^""^ jury shall furnish to the court the names of such number of persons of the county as the court shall direct to be "« assessors and collectors respectively for the several town- ships and places in such county; and the court shall appoint not less than half the persons named ; and collec- tors shall be required, to give security to the amount of the rate bills placed in their hands for collection. Appointmentin 8. In CaSe of amCrCCment where no assessors or col- amercement, lectors shall have been appointed the sessions shall appoint the necessary number, being persons resident within the county. TITLE XII.] COUNTY ASSESSMENTS. 169 9. The clerk of the peace for the county shall in all Chap. 45. cases notify the assessors and collectors of their appoint- Assessors to be ment, and they shall be sworn into office. notified. 10. Assessors shall return with the assessment roll a Return of time statement of the time spent by them in such duties, and ^^^ "jompensa- such compensation for their services not to exceed one dollar per day for each assessor, as shall be presented by the grand jury and confirmed by the court of sessions, shall be a county charge and be added to the amount to be assessed upon the county. 11. In case any assessor when appointed as autho- vacancy, how rized by law neglects or refuses to act, his place may be ^"p^'® ■ supplied by another, to be appointed at a special sessions to be convened as soon as practicable after such neglect or refusal shall become known to the'custos or clerk of the peace. 12. If in consequence of the neglect or refusal to act ^^™uppu^'J- of any assessor the assessment shall not be proceeded with assessment, within the period prescribed . in this chapter, the same TdvatS™"" ' shall be proceeded with within one month after the appointment made under the preceding section shall be notified to the party appointed. 13. Any assessor neglecting or refusing to be sworn Penalty for re- into office, or to perform any of the duties belonging to ^i^^^' *■""='' his office, shall forfeit eighty dollars, to be recovered in the same manner as a private debt before any two justices of the peace, and sued for by the clerk of the peace, and the amount when recovered shall be added to the funds of the county. 14. For all purposes for which local and direct taxes What real and are and shall be levied by authority of law, unless other- FiaWe'to tax-*'" wise specially provided for by law, all land and all such *''°"' personal property as is hereinafter defined, whether owned by individuals, co-partners or corporations, shall be liable . to taxation, subject to the exceptions hereinafter specified, and the occupant of any crown land shall be liable to taxation for the land so occupied, but such land shall not be chargeable for the same. 15. The words "personal estate" and "personal pro- Definition of perty" when they occur in this chapter, shall be under- tate"and'"^per- atood to include all such goods, chattels and other property ^onai property" as are enumerated in schedule A, hereto annexed, and no other; and the term "property" shall include both real and personal property. 16. The following property shall be exempted from Exemptions, taxation, viz.: first, lands belonging to her majesty or held in trust for her majesty for the public uses of the province ; secondly, every place of worship, every church yard or burial ground, the real estate of eVel*y college^ ^ academy, ol' other seminary of learning, every public school house, town hall, court house, lockup hoUae, tem= 22 170 ■ COUNTY ASSESSMENTS. [PAET I. Chap. 45. perance hall, all public landings, public breakwaters and public wharves, all school lands and the property of every township or town, city or county, if occupied for the pur- poses thereof, or if unoccupied ; thirdly, the provincial peni- tentiary and the land attached thereto, the provincial lunatic asylum and the land attached thereto, the provincial rail- way, rolling stock, and railway stations and lands attached thereto or to the railway ; fourthly, lands belonging to any widow, or minor, or school teacher, when of less value than four hundred dollars; fifthly, funds invested in provincial debentures. ■^ortioi^' and '^^ ' One-fourth and no more of all local and direct upon whom, taxes shall be levied and assessed by an equal rate as a poll tax on all male persons living within the district of the age of twenty-one years and not being paupers, and the other three-fourths shall be levied and assessed upon the whole taxable real and personal property of the locality, to be taxed in proportion to the assessed value thereof and not upon any one or more kinds or species of property in particular ; provided such poU.tax shall not exceed the sum of thirty cents on any"individual. Assessment roll ig. In making: up the assessment roll the assessors ruiGS lor. ^ ■*■ shall be governed by the following rules : Districts. j_ rpj^g asscssors iu making up the assessment roll shall follow the divisions of electoral district and shall arrange separately in alphabetical order the names of the rateable inhabitants of each electoral district. as°sess''lbte'' pro- H- WliCrc the owncr or occupier is resident within the dlnte"^'^'^^'' county the assessors for the district within which he resides shall include in the roll the whole of his assessable pro- perty. When in differ- III. If such property be situatc in diflfereut districts of OTit districts. the county, it shall be so discriminated in the assessment roll as to shew for what amount he is assessable in each district. Non-residents. jy. "Where the owncr or occupier is not resident with- in the county or is unknown and the lands are unoccupied, the lands shall be assessed as lands of non-residents in each separate district in which they lie. Tenants. Y. Where the owner of lands which are occupied by another party as tenant for any period less than one year resides within the county, the lands shall be estimated as property of the owner saving his recourse against the occupier ; and where the owner of the lands is not resi- dent within the county they shall be estimated as the property of the occupier. to'^l°y°t^ob"^^'* ^^- ^^ making up the assessment roll the assessors omitted. shall uot be required to enter upon' it the name of any * person whom the assessors shall deem to be unable to pay the rate. TITLE Xn.] COUNTY ASSESSMENTS. . - 171 19. Between the first day of November and the first Chap. 45. day of December in each year, the assessors appointed by Time in which the grand jury and court of sessions for each township or trbfmade™" district shall proceed to ascertain by diligent enquiry the names of all the taxable inhabitants, and also all taxable property within the same, its extent, amount and nature. They shall then prepare an assessment roll, in which shall be set down in separate columns and according to the best information in their power, the names of all taxable parties in the township or district, with the extent or amount of property assessable against each under the pro- visions of this chapter and containing the particulars mentioned in schedule B, for each of the items of which the assessment roll shall contain a separate column. 20. The lands of non-residents shall be designated in Lands of non- the assessment roll, but in a separate part of it under the head of " assessment roll of non-resident lands," and shall contain the several particulars specified in that part of schedule B which refers to such lands. - 21. All real and personal property liable to taxation vaiue of pro- shall be estimated by the assessors at its full value, in the ^^atJd!*"^ ^^''" same manner in which they would appraise the same in payment of a debt due from a solvent debtor. 22. The assessors shall complete the rolls on or before completion of the tenth day of January in each year, and they or a ''""■ majority of them shall forthwith thereafter sign the same, first attaching thereto a certifiate in the following form : — ""We do severally certify that we have set out in the certificate. above assessment roll all the real and personal property within the county owned or occupied by persons residing within our district, and all the real and personal property within our district owned or occupied by persons not residing within the county liable to taxation within our district, and the actual value thereof in each case, accord- ing to our best information and judgment. We further certify that we have in such roll set down the names of all the inhabitants within such district subject to a poll tax." 23. The roll thus certified shall be forthwith forwarded ?°i;,yA';°„iri. -^^ warded to cleric to the clerk of the peace for the county, and a true copy of peace and thereof, similarly certified to be made by the assessors, ^°^ ^ ' shall be forthwith posted up by them in some public and conspicuous place within the township or district for which they are assesssors, for the information of all parties con- cerned. 24. From such roll the Gouijty rates and poor rates county rates. shall be made as follows ; I. Any party residing within the county shall be taxed Residents. for his county rate in one sum, which shall be collected by the collector of the district where he resides. H. Such party shall be taxed for his poor rate in each Poor rates, district where Jiis tg^^able property lies, and the same shall 172 COUNTY ASSESSMENTS. [part I, Chap. 45. Npn-residents. Clerk of peace to make out county rates. Assessors to fur- nish clei-K or poor distriot copy of roll. Assessment roll To be delivered to collectors by clerk of the peace. Collectors roUJ of poor rates. Collectors when chosen. Eemuneration. Duty of collec- tors. Non-resident owners. be collected by the several collectors of the poor rates in the several districts. III. "Where the party taxable is a non-resident or un- known his property shall be taxable for both poor and county rates in the district where such property lies. 25. The clerk of the peace shall, on or before the first day of April in every j'ear, make out from such roll the county rate for each township or district containing the particulars mentioned in schedule C or other particulars to the like effect. 26. The assessors shall furnish to the clerks of the poor district within their limits a ce.rtified copy of the roll forwarded by them to the clerk of the peace for the county, and within thirty days after the receipt thereof the clerk of the poor district shall make out the poor rate for his district, containing the same particulars as the county rate collectors roll, making allowance for necessary differences, and place the same in the hands of the collectors. 27. On the assessment roll, whether of county or poor rates, shall be set down the name of each party assessed, the amount of his poll tax, the correct assessed value of the real and personal property of each party for which such party is taxable ; and there shall also be put down on such roll the true valuation of the lands of non-residents opposite to the names of such non-residents, and also the amount chargeable upon such lands. 28. The clerk of the peace shall deliver the roll so to be made by him to the collectors appointed by the court and jury for each township or district. 29. The town clerk or clerk of the poor district shall deliver the collector's roll of poor rates so to be made by ■him to the collectors, who shall be appointed as hereinafter mentioned. 30. At any semi-annual meeting held by law for the support of the poor, under the chapter of the revised statutes on that subject, the inhabitants shall choose so many collectors as they may deem necessary to collect the poor rates for the district or township within which such meeting shall be holden, and. shall also choose a clerk, to be called the clerk of such poor district, who shall act as clerk to the overseers of the poor for the district ; and such inhabitants shall award to their clerk a reasonable remuneration, to be fixed at such meeting and added to the amount to be assessed on the district. 31. It shall be the duty of the collector of either poor or county rates to receive the taxes assessed upon the pro- perty of non-residents if the same be rendered within the time of his collection. 82. As regards the lands of non-resident owners named in the collector's roll, it shall be the duty of such collector, where^ the owner is knpwn to i^iin, to transmit by post a TITLE XII.] COUNTY ASSESSMENTS. . 173 a statement and demand of the charges taxed against him Chap. 45. in the roll. 33. If the taxes be not paid within twenty days there- unpaid taies- after the collector may apply to two justices of the peace, JSu™!**' ^'"^^"^ and upon affidavit being made of such statement and demand having been duly mailed by the collector and that the taxes are unpaid, and upon their being satisfied that there can be found on the lands sufficient timber, wood, poles, or other materials, to defray such taxes and ex- penses, such justices shall issue a warrant, authorizing the collector to sell so much of such timber, wood, poles, or other materials, as may be necessary to pay such taxes and expenses. 34. Where the owner is unknown to the collector unknown affidavit of that fact shall supersede the necessity of the °^"'"^- affidavit of mailing a notice and demand, and in such case the warrant shall issue as provided in last section. 35. If the justices on application of the collector shall perfyj^gHcrto be satisfied that no timber, wood, poles or other materials certify. can be found on the land sufficient to satisfy the warrant, they shall give him a certificate to that eff'ect, which shall be his authority for taking no further steps to collect the rate to which such certificate applies. 36. It shall be the duty of the collector to levy any Levy of war- warrant issued by such two justices by selling so much of ™°'''' the timber, wood, poles or other materials on the land as will be sufficient to pay the amount of such rates and the expenses connected therewith ; and in making such sale he shall sell only so much and such part thereo^^as shall be sufficient to satisfy such rates and the expenses con- nected therewith — first selling such part thereof as he shall consider most for the advantage of the owner of the land to have sold. 37. A purchaser under such sale shaU be entitled to a Purchaserright right of entry upon the lands to remove the timber, wood, °^^^^'^y- poles or other materials purchased by him at any time within one year after the sale ; and to any other incident that may be necessary to render his right available to him, but shall have no further right, privilege or easement whatever in respect thereof 38. The collector shall give public notice of the day of notf~P"™'^ the sale, of the description of the property, and (when known) the name of the owner and the amount of taxes rated on the property, which notice shall be given at least ten days previously to the sale, by handbills posted up in at least five public places in the township near to the lands in question, and the sale shall be made at public auction. 39. If the amount realized by such sale shall be greater surplus money, than the amount due for the taxes and expenses and tlie *° whom paid- costs of such sale (the same being regulated by the amount paid on constable's sales, under executions issued from 174 COUNTY ASSESSMENTS. [PART I. Chap. 45. justices), the surplus shall be paid over to the county treasurer, who shall enter the same as surplus funds in the book to be kept by him as hereinafter mentioned. retuSed,*when 40. In casc the collector shall be unable under such *=■ ' warrant to collect the amount by sale as aforesaid, then it shall be his duty to return such warrant, with a statement of his doings thereon, to the county treasurer, within ten days after the day named in his advertisement for th.e sale thereunder. Assessment roll 41. Every collcctor shall at the expiration of the time low returned. ;[jjj^^^g(j j^y jjjg ^.q^j rctum to the county treasurer so much of the assessment roll touching the lands of non-residents as relates to those lands in respect of which the taxes remaining unpaid, or in respect of which surplus shall arise in all cases where sales under warrant shall have taken place, and shall also return the certificate given to him as aforesaid. Records, 4c, 42. The couuty treasurer shall record, in a book to be treasurer*!""" ^ kept by him for that purpose, the description of all such lauds, and shall minute opposite thereto the taxes and costs chargeable thereon, and the proceedings had in respect thereof; and such taxes and costs shall be a privi- leged lien, upon the lands, bearing interest at ten per cent for the first year, increasing annually by two per cent additional until payment. Warrants, by 43. It shall bc thc duty of the county treasurer to lay whom awarded ij^ii i_ i> • f i j. and when. cvcry year before the court or sessions tor each county, the book containing such entries, and such court shall have the power, in case they see fit so to do, to award a warrant to the sherifiF of the county for the sale of so much of such lands as may be necessary to pay and discharge the amount of the lien thereon with cost of sale ; provided always that no warrant shall issue for the sale of any lands until after the rates due thereon, or some part thereof shall have been unpaid at least three years. Sale, when 44. When the court shall have ordered a sale, the clerk court. of the peace shall issue a warrant addressed to the sheriff of the county where the lands lie, ordering him to make sale of so much of the lands as may be necessary to pay the charges against the same. Sheriff's sale, 45. ' The sheriff shall thereupon sell by public auction, """""" "" so much of the lands as shall be sufficient to discharge such taxes and expenses and the charges of sale, selling first in preference such part of the lands as he may consi- der to be the least to the injury of the owner, and in all other respects, as to notices and other preliminaries of sale, conducting the same agreeably to the forms prescribed on sales under judgments of the supreme court, and within one month after sale he shall return his warrant to the county treasurer and pay over to him the proceeds of such gale, deducting such costs as he would have been entitled how much sold TITLE XII.] COUNTY ASSESSMENTS. 175 to under judgment sales The sheriff's deed, which shall Chap. 45. be in the form E, annexed hereto, or to that effect, shall be ■prima fade evidence of the title of the lands being con- veyed to the grantee. 46. The county treasurer shall note in the book to be |5ypJ^|;i'j,°f'^ kept by him any surplus monies arising by constable's or ^^^°^^ sherifl''s sales opposite the record of the description of the lands, and any such surplus shall in the meantime be added to the general county fund and be paid to the order of such person or persons as shall prove to the satisfaction of the court of sessions, his or their right to the same as ownei's of the lands in respect of which the sale occurred. 47. The county treasurer on receipt of the taj^es on ^°™s™f^no°° lands of non-residents shall pay over as soon as reasonably residents paid . may be tb the overseers of the poor of any district, so °^*''' much of those monies as belong to the poor rates of the district. \. 48. The collectors shall pay over the monies received collector to pay without delay to the treasurer, who if necessary may main- surer. " tain an action therefor, as for money had and received to the use of such treasurer, and such action, whatever may be the amount claimed, may be brought before any two justices of the peace tor the county, subject to appeal as in ordinary cases ; and every collector shall make a general Return of de- return to a justice within the township or place, or if none faui'ers. reside there to any justice of the county, of every person who after demand made either personally on the party rated or by leaving at his residence a written or printed demand of such rate, or if he has removed from the district by mailing a letter containing such demand, directed to his then residence, shall not have paid his rate ; and the col- lector shall make oath in writing before such justice, setting forth the name of every defaulter, the sum assessed, that demand has been made, and what portion of the rate is unpaid. 49. Such justice shall thereupon forthwith issue a General war- 1 , n -•■ , • ^ 1 i-i^-i rant may issue general warrant of distress against the several defaulters in the form in the schedule, directed to a constable not being such collector, commanding him to levy from the goods of each person named in the warrant the sum due by such person, with constable and justices' fees, and shall specify therein when the same shall be returnable, and the constable shall return the same within the specified time under a penalty of twenty dollars, to be collected and added to the funds of the county over the amount col- lected thereunder to the collector for such township or place, who shall therupon pay the same to the county treasurer. The justice's fee for such warrant shall be j,ggg_ seventy cents, and the constable's fee for each person in the warrant shall be twenty cents ; but the constable shall have no travelling fees or poundage, and the justice's fee 176 COUNTY ASESSSMBNTS. [part I, Chap. 45. Constable's duty on warrant Separate war- rant to take body. Warrant when executed by sheriff. Commission to collectors. Collector's duty Fine. Amercements by supreme court on ne- glect of ses- sions. Proceeding in supreme court. Clerk of the peace to pro- ceed as if pre- sented. Officer's dutyi shall be apportioned among the several persons if more than one in the warrant, and no suit shall be brought against such defaulters before any justice. 50. The constable shall forthwith execute such warrant and pay over the amount collected thereunder to the col- lector for such township or place, who shall thereupon pay the same to the county treasurer ; and if he is unable to find goods sufficient to satisfy the warrant in respect of any parties named in the warrant, he shall make a return to that efiect, and the justice shall thereupon issue a separate or general warrant as may be necessary to include costs and fees thereon, directing the constable to take the body or bodies of one or more of the defaulters and commit to jail as under an ordinary execution, and parties so committed shall be entitled to all the privileges of debtors imprisoned under execution. 51. "Where the amount to be collected under any warrant of distress or commitment exceeds two hundred dollars the same may be directed to and executed by the sheriff, who shall execute the same, and his fees thereon shall be the same as those of a constable. 52. The rate of commission to collectors shall not be more than five per cent, but the sessions shall have power to fix a smaller rate. 53. Every person appointed a collector who shall ne- glect to be sworn into office, or who shall not perform the duties thereof, shall forfeit eight dollars, recoverable in the name of the county treasurer as other debts of the like amount are, which sum when collected shall be paid into the county fund. 54. If the sessions shall neglect to make presentment as herein directed, the supreme court shall amerce the county in such sum as shall appear to them upon affidavit of a rate payer to be necessary for the purpose of the sixth section, which sum shall be assessed upon the inha- bitants of the county, collected, paid to the treasurer and accounted for as other rates. 55. Where the supreme court has power by any act to amerce a county, district or township, an order of the court specifying the amount .to be amerced, and the purpose thereof when served upon the clerk of the :peace, shall render it the duty of the clerk and of every other county, district and township officer connected with the assessment and collection ot rates to proceed in respect to the assess- ment levy and collection of the sum to be amerced, together with the costs of the rule, when ordered and taxed, in like manner as if the same had been presented by the grand jury and sessions in the usual course. 56. Any county, district, or township officer neglecting or refusing to perform any duty devolving upon him under this chapter, may be proceeded against and punished as TITLE XII.] COUNTY A&SESSMBJtT^. 177 for a contempt of court, and shall also be liable to any fine Chap. 45. or penalty imposed upon such officer for neglect of duty, m Lane. 57. The supreme court in case of the neglect or refusal supreme court of any such clerk or other county, district or township "o?fwToTcierk officer to perform any duty devolving upon him under this refusL'*"'""* chapter, shall have power to name a person to discharge such duty in the place of the officer so neglecting or refusing, and the person so appointed shall have all the powers, rights and authorities, and be subject to all the liabilities of the officer in whose room he is appointed. 58. In any case in which a collector of poor and county |p^°'J|5^?"^°'' rates shall deem it necessary to apply for a warrant against a defaulter before the demand has been made upon all the persons named in the collector's roll, such collector shall make oath before a justice of the peace that he has demanded the rate from such defaulter, and that he deems it necessary in order to obtain payment thereof that such warrant should issue, and thereupon the justice shall issue a warrant of distress against such defaulter, to be executed in manner prescribed by this chapter. 59. All monies belonging to or due the county shall be Monies paid to paid to the treasurer thereof; and all money due from the county shall be paid by him on the order of the sessions. Treasurer's ao-/ 60. The treasurer shall once in every year at such time p^e'd an^aiiy as may be directed by the sessions make up his account '""**'^^^*®'^- and send the same to the clerk of the peace to be filed ; i and the same shall be laid before the justices and grand jury on the first day of the next sessions to be audited; but the justices, either in general or special sessions, may at any time before the sessions if they see fit order the county treasurer to make out and render his account up to any period named in such order. 61. Any person aggrieved by the assessment or the Appeals, when levy may appeal to the next sessions held in such county oSted*!"" ^™^^' or to any special sessions to be held for hearing appeals, giving at least eight days notice to the clerk of the peace of such appeal, who is required to appear in support of the assessment or rate ; but such application shall be ■ founded on affidavit setting forth the grounds thereof; and the court of appeal without prejudice to the whole or ahy part of the assessment may either set aside or lower the rate on such person or finally determine the appeal as they shall see fit. 62. If any money has been paid by the appellant, and Repayment the sessions adjudge that the same or any part thereof be "''^ returned, the same shall by order of the sessions be repaid by the treasurer out of any monpy received from the general assessment of the county ; but no appeal shall Appeal not to 5 1 J.1, 11 .■ ff . 1 ^-^1 delay collection delay the collection or recovery of the sum assessed upon the appellant. 23 178 cottNTlr assessmeMs. [part f i Chap. 46. Overseers of works to render accounts. Proceeding for default. Compensatioti to overseers, 4& Forfeitures and penalties, how collected, 4c. Limitation of action and Tenue. Certiorari,wlien allowed and how obtained. Rates when quashed. Over pay- ments not re- coverable, &c. Definition of terms. 63. Every person appointed by any presentment and order thereon or by any amercement, to be an overseer of work or distributor of money so raised, shall at the next sessions, and within a reasonable time by the sessions to be appointed, produce his account on oath if required, with vouchers that the money by him received has been ex- pended according to law ; and if upon account made he shall be found to have money on hand, he shall forthvrith pay the same to such person as the sessions shall appoint, and in default of such account or payment he shall by warrant of the sessions be committed to jail, there to remain in close confinement for three months or until such account be made, and the balance be paid with costs, or sufficient security be given for the same. 64. The sessions out ot the money assessed shall from time to time order a reasonable compensation to overseers, distributors of money, and constables employed under this chapter. 65. Forfeitures and penalties hereby imposed, the collection of which is not otherwise provided for, shall be sued for by the clerk of the peace by direction of two justices, and collected as other debts of like amount with costs ; but no suit shall be brought before a justice who shall have directed the same ; and forfeitures and penalties when recovered shall be paid to the treasurer for county purposes. 66. 'So action shall be commenced for anything done in pursuance of this chapter after six months from the date of the act complained of, and every such action shall be laid where the cause of action arose. 67. IS"© certiorari to remove rates or orders, or other proceedings of the sessions touching rates, shall be granted but upon motion in the first week of the next term in the county after the time of appeal has expired, and upon it being made to appear by affidavit that the merits of the question on such appeal or orders will by such removal come properly in judgment ; and no certiorari shall be allowed till a bond with one surety to be approved by the treasurer be given to him in forty dollars to prosecute the same with eftect, and pay the costs if the rates or orders be confirmed ; nor shall any rates or orders be quashed for matter of form only, nor any general rate for any illegality in the rates of individuals, except as to such individuals. 68. ISTo action shall be brought against a collector or receiver of money on a rate subsequently quashed on a certiorari or otherwise, but the person who has overpaid shall have the amount refunded by the treasurer on the order of the sessions. 69. The word " county " in this chapter shall include a district wherever a county has been or hereafter may be divided into districts. TITLE XII.] COUNTY ASSESSMENTS. 179 70. "Where the word "court of sessions " and "grand Chap. 45. jury", or other words to that effect, are used in this chap- Definition of ter, the same shall in counties or districts incorporated be '®'^'^^' construed to mean the municipal council of such county or district. 71. The city of Halifax shall, so far as regards any f^fj^^^^^ rates which under the authority of law the corporation has the power to enforce, be exempted from the operation of all the sections of this chapter in reference thereto. 72. If the whole assessment to be contributed in any ^™e°Q amoint one year by a district be not collected and paid over to for eacii district ,1*' ., ,^ ,* .. -^ -Tin ascertained. tne county treasurer, the amount remammg unpaid snail be added to the next year's assessment of such district, and collected from such district with and in addition to such next year's assessment. 73. All travelling and other expenses incurred by jus- ^^^^l^lf' '^°'^ tices in the discharge of their appointed duties under this chapter, shall be paid by the county, subject to the approval of the grand jury and sessions. 74. The clerk of the peace shall, when any fine or pen- cierk to enforce alty is incurred, cause proceedings to be instituted to ''^°* '^^' enforce the payment thereof, for the breach of any of the provisions of this chapter, and if he shall neglect to do so within ten days after he shall have been required by the custos or the court of sessions, he shall pay a fine of eighty dollars, to-be recovered in the supreme court in the name of the queen; and in case the clerk of the peace shall P™^"y f™ "«■ neglect to fulfil any of the other duties imposed upon him by the same sections he shall pay a penalty of forty dol- lars, to be recovered as aforesaid. 75. It shall be lawful for the general sessions of any Assessors ap- county, on presentment from the grand jury recommend- p''^"""®""' • ing the same, instead of appointing assessors for separate townships and places, to appoint in the same manner as other county officers are appointed, one or two assessors for each electoral district within the county, who shall be called local assessors ; and also to appoint for the whole county general assessors, not to exceed three in number ; and thereafter the assessment roll for each electoral district in any such county shall be made up by the general and local assessors of the district, acting as a board of assessment for such district. 76. In such case the clerk of the peace shall duly Meeting, notice notify the local assessors of the days and places that shall °^' be appointed by the general assessors for holding a meet- ing of the assessors in each electoral district, and it shall be the duty of the general assessors and local assessors to meet at the time and place narned in such notification for the purpose^of making up the assessment roll. 77. From and after the passing of this chapter the ^S^'bSnd'" poor districts in the counties pf Cumberland and Queens and queens, 180 COUNTY ASSESSMENTS. [PAKT I, Chap. 45. Assessors to furnish lists. shall be re-established as they existed previously to the passing of chapter nine of the acts of 1861, entitled " an act to amend chapter forty-six of the revised statutes, ' of county assessments.' " 78. The assessors in those counties shall, within the time •'Ilowed for making up the county rolls, furnish to the Cvjrks of the several poor districts wholly or in part within their respective polling districts a list of the names of all taxable parties in such several poor districts, with the amount of pi-operty assessable against each for poor rates ; and within thirty days after the receipt thereof the clerks of the poor districts shall severally make out the poor rates for their respective districts, and place the same in the hands of the collectors. SCHBDTJLB. A. All personal chattels of every kind and description at. their actual cash value except as qualified beneath. The average stock of goods on hand of every merchant, trader or dealer, manufacturer, tradesman, or mechanic, such average stock to be considered the mean between the highest and the lowest amount of goods on hand at any time during the year, and to be estimated at cost price. One-half the value of ships afloat, whether in the pro- province or elsewhere. B. Assessment roll for the township [or disiricf] of . Name of tax- able party. Value of real estate within the county - Vilue of per- sonal estate within the Whole taxable property. District in which pro- perty is. Amount assessed in different townships. A. B. CD. E. F. G. H. Non-residents land within the township [or district}, per list. $2400 4D0 $800 1500 800 200 $3200 1600 800 200 Township of A $1000 1400 800 TITLE XII.] COUNTY ASSESSMENTS. 181 Assessment roll of non-residents lands within the town- Chap. 45. ship [or disirici] of . Name of taxable party if known. Number of acres or thereabouts. Description of lot sufficient to identify it. Value of land. J. R. Unknown. 600 300 A lot of land situate to the west of riYer, bounding thereon on the east [or such other descrip- tion as may identify it.J A lot of land originglly granted to A. B., [or such other descrip- tion as may identify it] $800 5200 c. Collector's roll for county rates for the township [or district'] of . Name of taxable party. Poll tax. Taxable property. Rate payable thereon. Total tax. A. B. 25 cents. $8200 00 $1 60 $1 85 CD. 25 " 1600 00 80 1 05 E. F. 25 " 800 00 40 65 G. H. 25 " 200 00 10 35 Non-residents land. 6000 00 3 00 3 00 Collector's roll for county rates for the township [or district'] of . Name of taxable party, if known. No. of acres. Description of lot sufl- eient to identify it. Value of land. Total levy. J. K. Unknown. 500 801 (Copy the descrip- tion from the certified roll, or give other sufficient description of it.) (Copy as above.) $800 00 5200 00 40 cents $2 60 You are hereby required to collect three dollars, the tax as specified in the within roll, and to pay over the same to the county treasurer within days herefrom. A. B., clerk of the peace. To C. D., collector of county rates for above district. 182 COUNTY ASSESSMENTS. [PART I. Chap. 45. E. To all to whom these presents may conie : I, A. B., sheriff of the county of , send greeting: "Whereas, C. D., of , in the county of , on the day of the date hereof, bought for the sum of the lands hereinafter described, at a public auction held at , under the provisions of chapter forty-five ; and whereas, upon such sale the said C. D. paid the purchase money : ISTow know ye, that I, the said sheriff, in consideration of the sum of , so paid to me as aforesaid, have granted and conveyed, and by these presents do grant and convey to the said CD., his" heirs and assigns, all that [^here describe the land.'] In witness whereof, I have hereto subscribed my hand and seal at this day of , A. D., 18—. F. Form of general warrant of distress. County of) To A. B. one of the constables of the j township of . ne™wln*a'nt. Whereas by a rate and assessment made in conformity with law, the persons named in the schedule hereunto annexed have been assessed for county rates for the year ending the ; and whereas it appears to me, one ot the justices of the peace for such county upon the oath of C. D., one of the collectors for such township, that the several sums for which they have been assessed liave been demanded from such persons respectively, and that the sums set opposite their names in such schedule remain unpaid: these are therefore to require you forthwith to make distress of the goods and chattels of the persons mentioned in the schedule ; and if within the space of five days next after such distress by you taken the sums in the schedule set opposite their respective names, being the sums rated on them respectively, together with their proportion of justice's and constable's fees and the neces- sary charges of taking and keeping the distress be not paid by each of them respectively, that then you do sell , the goods and chattels of such of them as shall not have paid such sums with fees as above mentioned, and out of the monies arising from such sale you do forthwith pay over the sums so due by them respectively to the said C. D., the collector, together with the justice's and constable's fees, if any, by him paid ; and that you do render to the owners of the goods respectively upon demand the surplus remaining from such sale, the necessary charges of taking, keeping and selling the distress, being first deducted, and if no such distress can be made, that then you certify the TITLE Xll.] JAlLg. 183 same to me, and of your doings under this Warrant make Chap. 46. due return to me within days after the date thereof. Given under my hand and seal the day of A. D. 18— (Signed) — J. P. (seal.) CHAPTER 46. OF JAILS AND OTHER COUNTY BUILDINGS. 1. County or district jails, court houses and session's jaiis, court houses, may be erected and repaired by order of the grand ^S^nlla^es^^' juries and sessions in the respective counties and dis- g^drepafrld. tricts. 2. If a jailor or other person shall sell or deliver or qPorg^forbid- permit any person to sell or deliver to any prisoner or other den withmjaii person any spirituous liquors in any jail or jail yard, or within the limits of any jail, or in any room or part of a house or building where a jail is kept, or shall bring or suffer such liquors to be brought therein to be used by any prisoner there, such person shall forfeit a sum not exceed- ing twelve dollars. 3. Every jailer on a second conviction therefor shall in Penalties for a addition to paying a second fine be disqualified for office tfon"." and be forthwith dismissed 4. Prosecutions shall be in the name of the clerk of j^^^^^'j.^^j.'g'g'^ the licenses for the county or district, and on information license. given him it shall be imperative upon him to sue for such iine. 5. Nothing herein contained shall prevent the intro- preSJribrd^Se- duction of liquors for sick persons being in jail when f^^n-\g'5''y ^^ prescribed in writing by a physician. 6. If the limits of a jail extend beyond the jail yard Exceptions: and include any house or building other than the jail, witwnthe^^^ nothing herein contained shall extend to such limits unless '™''^' as respects delivering or carrying such spirituous liquors to prisoners confined within such jail or the limits thereof. 7. The supreme court in the dififerent counties shall yards"sweiias from time to time make and publish rules and orders for the emduct of fixing and ascertaining the limits and boundaries of jail officers, to be yards, and for directing and controlling the conduct of 3u|reme'^c^o''urt.. sheriffs, jailers and officers having the charge or custody of prisoners, and for their safe keeping and protection. orders touch 8. The iustices in sessions may make orders for the j"s,j=.°™*y, ,. •'„ ,.,,. i*>.i. 1 1 buildings, af- regulation ot county buildings and for the internal regula- fectingjaiis, tion of county or district jails for the guidance of jailers ioners,madeTy and other subordinate prison officers, and for the comfort \ll^ sessions in oer- cases. 184 TOWNSHIPS AND OFFICERS. [part I. Chap. i1. Jailer's salary, how regulated; fee may be abolished. Sessions orders to be submitted to the supreme court for allow- ance. Jail regulations to be posted in the building. and control of prisoners ; but the same shall not extend to interfere with or affect the security of prisoners there confined, nor the custody or control of the sheriff over his prisoners, nor to lesson his responsibility for their safe keeping. 9. The justices in session with the assent of the grand jury, may regulate the salary of jailers and subordinate prison officers, and may regulate or abolish the payment by prisoners of fees. 10. Certified copies of all such orders shall forthwith thereafter be furnished by the clerk of the peace to the prothonotary of the county, and thereupon the supreme court at its next term may alter, disallow or confirm the same. If not altered or disallowed at the next term, they shall immediately thereafter be in force. 11. Every sheriff and every jailer shall keep a copy of the jail regulations posted in some conspicuous part of the building, and the clerk of the peace shall furnish him there- with upon demand. TITLE XIII. OF TOWNSHIPS Am) TOWNSBIP AKD PEACE OFFICERS. OHAPTEE 47. OF TOWNSHIPS, CERTAIN COtTNTT AND TOWNSHIP OFFICERS. Boundaries of townships con- firmed. Surveyors of township lines appointed; their duties. Town officers, how nominated ad appointed. 1. The boundary lines of townships, wherever the same have been established, are confirmed. 2. The grand jury for each county, when required by the court of general sessions, shall nominate out of the respective townships within the county or any of them, six persons, out of whom the justices shall appoint three to be surveyors of lines and bounds of such townships, who shall survey, examine and ascertain the lines and bounds of such townships in such manner as the sessions shall direct; and the lines of townships so surveyed when, con- firmed by the sessions shall be binding. 3. The grand juries in the several sessions of the peace shall annually nominate such number of persons for town officers as the justices shall direct, out of whom the jus- tices shall appoint such number as may be deemed expedient. TITLE XIII.] TOWNSHIPS AND OFFICERS. 185 4. If the grand jury and sessions shall not appoint a Chap. 47. surveyor of highways or other usual county or township surveyors of officer for any particular district, any two justices of the aploSed li?^ peace of the township or settlement may make such eases of omis- ■^ . , , ■*■ '^ sion of sessions. appomtmeut. 6. The officers so appointed shall be respectively sworn officers to be to the faithTul discharge of their duty before a justice fM°oertai'n*'°''^ before entering thereon ; and upon refusal to accept office °ff«'°'=«s- or neglect to be sworn in within fourteen days ; or misbe- haviour therein, every such officer for each offence shall forfeit eight dollars. 6. If any person so appointed shall die or leave the vacancies, how- township during his term of office, or shall not perform the duties thereof, any three justices may nominate and return a list of three persons to the custos of the county or district, one of whom shall be selected by the custos to fill such vacancy. The custos shall return such hst with his selection to the clerk of the peace, who shall imme- diately notify the person selected of his appointment, and the person so-appointed shall be subject to the same duties and liabilities as in ordinary cases. 7. All plans, e-rants, title deeds and conveyances, be- custody of town 1 • . .I- • i-i,n • T plans, grants, longing to any township, or m which the proprietors have io. provided; a common interest, shall be kept in the custody of the im?^ "^spec- clerk of such township, who may recover possession thereof in an action in his own name, and such documents shall be open for inspection to all persons on payment of a fee of ten cents. 8. The sessions for the county of Halifax are authorized constawes- upon the recommendation of the grand- jury, to appoint ^°^ appointed. constables to attend upon the sessions and the supreme court within the county, in the same manner as other town officers are appointed. 9. In case of riot, tumult, or disturbance, or illegal acts special con- of any kind, accompauied with force or violence, or of a tob'elip^rinted, just apprehension thereof, if in the city of Halifax, the """i '^o"- mayor and any three of the aldermen ; and if elsewhere in the province, any three of her majesty's justices of the preace may, by writing under their hands, appoint any number of special constables to assist in preserving peace and order. 10. Such special constables shall, within the city, be Bywiiomdi- under the direction of the mayor or presiding alderman ; troited.""'^ '^°°" and if elsewhere, under the direction of the senior magis- trate who has signed their appointment. 11. In the city, the mayor or any alderman, and else- By whom to be where any justice of the peace, may swear in such special ^'^°™' constables to the faithful discharge of their duty. 12. The appointment of such special constables shall "™t'4°a° 4°^ "P" continue in force for the period of fourteen days from the "^"^^ '"^'^ ' 24 186 TOWNSHIPS AND OFFICERS. [PART I. Chap. 47. date of such appointment, unless sooner revoked by the mayor, aldermen, or justices by whom they were appointed. Disorder, or dis- ^3, Jq gase of disorder or disturbance which may occur turbanoe or ap- , , , . , . , , „ , •, •' prehension of, at any public meeting or assemblage oi persons, tne mayor atjubhcmeet- ^^ ^^^ aldcmian if in the city, or any justice of the peace if elsewhere, upon the request of the chairman of such meeting, or of three or more freeholders, may verbally appoint and swear in special constables who shall aid in restoring and preserving order and peace at such meeting or assemblage. cj'nstaWj's-re- 14. Auy person who may be appointed a special con- using o serve, ^^^-^^q under the last five sections, and shall neglect or refuse to be sworn into office, shall be liable to a penalty of eight dollars. Appointment 15. The grand jury and sessions may appoint one or ucf ?onsteEi°e'8. Hiore policc constables, to act for the preservation of the public peace and order, and for the enforcement of the laws against crime, vice and immorality, in such townships or districts as they shall see fit, and may make regulations as to the duties to be performed by them and may provide for their remuneration by salary or otherwise. Funds, how 16. The funds necessary for such purpose shall be raised raised. -\^j asscssmcut, upou the districts wherein such officers are appointed, in the same manner as poor and county rates. Protection of. 17. Any pcrsou who shall by force resist any constable or special constable in the execution of his duty, shall be subject to a penalty of not less than two dollars and not more than twenty dollars, to be recovered, if, in the city, on conviction in the police court, and if elsewhere, before any two justices of the peace and on non-payment the ofl'ender shall be committed to the jail of the county for a period not exceeding thirty days. Lists of officers 18. The clcrk of the peace shall cause lists of all ^°^ officers appointed at the sessions for the several townships or districts to be posted in at least three of the most public places therein within one week from the close of such sessions. officerswhento 19. All such officcrs cxccpt oversecrs of the poor shall enter on duties. ^^^^^ ^^^^ ^^^j^, (j^^jgg q^ ^jjg twentieth day from the first day of the sessions, and the old officers shall serve up to that time. Overseers of the poor shall take 9ffice at the time now by law provided for the holding of the first town meeting ,after their appointment, and their predecessors shall discharge their duties of office until then. demnffi"d.'°" ^^' ^urvcyors of highways shall be indemnified by the county in cases where they may bring actions under the written authority of two justices of the peace against persons neglecting or refusing to perform their statute labor. Officers eligible 21. All towu officcrs shall bc eligible for re-appoint- rSent^^^"'"*" mcut annually and may serve in one or more offices. TITLB XIII.] IMPOUNDING CATTLE — FENCES. 187 22. Surveyors of highways shall make their returns to Chap. 48. the clerk of the peace at least twenty days before the surveyors of meeting of the sessions under penalty of two dollars for mfkrreturns. each default. 23. The justices in session may fix the rate of the g",|j°of*oount (County treasurer's salary not to exceed five per cent on the treasurer. amount of monies received by him, unless the grand jury grant an additional sujn. 24. In cases where the duties of town officers are not ^It de^aned'^^ 'now defined by law, the justices in session shall have justices may power to determine the same. determine. 25. Persons required to be sworn into ofdce under this Form of oath. ichapter shall take and subscribe the following oath or one to the like effect : " I, A. B., appointed to be , do swear that I will well and faithfully perfom the duties of the ■office to the best of my skill and ability " ; which oath shall be filed with the justice administering the same. 26. For the pmi-poses of this chapter the words "town- Definition of ship" and " settlement" shall extend to andinclude counties ''™'' 'j.j_ 1 of education ; Img expenses and contingencies oi omce, not to exceed salary. four hundred dollars, whose duties shall be' as follows : — contingencies. To inspect and examine annually all the county academies ^"*'^^- throughout the province, and as often as he may be required by the council of public instruction all schools receiving provincial aid, and make such enquiries and report respect- ing the qualifications of teachers and management of schools as he naay think proper, under the directions of the council of public instruction. To promote the establish- ment of superior schools, to hold institutes of teachers and public meetings, to prepare printed instructions and blank forms for all purposes required under the law, and fiwnish them together with copies of this chapter gratuitously to the boards of commissioners and teachers, and to make annually for the information of the legislature a report on the state of the schools subject to his inspection, accom- panied by full statistical tables and detailed accounts of the expenditure of the monies appropriated by this chap- ter. To distribute all necessary blanks for the purposes of this chapter, and to make such suggestions on educational subjects as he may deem proper. 4. The council of public instruction shall have the ^truction°to"*" general superintendence of the normal school, shall pre- ^"p^mSooi pare and publish regulations under which money shall be — maiic reguia- drawn and expended and teachers classified, and shall exSminers,'4o. niake such general regulations for the guidance of school boards as may seem best fitted to bring about uniformity in their proceedings ; shall appoint properly qualified per- sons to examine the students of the normal school for the purpose of awarding them certificates after the completion of their term of attendance, who shall be entitled to receive three dollars each per diem when engaged in the performance of that duty ; shall recommend suitable text books and apparatus for all schools, as well as proper books for school libraries, and shall decide all cases of appeal from commissioners, trustees or teachers, and make such orders thereon as may be required. 5. The council of public instruction shall appoint an ^j^^^JJ^^^^jf; . inspector of schools for each county of this province upon point inspeot- the recommendation of the superintendent of education, <"^^°^^''^°°^^- who shall be the secretary and clerk of the board of com- missioners : his duties shall be to visit and exanline half- ^^^ '^°''®^- yearly each school within his county, report fully upon its condition to the commissioners in conformity with instruc- tions received from the silperiiltendent, furnish the trustees and teachers such information as they may require respect- ing the operation of this chapter and the performance of 2T 210 PUBLIC INSTRUCTIOlf. [part Chap. 58. Inspector to give bond. Pay of Inspec- tors. Oovernor in council to ap- point county commissioners Visitors of schools. Meetings of commissioners. Election of chairman. Special meeting Commission of revisal, how formed, &c. Accounts, how paid. School sections how laid off. their duties, have the charge and management of all school books belonging to the board, promote the advance- ment of education by holding public meetings and diffusing such information as shall further that object, as also the improvement of school houses and all appertaining thereto, and generally aid the superintendent in carrying out a uniform system of instruction. 6. The inspector shall give a bond in double the sum of money allotted to the county or district to her majesty with two sureties for the faithful performance of his duties ; and he shall keep the accounts, monies and records of the board of commissioners. 7. The inspector shall receive from the commissioners five per cent on the actual disbursements, and in addition thereto one dollar and fifty cents for each half-yearly visit to each of the schools in his district. 8. The governor in council shall appoint seven or more commissioners for each of the counties and districts named in annexed schedule B, who shall form a board of school commissioners, of whom five shall be a quorum. Members of the legislature, the clergy, and magistrates within each county shall be visitors of schools. 9. The commissioners shall meet on the first Tuesday in May and November, and where there are more than one school district in a county the council of public in- struction shall fix the time for the meeting of the board of commissioners. 10. The chairman shall be elected annually at the meeting in May, and shall call a special meeting when required by two members of the board, or when directed by the council of public instruction. 11. The chairman of the board, the inspector of schools, and a deputy surveyor of crown lands, shall form a commission to revise and re-arrange each school district in schedule B into sections, subject to the approval of the couiDcil of public instruction, who shall have power to confirm, amend or direct a re-atrangement ; provided the expense for laying out such sections does not exceed the sum of forty dollars for any one district, the accounts to be approved by the board and paid from the provincial treasury. 12. The above special commissioners shall have due regard to the number of children and to the ability of each section to support an efficient school ; towns and villages the population of which is less than four thousand not to be divided, unless by special direction of the council of public instruction ; no more than one school shall be held in one school section, unless in cases where upon the recommendation of the inspector of schools for the dis-^ trict the council of public instruction shall perm it Separate schools for the different sexes ; the sections thus laid off TITLE XVII.] PUBLIC INSTRUCTION. 211 shall be numbered and specifically described in a report to Chap. 58. be submitted to the board of school commissioners at the meeting in November, due publicity by advertisements signed by the inspector posted in at least three of the most public places, having previously been given within each section of the bounds thereof. 13. It shall be competent for the board of commis- Board of c.om- sioners with the sanction of the council of public instruc- aitlr'seetioM^^ tion, to make such alterations in the allocation of the sections as may at any time be required at a regular semi- annual meeting of the board. 14. The board of commissioners shall appoint a com- ^°ftPP°'^*°°'"" mittee of three examiners for each school district, one of ammers; their whom shall be the inspector of the district, whose duty it '*"*'^^' *"• shall be to examine all applicants for license to teach, in accordance with the qualifications of each class of teachers, prescribed by the council of public instruction, and grant the same to those found qualified, satisfactory evidence of good moral character having previously been given ; and no teacher shall without such license receive any portion of the sums granted for the support of academies, superior or common schools — -said committee to receive at the rate Bemuneration of two dollars per diem for every day they meet. 15. If any teacher holding a license shall become Drunkenness, guilty of drunkenness or other gross immorality, the com- how°punfshld. ' missioners shall cancel his license, and notify him and the trustees of any section in which he may be employed of the same, such teacher to draw no portion of the sum f ranted by this chapter for any time after his license has een thus cancelled. 16. The clerk of the board of commissioners shall pay fSl^s'. °^ the sums allotted to the teachers personally or upon their written order so soon as practicable after they are due. 17. The sum of seven thousand two hundred dollars Annual grant to shall be granted annually towards the support of county miJs,^owap- academies, to be constructed and located in accordance '''""*' with the directions of the council of public instruction, and to be applied as specified in schedule A ; the sum of ^^^^^^j ^.^^^ ^^ seven thousand two hundred dollars for superior schools, silpifor™ to be constructed and located by the council of public ^stributedric. instruction, to be provided in the proportion of four hun- dred dollars for each county, each school to receive not less than one hundred dollars, and the further sum of fifty-eight thousand eight hundred and eighty dollars towards the support of common schools as specified in schedule B ; and when in any county the sum granted for when academy academies shall not be drawn, one-half the said sum shall drawn, how be appropriated to aid the superior schools established in ^pp'^op"^'^ • such county, and the remaining half to the common school fund for said county. 212 PUBLIC INSTEUCTION, [PART I. CiiAr. 58. 18. One-fifth of the whole sum appropriated for com- oommon ii^on schools shall bc applied to aid poor and scattered aohooia monies, gections in addition to the amount to which they may he how approiin- ^ . -tt t, ji *'..*' ated. otherwise entitled on such terms as the commissioners shall decide, the remainder to be distributed among the sections when suitable school houses are provided in such manner that teachers of the same class shall receive at the same rate ; that second cl'ass teachers shall receive not more than three-fourths of the amount paid to first class teachers ; third class teachers one-half of the sum given to first class teachers ; provided that in cases where the inspector shall report that the teacher has not sustained the standing as a teacher indicated by his license, then it shall be competent for the commissioners to withhold the provincial grant in whole or in part. Monies, how 19. The commissioncrs shall draw half-yearly the . before mentioned sums allowed under this chapter, and in addition thereto the amount necessary to pay to the inspector one dollar and fifty cents for each half-yearly visit actually made to each of the schools within the county or district ; and they shall be entitled to allow not more than twenty dollars per annum of the provincial allowance to the clerk for stationery and five per cent on the disbursements. Twenty-flyo poi 20.' The commissiouers shall allow twenty-five per cent to school sup-' to all schools supported by assessment in addition to the ses'^smenf-Pro- amount to which they would otherwise be entitled ; pro- viso, vided the inspector shall report that instruction has been impartially afforded to all seeking it. Commission- 21. Any pcrson may convey or devise real estate to the Grs msv iiolcl . . reui estate in commissionei's for any district, and duly vest in the com- purposra!*^ °° missioners and their successors in ofiB.ce the legal estate therein in trust for the purpose of erecting and keeping in repair a school-house thereon ; and the commissioners may sue and be sued in respect thereof, but shall have no control over any school-house on such lands, as against the trustees of the school section or the inhabitants, other than may be expressed by the conveyance or devise. Commission- 22. The commissioucrs shall on or before the first dav t urns annually of Deccmbcr in cveiy year, make a return to the financial Sblr"'^^' °'^" secretary of their proceedings, and of the monies by them received and distributed and such other returns as may be directed by the council of public instruction, and shall certify that the same is, to the best of their belief correct in every particular, and that they have distributed the provincial money impartially and faithfully. 4eotin ^whoro ^^- '^^^ annual school meeting for the appointment of and when held, trustees and othcr school business shall be held in the school house of the section, or if none, in any other con- venient building on the last Tuesday in October. The first meeting succeeding tjie passing of this chapter shall < TITLE XVII.] PUBLIC INSTRUCTION. 213 be convened by the clerk of tbe commissioners, and all Chap. 58. succeeding meetings by the trustees, or where none exist By whom and" by the clerk, by notices posted in three of the most public ''""' ' ""''^"""i- places, at least three days previously, signed by the clerk or trustees as the case may be. 24. At the first annual meeting under this chapter, Jppoi°t|i!'"" thi'ee trustees shall be appointed in each section, and at each annual meeting thereafter one of the trustees first elected shall go out of ofl&ce by ballot, and another shall be elected in his room ; provided' always that he may be re-elected with his own consent. Any person appointed fJ^S^^J^'^r" a trustee and refusing to act shall forfeit the sum of ten dollars. 25. At every annual meetinor the maiority of the free- chairman ami «/ o *• */ SGcrGTRry, now holders and householders present shall elect one of their appointed. number to preside over the meeting, and shall appoint a secretary to record its proceedings ; and the chairman shall decide all questions of order, and shall take the votes of ratepayers only, and shall give a casting vote in case of an equality of votes. Ratepayers in this chapter shall Bate payers, de- mean the persons whose names are included in the last county rate roll for the district rated in respect of real or personal property, but shall not include persons rated only for poll tax. 26. The annual meetina; shall receive the report of the Annuaimeeiing o TIP! • T ^^ receive the trustees as to the state of the school, and the lunds required report of tms- n ', , • ,1 ■ T j_i . -i T 11 tees, and decide for its support m the ensuing year, and. tne majority snail how school decide as to the manner in which such support shall be ported,Yc"^" raised, . whether by subscription or assessment ; and in case it is decided to raise the required funds by subscrip- tion, and the sum subscribed for the support of the school fails to be realized, the balance shall be raised by assess- ment in manner as hereinafter mentioned, the amount previously paid being taken into consideration ; and if a majority present agree to raise money for the support of one or more schools by assessment, or for the purchase of lands whereon to erect school houses, or for the building or repairing them, they shall then appoint three assessors Je°ssOTs''if re-''" who shall forthwith assess the amount upon the inhabit- quired. ants of such section by an equal rate upon such section to ^ow mrd^e"' be imposed according to the assessment roll for the year, to be furnished by the clerk of the peace for the county or district in which such school district shall be situate, and shall be collected by a collector, to be also appointed at ^^°'^ collected such meeting under a warrant to be signed by the assessors, and in default of payment to be collected under and subject to the provisions of chapter of the revised statutes, of "county assessments," and of any acts in amendment thereof; and such assessors shall return such assessment to the general sessions or to any special sessions held for that purpose, when appeals shall be had 214 PUBLIC INSTRUCTION. [PAKT I. Chap. 58. Trustees may assess for build- ings when re- quired. Qualification of voters. Declaration. Penal ty for falfe declaration. Trustees to be body corporate. Trustees may appoint secre- tary. His duties and remuneration. Duties of trus- teei. and determined, and when in accordance with the instruc- tions and regulations of the council of public instruction the school-house or houses in any district shall he declared unfit for use by the school commissioners, the trustees shall be authorized to raise the sum required for the building by assessment on the real and personal property of the inhabitants of the district. 27. If any person offering to vote at an annual or other school section meeting shall be challenged as unqualified, the chairman presiding at such meeting shall require the person so offering to make the following declaration : " I do declare and affirm that I am a ratepayer in this school section and that I am legally qualified to vote at this meeting"; and every person making such declaration shall be permitted to vote on all questions proposed at such meeting, but if any person shall refuse to make such declaration his vote shall be rejected, provided always that every person who shall wilfully make a false declaration of his right to vote shall be deemed guilty of a misdemeanor and punishable by fine or imprisonment at the discretion of the court, or by a penalty of not less than five or more than ten dollars, to be recovered by the trustees of the sec- tion for its use as a private debt under clause eight of chapter one of the revised statutes. 28. The trustees of any section shall be a body corpo- rate for the prosecution and defence of all actions relating to the school or its affairs and other necessary purposes, under the title of trustees of section No. — , in the county [^or district] of . 29. It shall be the duty of the trustees to appoint one of themselves or some other person to be secretary of the board of trustees, whose duty it shall be to keep the accounts, monies and records of the board, and to collect and disburse the school monies as directed by a majority of the trustees, who shall receive five per cent, commis- sion on all sums collected by him for school purposes and his duty shall be to keep the school in repair and supply it with comfortable furniture, out-houses, fuel and appa- ratus. I. To take possession of and hold as a corporation all the school property of the section (but not to interfere with any private rights or the property of any religious denomination,) or which may be purchased for or given to it for the use or support of common or superior schools, and if necessary to lease or rent land or buildings for school purposes for a period not less than five months. n. To contract with and employ a licensed teacher or teachers for the section for a period of not less than five months, and to determine the amount of his or their salaries, which must be procured from the people by voluntary subscription or assessment, and not by fees per TITLE XVII.] PUBLIC INSTRUCTION. 215 pupil. All common schools shall be free to all the children Chap. 58. residing in the section in .which they are established. III. To visit the school at least four times in each year, and to be present when practicable at the semi-annual ex- aminations, and to prepare or have prepared a true return of the state of the school, according to the form- prepared for that purpose by the superintendent, and to forward the same to the commissioners at the close of each half year. IV. To take due care of the portion of library books allotted to the section, and return the same to the clerk as directed in the rules for libraries. V. If any trustee shall sign a false return tending to raise return by procure for the section an undue share of the public aid, l^fm^^' ''^°'''" he shall forfeit the sum of twenty dollars, to be recovered by the clerk of commissioners for school purposes, and if any dispute arise between the trustees and teacher respect- ing the teacher's salary or duty, it shall be referred for decision to the board of commissioners. 30. If the section be entitled to a superior school or to To be trustees more than one school, the trustees of the section shall be schoX."™ trustees of all such schools, and no section shall have more than one board of trustees. 31. In case no annual meeting shall be held by trustees when no meet- it shall be competent for the inspector to call such meet- splotOTmay ings twenty days thereafter. ='*" ™^^"°s. 32. ISTo person shall be deemed a qualified teacher Qualified teach under this chapter, or receive any portion of the school license.' ^°^^ grant unless he hold a license from the commissioners of the county or district in which he is employed; it shall be the duty of every such teacher : I. To teach diligently and faithfully all the branches sis duties. required to be taught in his school and to maintain proper order and discipline therein according to his engagements with the trustees and the provisions of this chapter. n. E"ot to attempt establishing a school in any section without in the first place making an agreement with its trustees, and if there be no trustees to notify the clerk of the same, that trustees may be legally appointed. m. To keep an accurate register of the daily attend' ance of the pupils, the register to be at all times open to the inspection of commissioners, inspectors, visitors and trustees. IV. To have at the end of every half-year a public examination of his school, of which he shall give notice through the pupils to the parents and trustees and to school visitors resident in the section. V. To give notice of school meetings advertised by the clerks or trustees through his pupils. VI. To furnish the trustees, commissioners or super- intendent with any information that may be in his powef 216 PUBLIC INSTRUCTION. [PART I. Chap. 58. respecting anything connected with the school, or affecting its interests and character. VII. To sign a certificate attached to the return, truly- stating that no part of his salary has been coUusively with- held, and that the engagements made hy the trustees have been carried out in good faith ; and any teacher signing a false certificate shall be liable to a fine of twenty dollars, to be recovered by the clerk, and applied for school purposes. Vin. To inculcate by precept and example a respect for religion and the principles of christian morality. anSTeaohe^"''* ^^- '^^^ Superintendent and licensed teachers while exempt from employed as such shall be exempt from militia duty, and militia duty, &c. „ -"^ "' . . , ^n • • "^ irom serving m any town omce or on juries. Allowance for 34. The couucil may draw from the treasury a sum how°dr J. ■ Compensation shall be entitled to receive compensation tor fencing on to proprietors, making oath that the fence has been put up at least half "''^'"^ "'*"^^- the full width of the road from the centre thereof, as so laid out, such oath being in other respects conformable to the provisions of this chapter. 14. Where roads have been or shall hereafter be altered sites of roads or made without any demand for compensation made by Tm-ren'de^ed! proprietors of land through which the new road runs within one year from the opening thereof, such acqui- '224: SUBSCRIPTIONS TO PUBLIC WORKS. [PART I. Chap. 61. . esence on the part of the proprietors shall be held a volun- tary surrender to her majesty forever for a public highway of all the land through which the new road passes to the width to which the said road was originally laid out. ?oTd",'hovJ'1aM ^^- "Tb® sessions may order the laying out of a private out. ' -way either open or pent in the same manner as above pre- scribed, except that the application for such road need not be by twenty freeholders, and the damages in such case ?c™unty''or°di's^- ^^ iu any case where they have been hitherto allowed and triet charge, havc not bccu paid by the poor district through which the road runs, shall form a county or district charge, or shall be borne by the applicants, as the court in confirmation may order. ways^byOTdef^ 16. The scssions may direct gates to be placed on of sessions. private ways and make regulations respecting the placing penait for ^^^ keeping thereof, and persons guilty of a breach of the breach of regu- regulations shall for every off'ence forfeit not less than one a ions. dollar nor more than eight dollars. m^debltove 1'^- ^o Compensation for fencing shall be made under compensation, this chapter uutil the proprietors of the land shall have made oath before a justice that the fence has been put up in a proper manner, and at least one-half of the whole width from the centre of the road, and encloses in whole or in part some of his lands, and that the same shall not be removed with his assent. ^miking of°^^ 18. A public landing upon the shore of any navigable water may be established or altered by the same means and in the same way as a new road may be made or an old one altered under this chapter, and in so far as the same may be applicable the provisions of this chapter shall extend to such landimgs and to roads connecting the same with the queen's highway. d^dtm °^ ^^' -^^y public landing laid off or established under this chapter may include so much land as in the opinion of the committee may be sufficient for the purposes of such landing, not to exceed in all one acre. Justices of 20. iSTo iustiee of the peace shall be appointed to act peace mehgiblo i 4.1 "^ i ,• pj.1,- i, i. lor appoint undcr the second section oi this chapter- ment. OHAPTEE 61. OF SUBSCRIPTIONS TO PUBLIC "WORfiS. '^uwfcworksto "'■■ WlisJiever any subscription shall be opened and Ee liable with- made ill aid of the erection of any road, bridge, place of tion'\n''lgre™' worship, school housB, Or for any other undertaking of public utility, or which may be designated in the subscrip- ment. TITLE XVIII.] HIGHWAY lABOR. 225 tion list as or appears to be a public undertaking, and such Ouap. 62. undertaking shall be commenced, every person who may ~ ' have engaged by written subscription to contribute money, labor, or other aid towards the undertaking, shall be held legally liable and bound to perform his engagements, notwithstanding any apparent want of consideration in the agreement for the same. 2. In case of public grants made in aid of such under- commissioner, ,. - ^ . . ^ , • , t , &c, may enforce taking, the commissioner or other person appointed to paymentofsub- expend such grant, or where no public grant shall be made noHTO™o* ^ then the person to whom the performance or superintend- ence of Such undertaking may have been entrusted or the person who may himself have engaged in and be then carrying on such undertaking, may require all persons who may have so subscribed to perform their engagements; and in case any subscriber shall after a written notice of at least one month refuse or neglect so to do, he may be sued by such commissioner or other iDcrson hereinbefore mentioned, or the person to whom such subscription may be payable as if such subscription were a private debt of the like amount; but nothing in this chapter shall be Not to extend construed to bind or make liable the estate of the executors sublcriblr°s, or administrators of any subscriber unless they be specially ™'^^=' *°- named in the instrument subscribed by him. 3. All monies or other aid so subscribed and recovered ered-howT- shall be applied and expended for the purpose for which pued. the same shall have been so subscribed, and for no other purpose whatever. OHAPTEE 62. OF HIGHWAY LABOR. 1. The districts as now established for the performance Districts con- of statute labor on the highways are confirmed, and the si^ontomakr^' sessions may erect new districts or alter the limits of those °®^- now established. 2. Every male between the agea of sixteen and sixty, fo^t^^^ays'^® being able to do a reasonable day's work, shall be liable to work. perform two days labor as a poll tax. 3. All males whose names are included in the assess- on^f^o*^**'*'' ment roll and assessed for any sum over' two hundred dollars, shall be liable to perform in addition according to the following scale :-^ One hundred to two hundred dollars one day, Two hundred to four hundred dollars three days, Four hundred to six hundred dollars four days, 29 226 HIGHWAY LABOR. [part I. Chap. 62. Males over sixty years. Persons ex- empt. Property ex- empt. Surveyor may require teams. Labor to be done in eight days if required No. of hours in each day. Six hundred to one thousand dollars five days, One thousand to one thousand four hundred dollars six days, One thousand four hundred to one thousand eight hun- dred dollars seven days. One thousand eight hundred to two thousand two hun- dred dollars eight days. Two thousand two hundred to two thousand six hundred dollars nine days, Two thousand six hundred to three thousand dollars ten days. Three thousand to three thousand five hundred dollars eleven days, Three thousand five hundred to four thousand dollars twelve days. And ahove four thousand at the rate of a day to every thousand dollars. 4. Males over sixty years of age holding property assessed for a sum less than one thousand dollars shall he exempt from the performance of statute labor, but such persons holding property assessed for over one thousand dollars shall be liable for the performance of statute labor in respect of such excess, and in computing the number of days to be performed the amount shall be calculated by the scale, beginning at one thousand dollars and pro- ceeding thereon to the amount contained in the roll. 5. Persons holding commissions in the military or civil department of the army, and enrolled volunteers classed as effectives, firemen and enginemen, clergymen and ordained ministers, couriers and licensed ferrymen, shall be exempted from statute labor, unless they are assessed for a sum over one thousand dollars, in which case they shall be liable in respect to their property for the excess over that sum, but shall" not be liable to the poll tax, and firemen and enginemen certified as such by the clerk of the peace shall be absolutely exempt. 6. Property in the hands of executors, administrators, trustees, agents, guardians and women, over one thousand dollars of assessed value, shall be liable in respect to the excess at the same rate of taxation as other property. 7 The surveyor may require any person owning a horse or ox team or teams to send such team or teams properly yoked and harnessed, with a driver or drivers and a cart, to the extent of one-half the labor such person is required to perform, and every days labor of such team and driver shall count for two days. 8. The surveyor may require the whole amount of statute labor imposed under this chapter to be performed within a period of eight days. 9. A day when mentioned in this chapter shall be eight working hours. TITLE XVIII.] HIGHWAY LABOR. 227 10. The surveyors and commissioners shall cause to be Chap. 62. summoned the persons contained in their lists to labor on Timeofper- the highways at the most seasonable time between the forming Tabor, first day of April and the fifteenth day of September, ex- cept in the counties of Richmond, Inverness and Victoria, in which the statute labor shall be performed between the first day of May and the fifteenth day of October in every year, seed time and harvest excepted, by giving them six Notice. days notice of the time and place where they are to be employed, and of the tools to be brought for such labor, the notice to be given either by the surveyors or commis- sioners or by any person by them authorized and to be left verbally or in writing with some person of the age of discretion at the usual place! of abode of the party ; and at the time and place appointed, the surveyors or com- missioners shall attend and oversee the persons so sum- moned to labor in making and repairing the highways and bridges in the most useful manner during the num- ber of days required by this chapter. 11. Every person liable to perform labor under this Absentees. chapter who has been duly notified, but who may have left the district and shall be absent therefrom during the time appointed for the performance of his labor, and shall not have provided a sufficient substitute or paid the com- mutation therefor as hereinafter prescribed, or shall not adduce satisfactory proof of his having performed or com- muted or otherwise paid for his statute labor in some other district, shall if he shall return to his nsual place of abode within the year pay fifty cents for every day's labor to which he was liable. -12. In case a hiarhwav shall become obstructed or a obstructions T.TTT T ■ ^ 1 TT tiOVT removed. bridge broken down or carried away or a road rendered impassable by any miforeseen cause, except by the falling or drifting of snow, the surveyors of highways or com- Hiissioners of streets, under the' direction of two justices of the peace, shall notify such persons within the district as may be deemed necessary to attend immediately, either hj themselves or with their teams, as may be considered advisable to remove the obstructions or make such repairs upon the highway or bridge as may by the justices be considered absolutely necessary to render the same pass- able ; and every person so attending and labouring shall be allowed for the labor by a reduction of the like num- ber of days from the labor to be by him performed under -this chapter, either for that or for the subsequent year, as the same may occur before or after the time limited for the performance of highway labor in the district in the same manner and to the same extent as if the labor had been performed at the usual time ; and every person duly notified to attend and labor under this section who shall neglect to ^P sp shall be JiaT^le to the same forfeitures as if 228 HIGHWAT LABOR. [PAET I. Chap. 62. Commutation. Forfeiture. Residents on islauds. Power of ae.'S- sions for work on particular roads. Surveyor mny alter road with consent of two justices. Brealjing roads in winter. Forfeiture. Proviso. Return of sur- veyors and commissioner. he had neglected to attend and labor at the regular time, such forfeiture for each day when paid to reckon for one day's labor of such person under this chapter. 13. It shall be lawful for any person liable to perform labor hereunder to commute his labor on the payment to the overseer or commissioners on or before the day appointed for the performance of «uch labor, fifty cents for each day's labor which he is liable to perform ; and the overseer or commissioners shall receive such commu- tation at any time within t^ree days after the day appointed for the commencement of the labor, but the overseer or commissioners may in their discretion accept labor or the commutation within the period last named. 14. Every person duly notified who shall not labor agreeably to the notice or tender the commutation therefor as directed in the last section shall forfeit sixty cents for every day's labor to be by him performed. 15. 'No person residing upon an island whereon there are a,nj highways upon which the performance of labor under this chapter may be enforced shall be obliged to work or furnish any labor hereunder upon the main land or be liable to any penalty for not so doing ; but every person so residing upon an island and liable to perform labor under this chapter, shall perform the same upon some highway or bridge on the island ; and where the island shall be connected with the main land by a cause- way or bridge such portion of the labor as may be required to keep the causeway or bridge in repair or to rebuild the same shall be performed thereon. 16. The general sessions may grant permission or direct' in writing persons to perform the labor on such road as they shall direct. 17. The surveyor of any highway with the consent of two justices of the peace and the owner of the land through which such alteration is contemplated, may alter any road within the district of which he is surveyor, and make a return of the same to the clerk of the peace, in order that the same may be recorded. 18. The surveyors and commissioners shall as often as may be necessary during the winter order every person liable to do statute labor to work with their shovels, horses, oxen and sleds upon the highways, in order that the same may be rendered passable ; and every person so liable not complying with the order shall for every omis- sion forfeit seventy cents, — but no person shall be obliged to furnish more than two days labor of himself and team for any one fall of snow or work in any case when the fall or drift of snow shall not exceed twelve inches in depth. 19. Every surveyor and commissioner of streets shall annually on or before the firgt day of the sessions, which TITLE XVIII.] HIGHWAY LABOR. 229 shall happen next after the time herein limited for the Chap. 62. performance of highway labor, make a true and faithful return in writing under his hand to the clerk of the peace of the labor performed by each, and shewing the commutations and tines by him received and the expendi- ture thereof and the amount of moneys then in his hands, which latter the surveyor or commissioners shall at the same time pay over to the clerk of the peace, to be ex- pended upon the roads under the direction of the sessions. 20. When- the owner of property liable to assessment when owner for statute labor resides in another district the labor shall JTistrfe^tfiw'^ be performed or the commutation paid in the district property. where such person resides. 21. The general or special sessions called for the pur- proceedings to pose shall appoint a justice of the peace, or other suitable makeuproii. person in such electoral district with whom a copy of the assessment roll for that district shall be lodged, such copy to be furnished by the clerk of the peace who shall notify the surveyors of the persons with whom such roll is lodged, and shall require them to meet with such person at a time and place therein specified and make out the lists of all persons liable to perform statute labor within the limits of each surveyor and the number of days which each person shall be liable to perform ; and the sessions shall make such regulations to secure the due notification of the surveyors as to them may seem proper, and two days labor shall be remitted to the person with whom the assessment roll is so lodged. 22. All monies collected by surveyors of highways and Expenditure of commissioners of streets shall be expended by tender and ™°'i'«-'- contract or by public auction after three days notice in writing posted in at least tw9 of the most public places in the district, unless in the opinion of the surveyor or com- By day's wori< missioner it would be more advantageous to the public *° ^® attested. that such expenditure should be by day's work ; and in cases of expenditure by day's work the surveyor or com- missioner shall make oath to their accounts in the same form as in the expenditure of government road money. 23. Each surveyor and commissioner who shall by penalty on sur- neglect or misconduct cause the loss of any statute labor ^»y°^i°^^^e- shall be liable to pay double the amount of such statute labor, to be recovered as debts of that amount are now recoverable, such amount to be proceeded for within two How recovered years, and when recovered to be applied as follows : one- ''"'^ *pp''«<'- half for the roads within the county or district, and one- half to the prosecutor. 24. Every surveyor or commissioner for any other Penalty. neglect of duty shall be liable to a penalty of eight dollars to be recovered and applied as in the last preceding section. 230 HIGHWAY LABOR. [part I. Chap. 62. Pay of survey- ors. Forfeitures by minors how re- oovered. Forfeitures how recovered and applied. Form of returns General inspec- tors. Blank forms how furnished. Return of clerks of peace. Clerk of peace to prosecute surveyors. Pictou town exempt. Counties ex empt. 25. The surveyor of statute labor shall retain out of the monies in his hands the sum of one dollar for each and every day which he is obliged to attend on the road over and above the number of days which he is liable to per- form under this chapter. 26. All fines and forfeitures incurred by minors under this chapter may be recovered from the parents, masters or guardians of such minors with whom such minors reside or who have a right to receive their wages in the man- ner provided in the next section. 27. Forfeitures under this chapter shall be sued for and recovered by the surveyor or commissioners by their name of office as surveyor of highways or commissioners' of streets for the place for which they have been appointed, or in the individual names of them or any of them, or by and in the name of any person who will sue therefor, and in any case in the same manner and with the like costs as if they were private debts, and when recovered shall be applied by the survej'or or commissioners to the repair of the highways. 28. Returns of statute labor shall be made in the form in the schedule hereto annexed. 29. The general sessions in each county or district may once in each year appoint one or more general inspectors of statute labor, whose salary and duties shall be fixed by such sessions. 30. Blank forms of surveyor's returns of highway labor shall be furnished from the provincial secretary's office and forwarded to the clerks of the peace on application made for that purpose ; and the clerks of the peace shall on or before the first day of January in each year make and return to the provincial secretary's office an abstract of the returns of such surveyors of highways. 31. It shall be the duty of the clerk of the peace to prosecute delinquent surveyors for neglect or breach of duty under sections twenty-three and twenty-four of this chapter. 32. So much of the town of Pictou as is within the limits of the commissioners of streets shall be exempted from the operation of this chapter. 33. This chapter shall not go into operation in the counties of Lunenburg, Cape Breton, Inverness, Victoria, Cumberland, Digby, Queens, Richmond, Halifax^ and Kings. TITLE XVIII.J COMMISSIONERS OF STREETS. SCHEDULE. County of 186 Return of Statute Labor for Road District, No. , named 231 Chap. 63. Names of parties liable for statute labor. 1! Commutation Fines collected. Fines not collected. Dole. eta. Dols. cts. Dols. cts Account of expenditure of monies collected from commu- tations, fines, &c., as per foregoing return. Names of laborers. Days men. Days with team. Rate per day. Dols. Contracts & materials. N. B. — In case any portion of tlie labor is performed by contract, the date, name of the contractor, and particulars of the contract to be set forth in the right hand column. CHAPTER 63. OF COMMISSIONERS OF STREETS. 1. The iurisdiction of the commissioners shall be confi- Jurisdiction of T , ,1 1- ., rt n ■ J.1 J. • J. commissioners ned to the limits following, that is to say : defined. FOR MAITLAND. From Richard Anthony's east line to the Five Mile River, and along the Kennetcook road to Rocky Brook. FOR WINDSOR. To such parts of the town as extend from Smith's island 232 COMMISSIONERS OF STREETS. [PART I. Chap. 63. to the northward and eastward as far as the bridge over the Trecothick creek, on the main rqad leading out of the town of Windsor, as far as the church, and on the south- ward and westward to Falmouth ferry. FOR BRIDGETOWN. "Within the bounds following, that is to say: beginning at the western boundary line of the late William Euffee, one half a mile to the northward of the Granville main road as now situate, thence westwardly until it meets the eastern boundary line of the late Henry Troop, thence southwardly until it meets the Annapolis river, thence by the course of the river to the western line of William Ruffee, thence northwardly the course of that line to the bound first mentioned. FOR ANNAPOLIS ROYAL. To such parts of the town as extend eastwardly to the intersection of the main road to Halifax, by the old road leading to the Dalhousie settlement, southwardly to the General's bridge, westwardly to Allen's creek, and north- wardly to Hog Island, including the same. FOR DIGBT. To all the roads and streets which are comprehended within a circuit of two miles extending from the court house in the town of Digby in every direction. FOR LIVERPOOL. To such parts thereof as extend from Fort Point by the western side of Liverpool harbor to the bridge crossing the main road leading to the falls near More's tan-yard, thence south-west one mile, thence south-east one mile, thence north-east until it strikes the harbor of Liverpool, and thence by the harbor to Fort Point. FOR MILTON. Beginning on the eastern side of Liverpool river at a bridge called Salmon Island bridge, thence running at right angles to the river eastwardly half a mile, thence northwardly parallel to the river until it comes opposite to Thomas Hetherington's house, thence running one mile and a quarter on a course about north forty-five degrees west, in the direction of and past the house of Joseph Ford, junr., including such house, thence southwardly parallel to the river until it comes opposite to the residence of Free- man Tupper inclusive, thence to the river, thence down the river to Salmon River bridge. TITLE XVIII.] COMMISSIONEKS OF STREETS. 233 FOR PORT MEDWAT. ChAP. 63. From the Western Head to South "West Cove, and ex- tending back from the river one mile. FOR TUSKET VILLAGE. From the court house in Tusket, to extend one mile in every direction. FOR LUNENBURG. ' Within such parts of the town as extend eastward to the southwest angle of the garden lots nearest to the town, west to the road leading to Burn's tan-yard, and north to the bridge in the rear of the town. FOR CHESTER. To the town plot. FOR DARTMOUTH. Within the distance of one mile, measured in a south' wardly, eastwardly and northwardly dire3tion, from the public landing or steamboat company's wharf. FOR PICTOU. • On the west by the west side of the Town Gut, on the east by the west side line of the farm lately occupied by the late David Lowden, on the south by the harbor of Pictou, and on the north to the rear line of the original lots laid out and fronting the harbor. FOR NEW GLASGOW. To such part as is comprehended within the bounds following, that is to say : — To be bounded on the south by a line running on the south line of the property of the widow of Alexander Fraser, deceased, and extending eastwardly and westwardly to the east and west lines and boundaries hereinafter mentioned ; on the north by a line running on the north line of the property of John Rose, and extending eastwardly and westwardly as hereinbefore mentioned ; on the east by a line running on the front line of Edward Graham's house, and extending northwardly and southwardly to the north and south lines hereinbefore mentioned, in a parallel course with the river ; and on the west by the road leading from the Albion mines to the point. FOR GUTSBOROUGH. To the town plott 30 2s4 commissioners of streets. [part 1. Chap. 63. for Sydney. To the peninsula of Sydney, extending to the southward and eastward to Fresh Water River Creek, the old Saint Peter's road, and thence in an eastwardly direction to Copitt's mill brook, and thence to be bounded by the brook until it meets the waters of Malony's Creek. FOR TRURO. To the village of Truro, in the county of Colchester, within the following limits ; bounded north by the line between Truro and Onslow ; west by a line at right angles thereto, passing by the presbyterian meeting house, so as to include the road from the presbyterian meeting house to the board landing ; south by a line parallel with the first line, and to run one mile south of the court house, and east by a line parallel with the west line, and to run along the east line of the lane called David Fulton's lane, so as to include WilHam Eaton's lane ; the east boundary line to extend northwardly the corner of said lane to the Onslow town line. FOR NEW CALEDONIA. From Jacob Sturk's west line, west to William M. Weatherspoon's west line, bounded south by the Anna- polis river, and running ngrth half a mile from the main road. Sections appii- 2. The subscqueut provisions of this chapter shall of^HaUfax^ ''''^ cxtcnd to the city of Halifax and the commissioners of streets therein, unless where specifically excepted. Clerk and recei- 3. The commissioncrs shall appoint a clerk and receiver lubdFv'isim^of of monics, and subdivide their districts and assign a part districts. .J.Q Q^Q-]^ commissioner. Duties of com- 4. The Commissioners shall remove all incumbrances upon the streets, prevent encroachments thereon, make repairs, alterations and improvements therein as required ; open and make new streets when authorized, make and repair bridges, and cause to be observed the laws touching the streets and bridges, or the work to be performed thereon ; and especially shall call out, sue for, levy and receive from the inhabitants liable to perform highway labor the monies, services, highway work and penalties and composition therefor, due, payable or to be performed by them ; and shall prosecute for offences committed against the laws relating to highways and sue persons holding monies appropriated to the repair of the streets, or not paying any penalty appropriated thereto. Accounts of 5. The commissioners shall keep an exact account of monies received by them and services performed under their direction ; and shall under a penalty of twenty dollars missioners. commissioner. TITLE XVIII.] COMMISSIOKERS OF STREETS. 235 annually on or before the first day of the sessions which Chap. 63. shall happen first after the time limited for the performance " of statute labor, render under their hands to the clerk of the peace, to be laid before the sessions, a general, regular, and fair account in writing of all monies received and paid by them as commissioners for the past year, to the end that the same may be audited and passed by the sessions. This section not to extend to the city of Halifax. 6. The commissioners shall from time to time cause the Further duties- streets within their divisions to be cleared, repaired, raised, ers.°™ sunk, altered or paved, as they may deem proper, and may also cause to be dug and carried out of or brought into the streets, materials from the shores of the harbors, doing as little injury as possible in any case to the proprietors of the soil, and may employ and pay boatmen, carts and laborers, as they may judge conducive to the accomplishing the designs of this chapter ; and may also make contracts for the repairing and paving of the streets ; and may com- pound with persons by the year for such sum in advance as they may dftem reasonable for the proportion of highway labor or payments to which such persons may be liable ; and may put up bars and fences to shut up streets while undergoing repairs ; and may raise, sink, alter or new lay drains, water-courses, pipes and sewers, as they may think proper, causing as little detriment to individuals as the case will admit of ; and may cause the course of gutters, water-courses or channels, running in or through the streets, to be altered as they shall think proper. T. Persons residing within the foregoing limits respec- Fine for neg- tively, shall keep the gutters and streets before the houses, guttol and'^'^'' buildings or land inhabited or occcupied by them, free f/pre^m^sl™"* from du't, filth and nuisance of every kind ; and whenever <='<^™- any incumbrance or nuisance shall be found in any of the streets the person before or nearest whose house, building or land the same shall be, shall forfeit four dollars and also pay the expense of removing the same ; and any commissioner may cause the removal thereof without giving notice to the owner, or being in any way answerable therefor; but no person shall be liable to this penalty unless he shall have placed the nuisance or incumbrance in the street where founds or not having so placed it shall suffer the same to continue twenty-four hours. 8. Persons by leave of the commissioners may place in Persons butid- the streets materials for building, not to include ships, and strS'foT""^^ erect posts, bars or enclosures for securing such materials, ^Jafs"^ ™"'^" and continue the same for such time as the commissioners may give leave and in manner as they shall direct, and not longer or otherwise on pain of forfeiture. 9. The commissioners may cause wells to be dug and weiisand 1 1 11 -'I n Tin pun^ps, now pumps to be placed therem, in the streets where they snali provided, judge necessary and convenient^ in manner as they shall du'ect. 236 COMMISSIONERS OF STREETS. [PART I. Chap. 63. 10. The commissioners shall cause all things belonging Nuisances and to any building or cellar or to any ground or enclosure uSbfeTo'™-''"'^ thereof, which may occasion any nuisance, encroachment raovai. or annoyance in any street, to be removed or altered in manner approved by them or their surveyor ; or if it can be done without particular inconvenience to ther public, may suffer the same to remain upon the proprietor giving security that it shall not be repaired or rebuilt, and also paying to the commissioners a reasonable annual ground rent for the part of the street encroached on during the continuance of the encroachment. Line of streets, n. Persous intending to build upon or close to the iu'c^l°otnew line of a street shall before digging a foundation or begin- buiidings. uing the building apply to the commissioners to cause the line of the street to be defined and laid out, and shall defray the expense of a surveyor if necessary to employ one, and shall dig the foundation and erect the building within the line avoiding any encroachment ; and if any person shall erect a building upon the line of the street with- out making such application and having theline so ascer- tained, he shall forfeit ten pounds and shall also remove the encroachment or otherwise the commissioners may remove the same or take the steps by law allowed in cases of common nuisances. Lines settled by 12. When the Commissioners shall have proceeded to (iisputerreturn ascertain the line of the street on the application of any how confirmed. p^j-gQ^ about to build there*on, and he shall be dissatisfied with the line pointed out by the commissioners, a judge of the supreme court shall upon application of either party issue a precept to the sheriff or his deputy, to summon a jury of twelve disinterested freeholders to meet at some convenient day therein mentioned to view and lay out the line ; and the jury shall have an oath administered to them by the sheriff or his deputy, well and truly to lay out and establish the line of the street according to their best judgment, and the witnesses tendered shall be sworn by the sheriff or his deputy ; and if the jurors or either party require it a new survey of the line shall be made, and the sheriff or his deputy shall make a return forthwith under the hands of himself and the jurors to the judge, who, if he shall approve thereof, shall confirm the return, and the same shall be filed in the office of the clerk of the peace ; but if the judge shall not approve of the return a new precept shall be issued and further proceedings had thereon in manner prescribed as to the first precept and so on until a return be confirmed ; and the judge shall direct how and by whom the expenses of the proceedings shall be paid, and the same shall be taxed by the judge and shall o •, , X XX not exceed forty dollars. Soil of streets to -.o-x-r ini i n .io .ii be broken only Id. JN pcrsou Shall break up the soil of a street with- m vmtingTfine out first making applic9,tioft to the comnaissioners in for oifencea. TITLE XViri.] COMMISSIONERS OE STEEETS. 237 writing, specifying the purpose for which such breaking Chap. 63. up is required, and obtaining their permission therefor in writing ; and the commissioners may impose such terms upon the person applying as the security of passengers shall appear to them to require ; and any person acting contrary to this section or to terms imposed by the com- missioners shall for every offence forfeit twenty dollars. 14. Every person who shall drive any carriage or ride or^idSg'^on^"^ over a side path or roll or place heavy articles over or on side path. the same to the injury or obstruction of the side path shall for every offence forfeit not less than one nor more than eight dollars. 15. The whole of the bridge over .the Annapolis river AnnapoUs river at Bridgetown shall continue under the charge of the char|t ofcom- commissioners there, whose duty it shall be to see to the ™'=^'°''®''=- proper keeping and repair thereof; and they shall take such measures for preventing injury to the bridge and for bringing to punishment persons guilty of wilfully injuring the same as to them may appear expedient. 16. The court of general sessions are hereby em- getoffdisSs. powered to set off by limits, districts within their counties, and to declare what number of commissioners of streets shall be appointed for each district in manner following : Appointment of ,1 -.'^ \ 1 11 1 1 1 1 ji 11- commissioners. the grand jury shall recommend double the number being residents in such districts, of whom the sessions shall select one-half, one of whom shall annually retire in the order in which his name stands on the recommendation list handed in by the grand jury, and upon such retire- ment two other residents shall be recommended in like manner, one of whom shall be selected by the sessions to vacancies, how supply the vacancy created by such retirement, and in ^"^'^' case of the death, continued absence, or refusal to serve of any such commissioners, a special sessions may fill up such vacancy, subject to the confirmation of the grand jury and the general sessions at their next meeting ; , and any person appointed under this section who shall neglect his duty, or after notice of such appointment shall refuse or neglect to be sworn into oflace within fourteen days, shall forfeit and pay a fine of eight dollars. 17. The sessions in setting; off districts may include Bridges over o 1/ rivers &c. di- within their limits any bridge now or hereafter to be built Tiding town- over any brook, stream or river, dividing any districts or '^ ^^^' townships, and may place such bridge or any part thereof under the charge of the commissioners having supervision within such districts. 18. Upon being sworn to the faithful discharge of their ^{'"/chaTer to duty all the provisions of this chapter shall apply to the apply to com- commissioners to be appointed under the seventeenth ™"'''^°°^''^- section. 19. Sections fifteen and seventeen shall not apply to Sy o'fXu&x- the city of Halifax. 238 KOAt) EXPENDITURE. [PAM I. Chap. 64. 20. When vacancies of commissioners shall occur in Vacancies how the Several districts or villages in the first section named filled up. ^i^Qj g]jj^i^ ^g filled up and supplied under the seventeenth section. Powers of com- 21. The commissioncrs shall have all the powers hy law vested in the surveyors of highways, and no surveyors of highways shall have any powers within their jurisdic- tion. Money and 22. Monics and forfeitures payable under the fore- fines, how re- . . i r- t t i ■ i covered and goiug scctious may DC sucd lor and recovered by the "^^ '° ' commissioners in their name of office as commissioners of streets for the place for which they have been appointed, or in the individual names of them or any of them in the same manner and with the like costs as if they were private debts, and when recovered shall be applied by the commissioners to the repair of the streets or other the purposes of this chapter. Notice of action 23. Wo actiou shall be commenced against the eom- mUisioners; li- missioncrs Or pcrsous acting under them until twenty nutation. ^^^g jjQ^;i(;e in writng shall be given to one or more of the commissioners, nor after six months next after the act committed for which the action shall be brought, and every such action shall be laid and tried in the county within which the commissioners have jurisdiction. Definition of 24. The word "commissioners" when used in this chapter shall include the commissioners of streets or the major part of them within their respective jurisdictions, unless otherwise expressed or repugnant to the sense ; and the word "streets" shall include highways, lanes and bridges. terms. CHAPTER 64. OP THE EXPENDITURE OF MONIES ON THE ROADS. Commissioners 1. The govcmor in couucil shall annually before the owappome . £f^ggjj.(;j^ ^^ij of May, and thereafter in cases of necessity, appoint commissioners for superintending the expenditure of monies granted for the making and repairing of roads and bridges, and may remove them at pleasure and appoint others in their place ; and the provincial secretary shall furnish the receiver general with a list of the names of the commissioners and the sums to be by them expended, and shall give the receiver general notice of alterations made in the commissions, and shall, within twenty days after the appointments, have the commissions and the bonds to be , entered into by the commissioners, where required, trans- mitted ready for execution. TITLE XVIII.] ROAD EXPBNDITUKK. 239 2. The commissioners, when the amount to be expended Chap. 64. shall exceed eighty dollars, shall before entering upon the commissioners duties of office, give security by bond, with two sureties to sum''/over^ the satisfaction of two justices of the peace for the county eighty dollars. in double the amount of the sum to be by them expended, faithfully to lay out and account for the money according to law ; and the justices shall certify their approbation and the sufficiency of the sureties upon the back of the bond. 3. The receiver general shall retain in his hands, where sums under the amount shall not exceed eighty dollars, the whole, and no^t t^beVIwn in other cases two-thirds of the amount to be expended, oTCTtKlm'i until the whole sum shall have been duly laid out. one-third only. 4. The monies shall be expended after sale bv auction Money how to or by tender and contract, unless it shall appear to the accounts, form commissioner that the same or parts thereof cannot be so °^ °*"'' *''■ advantageously expended in that manner as by day's work, in which case the monies or parts thereof required may be expended by day's work ; but the commissioner who shall expend any monies by day's work shall render an account thereof in writing under oath to the receiver general, the oath to be administered by a justice of the peace without fee, and to be as near as may be as follows : "I, A. B., do swear that the annexed [or foregoing'] account is just and true, and that the monies by me expended have been fairly and honestly applied for the purposes for which they were granted ; that I procured the best labor in my power to procure, and at the lowest rate of wages, and that the day's work charged in the account has been, in my opinion, more advantageous to the public than if the expenditure of the sum had been made by public sale or by tender and contract. (Signed) A. B., commissioner. Sworn to at , this day of , 18 — , before me. _ _ (Signed) C. D., J. P. 5. Before entering into any contract the commissioner contracts how shall give notice thereof by advertisement posted up 'for totofaTdwhrn ten days previously in the places usual for public notices '" ^^^ f"'fi"«d. in the county, and he shall receive sufficient security from the contractor for the performance of the contract within the time specified ; and he shall where the whole amount to be expended exceeds eighty dollars, pay the contractor as the work shall be proceeded in, monies on account, until one third of the amount of the contract shall have been paid ; but shall not pay the remaining two-thirds until the work shall be completed agreeably to contract. Contracts shall be made to expire on or before the last day of Septem- ber in the year in which they are entered into, except those for the opening of new roads and the improving such as have not been used for wheel carriages, and for erecting bridges which may be extended until the thirty-first day of October, and the contracts shall be as near as may be 240 EOAD EXPENDITURE. [part I. Form. Chap. 64. in the words following, and shall be binding on the parties thereto : "Articles of agreement made this day of one thousand eight hundred and , between A. B. commissioner of of the one part, and C. D. of , and E. F. and G. H. of , as sureties of the said C. D of the other part, as follows, viz. : the said C. D., E. E and Gr. H, agree with the said A. B. that the said C. D will on or before the day of next, in a good and workmanlike manner, well and sufficiently to the satisfaction of the said A. B. ; and the said A. B. agrees with the said C. D. that he, the said A. B., will pay unto the said C. D., the sum of in manner following, that is to say : one-third thereof from time to time as the work shall be proceeded in, and the remaining two-thirds when the work shall be completed according to this contract." 6. Where the sum to be expended on any particular work shall not exceed eighty dollars, it shall not be impera- tive on the commissioner to require the contractor to enter into the formal contract hereinbefore prescribed, but it shall be sufficient to make a memorandum in writing, which shall be binding upon the contractor and his surety for the due performance of the contract, and upon the commissioner for the payment of the monies agreed on. And the memo- randum shall be as near as may be in the words following : A. B. of hereby agrees with 0. D. of to Contracts in cases under eighty dollars. Form. perform, the following work, viz. ■ and to complete Return of com- missioner in cases of monies expended by contract. Oath. the same in a good and workmanlike manner, on or before the day of next. For the due performance whereof E. E, of hereby becomes surety for the said A. B. And the said C. D. as commissioner for the per- formance of the work hereby agrees with the said A. B. on the due performance of his contract, to the satisfaction of the said C. D. to pay him the sum of -therefor. Dated this day of 18 — . (Signed) A. B. e". e! 7. Commissioners expending any monies by contract shall make return under oath to the provincial secretary's ofELce, stating the amount of the different contracts entered into by them ; the oath to be administered by a justice of the peace without fee, and to be as near as may be as follows : "I, A. B., do swear that the contract referred to in the annexed [^or foregoing'] account, has been faithfully executed, and the money voted for the work has been laid out pro- perly, and to my entire satisfaction. (Signed) A. B. Sworn to at ■ me. — this day of ■ (Signed) 18— J before C. D., J. P.' TITLE XVIII.] ROAD EXPENDITURE. 241 And they shall also make return of tlie contracts or copies Chap. 64'. thereof when exceeding forty dollars. 8. If two justices of the peace for the county shall ^lyierMy^ certify to the governor that the work upon any road or nSitwun '^ bridge hath not been faithfully performed, or that any performed; pro- contract hath not been faithfully executed, the commis- upon."^"^ sionei' shall not draw the money entrusted to him to expend, or the remaining two thirds thereof, as the case may be ; but the general sessions for the county, or a special sessions to be called for the purpose, shall inquire into the expendi- ture of the money, the performance of the labor and the execution of the contract where one has been entered into, notwithstanding the same may have been performed to the satisfaction of the commissioner, and shall certify " to the governor the particulars of the expenditure and the sum which in their judgment ought to be paid to the commissioner, which sum only the commissioner shall receive from the treasury. 9. "Where it may be necessary or expedient to procure JrovTded^whCTe materials for the repair of the roads the commissioner, if the owner of the f.,TT Ti- nil i? soil is absent or trom the absence or obstmacy oi the owner or possessor oi obstinate. the soil, no agreement can be made with him, may enter with workmen, carts, carriages and horses, upon any lands, and therefrom for the repair of the road, dig up and carry away stones and gravel, and cut down and carry away trees, bushes, logs, poles and brush wood ; and the damage done thereby shall be appraised by three indifferent free- holders, nominated by the nearest justice of the peace for the purpose ; and the sum appraised shall be paid by the commissioners to the owner of the soil, if demanded, within three months after. 10. There shall not be employed in any one day more Number of la- -L «/ •' *' borers under than forty laborers to work under one commissioner, and one commis- the wages of laborers shall be paid in cash only. how^pliZ^^^^' 11. For every ten laborers daily employed hj one com- Foreman may missioner, the commissioner may employ a foreman who ^ »pp°'°'ed. shall work with the laborers and take charge of those put Under his direction, and shall work with and superintend the laborers generally in ,the absence of the commissioner. 12. Commissioners shall be entitled to charge and °??l'?'?£°°?,''.^ , o per centageana retain after the rate of five per cent on the monies to be pay; pay of 1-1 TT TT-j I n_p men and teattls; by them expended, and also ninety cents per day tor working hours- every day they shall have been actually employed super- intending day laborers, and shall have had at least ten laborers at work throughout the day. No foreman oi' laborer shall be paid more than ninety cents per day. No owner of a team, consisting of a cart, driver and two horses' or four oxen, shall be paid more than two dollars per day; and of a team consisting of a cart, driver and one horse or two oxen, more than one dollar and fifty cents per day. No owner of a plough shall receive more 31 242 ROAD EXPENl)ITrRE. [PAE* I. Chap. 65. When employ- ed on break- waters, &c. Encroach- ments and in- cumbrances, how provided against. Work to be completed 20th August. than forty cents per day unless under special circumstances set forth in the affidavit to the account,^^the day to consist of at least ten working hours ; and the foregoing wages to be paid only where suitable day laborers, teams and drivers, cannot be had at lower rates for cash. 13. Laborers employed in erecting breakwaters and in clearing out rivers, or in other public works of a similar nature, shall be entitled to receive a sum not exceeding one dollar per day for their labor while so engaged. 14. The commissioners shall examine the breadths of the roads within the limits of their commission ; and if it shall appear that any encroachment or incumbrance hath been made or placed upon the same, shall forthwith give notice to the owner or possessor of the land adjoining, that unless the road be opened and cleared to its proper width, within thirty days, the person who shall have caused or continued the encroachment or incumbrance will be j)rosecuted as the law directs ; and the commissioners shall make an accurate return of the breadth of the roads and of incumbrances thereon to the supreme court or sessions for the county at its next sitting after their appointment, in order that such proceedings may be thereupon had by the court as may be deemed proper to carry into effect the laws in relation to encroachments and incumbrances on the highway. 15. Except in cases of emergency or in the opening of new roads the commissioners shall complete their work before the twentieth day of August in each year. OHAPTEE 65. OF THE PRESERVATION OF ROADS. Fine for altera- tions or en- croachments. Justice, on his own view, or the oath of a witness, may fine for incum- bering roads; fine how levied. Side paths pre- served fcy order of sessions. 1. If any person shall illegally alter or encroach on a public highway or private road laid out and established hj law, he shall forfeit twenty dollars. 2. A justice of the peace on his own view or on the oath of a witness may impose a fine not exceeding four dollars on any person who shall encumber any road or bridge by placing anything thereon, to be levied by war- rant of distress on the offender's goods, or in case the offender shall not be known by sale of the incumbrance, the overplus if any being retained for the owner when discovered. If the incumbrance shall be continued it shall be deemed a new offence. 3. The sessions may make regulations for preserving the side paths of any public highway, except within the TITLE XVIII.] PRESERVATION OF ROADS. 243 city of Halifax, from being injured; and every person Chap. 65. guilty of a breacli of the regulations shall forfeit not less ~ than one nor more than ten dollars. 4. If any person shall destroy or injure any trees or Pme for de- underwood growing upon the land lying between any *o™^betweer^' river, lake or arm of the sea and any public highway mys! """^ '"®'^' running within thirty feet of the margin thereof, he shall forfeit a sum not exceeding eight dollars. 0. If any person shall injure or destroy any trees or Koada near sea, underwood growing at any place where the bank shall not to bTta^il^red!"' be of greater width than twenty feet from the side line of the road to the waters of any river, sea or harbor, or shall from any place above high water mark where the bank shall not be of greater width than before mentioned, unless for agricultural purposes in a cultivated part thereof, carry away from the bank any earth or stones, or shall take from out of the bank where not of greater width than before mentioned any earth or stones near the roots of any trees or underwood, whereby the trees or under- wood shall be injured or destroyed, he shall forfeit for every offence eight dollars, and in default of payment or penalty. goods whereon to levy he shall be committed to jail for not less than ten nor more than thirty days. 6. All incumbrances found on the ditches of the roads incumbrances shall be forfeite'd and may be disposed of by the surveyor " ^' ^ ' of highways without any legal proceedings, and the pro- ceeds shall be applied by the surveyor to the repair of the road. 7. If o person shall ride or drive any horse at full speed Disorderly dri- or in a disorderly manner in the public street or highway J'°s-pena y, in any town or village. Persons violating this provision shall forfeit a sum not exceeding four dollars for each offence, to be recovered as directed in the sixteenth section. 8. 'No person shall trot or gallop any horse over a Bridges pro- bridge within or partly within this province of greater '°°'^'^- length than twenty-five feet. 9. Carriages on runners driven on the highway shall runnefs^to''be have affixed to the harness two good open bells or four drwra with good round bells, such as are commonly used in sleighs. 10. Carriages on runners used' for the conveyance of ^Y^'^* "^ °^'^. loads on the highway shall not be less than four feet wide "cts^^ from outside to outside. 11. No load of hay or sfraw of greater width than width of loads fourteen feet shall be drawn on any highway. 12. No unloaded sled shall have pointed stakes stand- not tota^™'^ ^ ing or frames or projecting pieces outside. pointed stakes, 13. Persons in driving upon the highway shall leave the centre or high: centre of the road on their right hand. on^the right. 14. Persons attempting: when driving to pass another Personspass- ■ 1 i-T ^1 T .. ,-P T J." ing m carnages carnage on the highway leading m the same direction to leave susft- shall leave a sufficient way open on their left h^^nd for tnettC' "" the carriage which they are about to pass. 244 SUPBRVISOES PUBLIC GEOUNDS. [PART I. Chap. 66. 15. Carriages standing on the highway shall not he cnrriages nearer the centre of the road than eighteen inches and on r.'rw'iSf^^^eigh- the proper side thereof. _ ^ ,^, , . teen inches of 16. Persous Violating any 01 the provisions oi the last Finl7foJ 0°-""^ eight sections shall for every offence forfeit tw6 dollars, and fences, when to in default of payment or goods whereon to levy shall be be prosecuted. (.Qj^^^^^^^g^ ^q jg^]\ fop qq-j; -^qj-q than forty-cight hours ; hut the prosecutions miist be commenced within forty-eight hours after the offence. How applied. 17. Forfeitures under this chapter not specifically ap- propriated shall be applied under the directions of the . sessions to the repair of ruads and bridges. CHAPTER 66. OF SUPERVISOES OF PUBLIC eEOUNDS. Supervisors- 1. The grand jury in each county or district shall on how appointed. ^^^ application of twenty freeholders of any township appoint six persons resident in such township, out of whom the sessions shall appoint three to be supervisors of public grounds, and the^ sessions, upon the recommendation of the grand jury, may remove them or any of them, and vacancies shall be supplied by the grand jury recommend- ing double the number of persons necessary to supply the same, out of whom the sessions shall appoint the number required, and the clerk of the peace shall keep a record of such appointments, removals and vacancies and the dates thereof; and such supervisors shall be a body corporate by the name of " the supervisors of public grounds for the township of ." Title of public 2. The legal title of and in all public parade grounds f ^vested in su- and public landings within the township, and of all com- pervisors. mous and other lands not belonging to the county or district at large, but which may be acquired or had for the general purposes and uses of the inhabitants of such township, and of and in all buildings thereon being and appurtenances thereto belonging, shall on their appoint- ment vest in the supervisors for the original purposes for which they were intended. Leases of, how 3. The supcrvisors may by direction of the grand jury to'to med?rent and sessious lease any such lands not required for public how applied, .^ggg fgp ^j^j period uot exceeding seven years ; and they shall annually render to the sessions an account of monies by them received for'rents and of expenses connected with the letting, to be audited by the grand jury and sessions and then filed in the office of the clerk of the peace ; and TITLE XVIII.] SUPERVISORS PUBLIC GROUNDS. 245 the balance of such rents after deduction of the expenses Chap. 66. shall be by the supervisors paid to the overseers of the poor for the township, or where there shall be more than one poor district in the township, then such balance shall be equally divided among the different districts and paid tothe overseers thereof respectively. 4. Nothing in the preceding sections contained shall l«°cJs and pio- extend to any place of divine worship, burial ground, ?raii tiilfopera- coUege, academy, school or any land thereto belonging, chapter!'"* or any land belonging to any religious congregation or society, or shall deprive any person of any right lawfully acquired, or affect any lands or buildings now vested in trustees. 5. Whenever the supervisors shall deem a road en- Encioach- croached upon or encumbered, and in all cases where a roads? ho™ doubt or dispute shall exist as to the true line of a road or proceedings in as to which side is encroached upon, the supervisors after oases of dispute ten days notice in writing to the parties in possession of the land on both sides of the road where the line is in dis- pute or the parties who may have caused the encroach- ment or incumbrance of the time and place at which they will investigate the matter, shall repair to the place where the encroachment or incumbrance shall be alleged to exist or the line be in dispute, and there inquire into the facts, and if necessary may then, or at a future day, have a sur- vey made of the road, and examine witnesses on oath, to be administered by a supervisor touching the matter ; and shall after completing the investigation determine and mark out the true line of the road and direct the same to be opened to the full width of sixty-six feet, or to any less width to which it may have been confined by its dedica- tion, and shall by order in writing direct and cause all encroachments or incumbrances to be removed to such distance as they shall determine on, but they shall not cause to be removed any building erected upon the road ; but where a building shall be found to encroach thereon they shall report the same to the next sessions, and the sessions shall make such order in relation thereto as may be deemed proper. 6. If any person shall not obey the order of the super- Fine for dis- visor or sessions delivered to him in writing within thirtv ?,?„®Z^"?,J'J.K'^" -1 ft ■• 1 i-f-ii/i " visoi s or &c o- days after receiving the same, he shall forfeit four dollars ; ^'°°^' °^'^'^^- and if the incroachment or incumbrance be suffered to re- main for a further space of twenty days after the imposition of the fine, the continuance shall be held a new offence, and shall subject the party to a further fine of four dollars ; and so in like manner shall every further continuance of the encroachment for twenty days be held a new offence, and the further fine of four dollars be imposed therefor. 7. The supervisors may apportion and order the pay- Expenses how , „,, ^ • -V .^f ,1 T T ■ borne and re- ment oi the expenses incident to the proceedings herein- oovered. 246 SUPERVISORS PUBLIC GROtJNDS. [part I. Chap. 66. Order of supo visor, how pro7e4. Record to be signed and filed Appeal from order. Costs of appeal how paid if or- der confirmed. "When order re- versed, costs how paid. Supervisors may mal^e or- der for widen- ing road. Proceedings to be had at ses- sions. before mentioned among and by sucb persons as sball appear advisable ; and the same shall be recoverable by the parties entitled thereto as if it were a private debt of the like amount. 8. In any suit under either of the two preceding sec- tions, the production of a copy of the order of the super- visors under their hands, or of the order of sessions under the hand of the clerk of the peace,'proof of the hand writing being in either case given, shall be good evidence of the order, and shall suffice to establish the claim of the plaintiff. 9. The supervisors shall make a record of their inves- tigations and order, setting out therein the lines of road by them established, which record shall be signed by them and be returned to the clerk of the peace to be filed in his office. 10. Any person dissatisfied with the order of the super- visors or of the sessions may appeal therefrom to the next supreme court of the county, where the matters in dispute shall be tried and determined by the verdict of a jury, if a jury shall be ordered by the court ; and pending the appeal, no further proceedings shall be had under the order. 11. If judgment on appeal shall confirm the order, then the cost of appeal shall be paid by the appellant, and having been taxed in the usual manner shall be recovered by execution. 12. If the order shall be reversed on appeal, the costs consequent thereon, as well as the expenses attending the making of the order, shall be paid in the first instance by the supervisors, but shall form a county charge, and be refunded to them, together with their own reasonable charges. 13. Where a road shall have been opened and used as a public highway, and the same although not encroached upon, has been originally laid off too narrow, or shall have been made public by use only, and the supervisors shall deem it proper to widen the same, they shall notify the parties in possession of the lands on both sides of their intention to widen the road, and that application for that purpose will be made to the next sessions. 14. The supervisors shall at the next sessions submit to the court their application for widening the road, stating the then breadth thereof and the width to which they propose to open the same ; and if they shall have made any agreement with the proprietors of the land as to com- pensation for land and fencing, shall at the same time submit it ; and if the court are satisfied of the propriety of widening the road, and shall approve of the agreement so made, they shall make an order for widening the road, specifying the breadth to which it shall be extended, and TITLE XVIII.] SUPERVISORS PUBLIC GROUNDS. 247 confirm the agreement made, wMcli order shall be final, Chap. 66. and the supervisors shall proceed to widen the road accordingly. 15. In case no agreement shall have been made, or the sessions may sessions shall not approve of the agreement, but shall be fi?e^ehoicie"s to satisfied of the propriety of widening the road, they shall 5u'bs°e'!^uent pro- appoint three disinterested freeholders, one to be nomi- oeedmgs. nated by the supervisors, one to be nominated by the possessors of the lands, or on their omission by the sessions, and the third to be nominated by the sessions ; and shall issue their precept to the three freeholders, directing them to lay ofi'and mark out the road to the width directed, in the way most conducive to the public good and least prejudicial to the proprietors of the lands. And all further proceedings in reference to the widening of the road, whether upon appeal or otherwise, shall be had in the manner prescribed by the chapter of this series, in regard to opening new roads or altering old ones, except that the propriety of widening the road shall not be in- quired into, and the damages appraised shall form a county charge ; but no fencing shall be paid for except as directed under the last mentioned chapter. 16. ISTo road shall be opened under the last three width of road, sections to a greater extent than sixty-six feet. 17. Where any road in a township has been open for ^j^P"orwfdthof the use of the public for twenty years and any doubt or road, how set- dispute has arisen as to the true line or width of such road, '^®''' and the supervisors of public grounds in such township shall deem it proper to determine such true line or width, they shall be at liberty to proceed as in the case of widen- ing roads under this chapter and subject to the like terms of compensation. sections thir- 18. Sections thirteen, fourteen, fifteen and sixteen of fifteen and six- this chapter shall not apply to the city of Halifax. app?y°o Halifax 19. The provisions of this chapter shall extend to roads Roads affected upon which grant of monies may have been made by the ^^ -'"^ chapter. legislature, to roads which have been open for the use of the public for twenty years, and to roads upon which statute labor may have been performed, except private or pent roads whereon the statute labor may have been per- formed by direction of the sessions, but shall in no case apply to roads which have been abandoned. 248 Chap. 67. BRIDGES AND PUBLIC LANDINGS. OHAPTEE 67. [part I. Old roads may be closed by sessions on petition; pro- ceedings pre- scribed. Parties who may be heard; appeal allowed. "Where owner of adjoining lands is dead, who to be considered the proprietor. OF CLOSING ROADS. 1. "Where a line of road has beeif altered and the old road has been abandoned by the public as a general thoroughfare, any of the proprietors of land adjoining the old road may by petition stating the facts and the names of all persons interested in the lands on either side of the road apply to the sessions to shut up or otherwise dispose of the same ; which petition shall be accompanied by an affidavit that at least thirty days' previous no.tice in writing of the application has been given to the parties interested, and posted up in two public places near the road ; and the sessions shall hear the parties applying, and their wit- nesses and also the parties notified, if they shall desire it, and their witnesses, and shall make an order either dis- missing the application or granting or modifying the same. Persons dissatisfied with the order may appeal therefrom within ten days to the next sitting of the supreme court, and the clerk of the peace shall thereupon return the pro- ceedings to the supreme court, who shall examine them, and if deemed advisable hear the parties appearing and their witnesses, and shall make order as shall seem right therein. The order of the sessions if not appealed from, and the order of the supreme court in case of appeal, to be conclusive. 2. Persons although not interested in lands adjoining or near the road and their witnesses may be heard against the closing or disposing thereof, and may appeal from the order of sessions. 3. If any land adjoining the road shall have been the property of a person deceased and be not divided among his heirs, the representatives of the deceased person and the guardian of his minor children, if any, and the person in possession of the land, shall for the purposes of this chapter be considered the proprietors. CHAPTER 68. Sessions to coh- trol public wharves. OF BRIDGES AND PUBLIC LANDINGS. 1. The sessions shall have control of all public wharves and public landings, and of all draw bridges, and also of the following other bridges, viz. : Lake Porter bridge in the county of Halifax, the bridge of Sissiboo River, in the TITLE XVIII.] FERRIES. 249 county of Digby and Bear River, dividing the counties of Chap. 69. Annapolis and Digby, which latter bridge, for the purposes of this chapter, shall be considered wholly in the county of Digby ; and the sessions may make orders for the pre- servation and proper keeping thereof, and may appoint persons to superintend the same, who shall in such case be sworn to the faithful discharge of their duties before a justice of the peace, and the sessions may affix penalties for the breach of any such orders not exceeding in any one case twelve dollars, and may also impose charges on vessels lying at, and goods landed on, such wharves or landings, and may direct the mode of recovery and appli- cation of such penalties and charges ; but nothing herein contained shall affect rights conferred by any act of incor- poration in relation to any such draw bridge, public wharf or public landing. 2. The sessions, upon the presentment of the grand jury, *■■*?"; '°A®. are authorized to cause draws to be made in any of the ™p*on p^es^nP bridges erected or to be erected over any of the rivers in ?j«°'°f s™nd this province ; and all such bridges so converted into draw bridges, shall be thereafter subject to all the provisions of this chapter ; but nothing herein contained shall authorize the placing a draw in any bridge built under any charter or act of incorporation. CHAPTER 69. OP FERRIES. 1. The sessions may establish ferries over harbors, bays, Pernes andfer- rivers and creeks within their counties or districts, and tibffshe°d Int agree with and grant licenses to ferrymen on one or both sefSons?''^ sides thereof, under the regulations and at the rates of ferriage by the sessions established or to be established. 2. Ferrymen shall keep safe and good boats or vessels i'"'y °^ ferry- in good repair and suitable for the ferry, and give ready attendance on the passengers according to the regulations. 3. Ferrymen not complying with the regulations or Fine fomegieot receiving more than the established rate of ferriage, or rilbmty.^"'^"'*'^ neglecting to keep boats or vessels or to give attendance as hereinbefore directed, shall forfeit for every offence not less than two dollars nor more than eight dollars ; and shall be further liable to an action on the case for damage by any person sustained from the neglect. 5. "When a ferry has been established and the ferryman Fine for inter- licensed, if any other person shall carry over the harbor, rym"an'r'priTi»" bay, river or creek, whereon the ferry is established, any ^^^^^' 32 250 RAILROADS. [part I. Chap. 70. person, cattle or carriage for hire, unless by consent of the licensed ferryman, or on his not giving due attendance, he shall for every offence forfeit not less than one dollar nor more than four dollars to the use of the person sueing ; and in default of goods whereon to levy, the person con- victed shall be committed to jail for not less than five nor more than ten days, to be in the execution expressed, unless the amount shall be sooner paid ; but if the licensed ferryman shall not give attendance pursuant to the regula- tion's, then any other person may supply his place and receive pay as if licensed until another shall be appointed. TITLE XIX. OF RAILEOADS. OHAPTEE 70. OF PROVINCIAL GOVERNMENT RAILROADS. Preamble. Railways to be public worlvs. Grades where to be made. Trunk line to be completed first. other lines. Part the First. "Whereas, by chapter one of the acts of eighteen hun- dred and fifty four it was declared that the construction and maintenance of a trunk line of railway from the har- bor of Halifax to the frontier of New Brunswick, with branch lines extending to the harbor of Pictou and to Victoria beach, will greatlj^ facilitate the internal trade of Nova Scotia, will develop her resources, enlarge her revenue, and open more frequent and easy communication with the neighboring provinces and states. 1. The lines of railway heretofore constructed and hereafter to be constructed under the provisions of. this chapter shall be public provincial works, and shall be made on such grades and in such places as the governor in council shall determine and appoint as best adapted to promote the general interests. 2. The line to be first completed shall be that which beginning at the harbor of Halifax and extending there- from in a northerly direction will form a common trunk for all the lines to be hereafter made under the provisions of this chapter. 3. After the common trunk shall have been so com- pleted the railways shall be carried on in such direction as shall be approved of by both houses of the legislature, and shall be designated by an act of this province or by resolutions entered on their journals. TITLE XIX.] RAILROADS. 251 4. The construction and management of railways in Chap. 70. this province shall be under the charge of one or more construction, commissioners, not exceeding three, appointed or to be commisaloners, appointed by the governor in council, v^ho shall hold office during pleasure ; but not more than one of such commis- sioners shall at any time hold a seat in one branch of the legislature— provided that this chapter shall not be con- strued to authorize the further extension of railways unless by concurrence of the legislature expressed by act or joint resolution. 5. The commissioners shall build such railways by biuf by tender tender and contract after the plans and specifications '"»'' contract. therefor shall have been duly advertised, and they shall accept the tenders' of such contractors as shall appear to them to be possessed of sufficient skill, experience and resources to carry on the work or such portions thereof as they may be willing to contract for ; but where the commissioners in any ease deem it for the public interest not to accept the lowest tender that may be made, it shall not be competent for them to accept a higher tender with- out the approval of the governor in council ; and where any tender is higher than in the judgment of the commis- sioners or of the governor in council it is prudent to act on, the same shall not be accepted ; and in such case the work shall be suspended for a time and new tenders advertised for, when the legislature or the governor in council shall deem it expedient to proceed. 6. The contracts to be so entei-ed into shall be guarded Sfe's fo'^'p^-"" by such securities and contain such provisions for retaining formance of. a proportion of the contract monies, to be held as a reserve fund for such periods of time, and on such conditions as may appear to be necessary for the protection of the public and securing a due performance of the contracts. 7. The governor in council may appoint a chief engi- cwef engineer, neer to hold office during pleasure, who, under the instruc- aSK'ti^t'of. tions he may receive from the commissioners, shall have the general superintendence of the works to be constructed under this chapter, and whose duty it shall be to measure the work done, and for which payment shall be claimed, — to report upon the lines to be selected — the permanence of the works to be designed or executed — ^the strength of the rails — the sufficiency of plant and rolling stock, — and the faithful fulfilment of the contracts which may be entered into. 8. No money shall be paid to any contractor until the ^^£[^^3° chief engineer shall have certii|ed that the work for or on account of which the same shall be claimed has been duly and faithfully executed, nor untjl such certificate shall have been approved of by the comroissioners — provided alway that such certificate ehall only be rgouired with respect to the extengigi^ pf th^ work;g beyon^ tneip present limitp, 252 BAILBOADS. [PART I. Chap. 70. 9, ITo member of the legislature shall hold or be Contractors a^ appointed to any office of emolument under the commis- bfmemberso" sioncrs or be a contractor or party to any contract arising the legisir.tine. out of the construction, management or working of the road or any part thereof. No government 10. No pcrsou holding & placc lu thc proviucial govern- bfr^to beTcra- ment or a seat in the legislature shall hereafter become oontracts?"""'' sccurity Or be answerable for the performance of any contract with the railway commissioners or of any work or engagement in relation to the railway. Lands required 11. The commissiouers or contractors are authorized termini! "'^'^ to cutcr upou and take possession of any lands required for the track of the railways or for stations, and they shall lay off the same by metes and bounds and record a de- scription and plan thereof in the registry of deeds for the county in which the lands are situate, and the same shall operate as a dedication to the public of such lands ; the lands so taken shall not be less than four rods nor more than six rods in breadth for the track, exclusive of slopes of excavations and of embankments, except where it may be deemed advisable to alter the line or level of any public or private carriage road or divert any stream or river, in which case it shall be competent for the commissioners to take such further quantity as may be found necessary for such purposes ; also, at each station a sufficient extent for depot and other station purposes ; provided always that, excepting at the termini or junction of the railways, the quantity so appropriated shall not exceed five acres. Powers of com- 12, The commissioncrs or contractors may enter with missioners to . •^itt deposit soil, workmen, carts, carriages and horses, upon any lands, and deposit thereon soil, earth, gravel, trees, bushes, logs, poles, brushwood or other material found on the line of railway or works connected therewith or for the purpose of dig- ging up, quarrying and carrying away earth, stones, gravel, or other material, and cutting down and carrying away trees, bushes, logs, poles and brushwood therefrom for Commissioners ^^^ making and repairing of such railway. Before enter- ic, must notify ing for the purposes mentioned in this section the commis- possessors of . *^ -*■ j , . i i i , . i the land &o. sioucrs Or coutractors or the other persons acting under them or either of them shall notify the proprietors or possessors of the lands, and shall carry out such purposes with as little injury as possible consistently with those objects. Construction of 13. It shall be lawful for the commissioners to make or roads, bridges, j. x • j n i , j Ac, over lands coustruct lu, upou, across, uudcr or over any land, streets, *°' hills, vallies, roads, railroads or tramroads, canals, rivers, brooks, streams, lakes or other waters, such temporary or permanent inclined planes, embankments, cuttings, aque- ducts, bridges, roads, ways, passages, conduits, drains, Alteration of P^^^^j archcs Or Other works as they may think proper. courses" 0° 14. Thcy may alter the course of any river, canal, brook, TITLE XIX.] EAILROADS. 253 stream or water course, and may divert or alter as well Chap. 70. temporarily as permanently the course of any sucli rivers, streams of water, roads, streets or ways, or raise or sink the level of the same in order to carry them over or under, on the level of, or by the side of, the railway, as they may think proper. 15. They shall have power to make conduits or drains Drains &a. con- 1 *'t 1 ^ TT ,... , .. veving water to into, through or under any lands adjoining the railway, or from laii- for the purpose of conveying water from or to the railway. ™''^' 16. In all cases under the twelfth section for entries yaiue of mate- upon lands and materials taken whether before or after the J'^fJf^J"^"^'^'^'^" passing of this chapter, the recompense for the injury to the land, the value of the earth, stones and gravel, and the trees, timber, brush and other materials dug, cut down or taken away for railway purposes, and for other damages to the proprietors or possessors, shall be referred to the deter- mination of three arbitrators, one to be chosen by the ofSltrakTrsI' proprietor or possessor, one by the commissioners or con- tractors or persons acting under them or either of them, and the third on the part of the county by some justice of the peace residing as near the premises as can conveniently be obtained to act and not interested in any question of damages ; and in case of the absence or neglect after due notice of either party the arbitrators on that part shall be named by some justice of the peace disinterested as afore- said residing as near the premises as conveniently can be obtained. Two of the said arbitrators may make an award, and the award shall be in writing, signed by the arbitrators making it. The arbitrators shall be entitled to a fee of one dollar, which shall be added to the damages and paid in the first instance by the commissioners, con- tractors, or persons acting under them. 17. The damages awarded shall be paid within one Damages tc, month with interest thereafter by the commissioners or ^ contractors or other party acting under them as aforesaid as the case may be ; either party including the arbitrator Appeal. appointed on behalf of the county, or any justice of the peace on behalf of the county, may appeal to the su^jreme court according to the provisions of section fifty-two. 18. If appeal shall not be asserted in twenty days after Damages, how the award the sum awarded may be sued for and recovered '■^°°^'^=^^'^- as debts of like amount are now by law recoverable. 19. The damages paid under the three last sections °jf™^f|^[g ^^ shall be chargeable on the county where the property lies county. and shall be assessed, levied, collected and paid to the commissioners or contractors pursuant to the provisions of this chapter. 20. Any party in whose favor an award shall have been Party may con- T 1 11 1 _pj_ 1 1 1 • • i? ii • sider award as made or shall hereaiter be made under provisions or tnis against county. chapter in respect of damages for materials taken for railway purposes, may elect to consider such award as an award against the county, 254 EAILROADS, [part I. Chap. 70. "When award filed to be coun- ty ohargo. Persons other thixn oontrac- tors &e, must furnish owners with written au- thority. Who raay be held liable. Fruit or orna- mental trees excepted. Monies paid for land to form county charije ; how assessed. Working of lines. Inspection of contract? nnd proceediugs of commissioners. Salaries of oifi- cers. Monies, how drawn. Accounts of commissioners •-audit of, 21. Upon sucli award being filed witli the county trea- surer with such election endorsed in writing thereon, and signed by the party in whose favor the same shall have been made, the same shall become a county charge in the same manner as if it had been first paid by the contractor under the provisions of this chapter. 22. Before any party other than the commissioners and contractors immediately under them shall be at liberty to enter upon private lands under the twelfth section, they shall be obliged to furnish the owner or possessor thereof or leave at his residence, a written authority from such commissioners or contractors authorizing such entry ; and thenceforth the owner shall at his option be entitled to consider any act to be done, and any liability to be incurred by the party so authorized as the act of the party himself or of the person or persons whose authority is so given. 23. ITothing contained in this chapter shall authorize the commissioners or contractors to cut down and carry away any fruit trees or trees planted or preserved for ornament. 24. The monies payable for such lands and fencing shall form a county charge, but in the apportionment of the assessment the sessions shall have respect to the rela- tive benefits derived from the railway by the several sections of the county, and shall apportion the assessment accordingly. 25. Whenever the railways or any portions of them shall be completed, it shall be lawful for the governor in council to make such arrangements as may be suitable for working the railways as one line by a com'mon manage- ment, or for working the trunk line and branches by separate commissioners ; such arrangements to be submit- ted to both branches of the legislature at the session then next ensuing. 26. The governor in council shall have power to inspect all contracts and proceedings of the commissioners, to ex- amine their accounts at all times, and to suspend the pro- gress^of the work until the next session of the legislature. 27. The governor in council shall in the first instance fix the rate of salary or compensation for the chairman and the other commissioners and the chief engineer, and shall approve of all other salaries to be awarded by the commissioners, subject in all cases to the revision and confirmation of the legislature at its first session there- after. 28. The commissioners shall draw on the receiver gene- ral in such form as may be directed by the governor in council for all monies that may be required for the pur- poses of this chapter. 29. The commissioners shall furnish quarterly accounts of all swch expenditure? ajid liabilities, which shall b§ TITLE XIX.] EAILKOACS. 255 examined and checked by the financial eeci'etary, and Chap. 70. presented to the general assembly in every year within the first ten days of each session, to be examined and audited by a joint committee of the legislative council and house of assembly, in the same manner as other public accounts. 30. The commissioners are authorized to make regula- Board to makd tions from time to time for the safe construction and vs'ork- gMdingTon-"^^' ing of the raihvays under their charge, for the transmission ="'"°''°°> *''' of goods and passengers thereon, for their care and man- agement, and that of the plant and equipment used thereon, for the protection of wharves, bridges, culverts, crossings, stations, buildings and depots erected or to be erected, and all other the property in the possession and under the control of the board in their public capacity, and in such regulations to affix fines, penalties and punish- ments for the breach thereof — provided always that such Proviso, regulations before going into operation shall be first sanctioned by the governor in council. 31. The governor in council shall have power by order eximpt'pereoas for that purpose made to except from drill, training or working on lau- other militia service, all persons engaged in the actual ua'duty!" "' '' construction of railways in the province. 32. The governor by and with the advice of the execu- Ji°^5 *"*"' tive council may contract a loan on the pledge of the ^ revenues of this province, whether arising from the duties upon imports, the sale of crown lands, the royalty paid by miners, or the tolls to be collected on the railways con- structed with the monies to be borrowed under this chapter. 33. Certificates of debt to be called debentures, bear- pebenturesi ing interest at six per cent, or at a less rate, as the gover- iized."''""* °' nor in council may see fit, may be issued from time to time at par, or at such premium as the same may com- mand as the railways proceed ; and the governor in council shall determine at what periods of time, in what amounts, and on what conditions such certificates shall be issued. 34. The debentures shall be in the form to be hereafter Formof deben- directed by the governor in council, with coupons annexed issufng^mouSt thereto ; they shall be signed by the governor and verified °^' '°'^''^*'' *"■ by his seal of office, and also countersigned by the receiver general ; they shall be numbered consecutively, com- mencing with number one, and shall be issued in such sums, not less than one hundred pounds sterling, as may be deemed expedient ; the interest thereon shall be paid half yearly at such place as shall be mentioned therein, and the principal of such debentures shall be paid in full at the expiration of twenty years from the date of their respective issues to the then holders thereof. 35. The whole of the revenues to arise from the receipt ^™s-how'to of tolls on such railways shall after the expenses of work- be applied. ing and maintenance have been paid, be applied towards 256 RAILROADS. [PART I. Chap. 70. the payment of interest on the debentures, and the surplus shall form a surplus fund for the redemption of the loan. Pledge for re- 36. Subjcct to the payment of any previously existing bISureT °^^^' provincial liability and of the civil list, the faith and credit of the province, and the ordinary revenues thereof, and the amount of proceeds of any special impost which may hereafter be levied and collected for the purpose of paying off all such railway debentures, and the interest thereon, shall be and hereby are declared pledged to any and every holder of the same. Monies raised 37. The principal sums to be raised and borrowed shall oeivtr^g^ene°rIij be reccivcd from time to time as the same may be raised application of. -[^y ^.j^g rcceivcr general, who shall upon the warrants of the governor, pay out of the same such sums as may from time to time be required for defraying the charges made payable out of the same by this chapter, and who shall also upon the warrants of the governor pay the dividends and interest upon the sums so raised and borrowed as the same shall become due ; and such fund shall be paid and man- aged in such manner for the redemption and liquidation of the principal sums as the governor in council shall from time to time direct and appoint, subject however to the Management of provisious of this chapter. And it is hereby declared that the parliament of this province will confirm and carry out by such legislative enactments, if any, as may be neces- sary to give full effect to the same, any arrangement or agreement not inconsistent with the spirit of this chapter, which may be made or authorized by the governor in council with regard to the raising and borrowing of the sums aforesaid. Reoeirer gene- 38. The receiver ereneral shall quarterly transmit to the audit of, Ac. govcmor for the purpose of being audited by the financial secretary and laid before the two houses of the legislature, a correct and detailed statement and account of the sums raised under the authority of this chapter, and of the debentures and other securities which shall have been issued, and of the interest and dividends paid thereon, and of the redemption of the whole or any part of the principal sum, and of the expenses attending the negociation, ma- nagement, payment, and redemption of the loan. City of Halifax 39. The city of Halifax shall be considered as holding ofs*tMk-*ifmit. stock in such railway to the extent of one-tenth part of ed to $4o'o,ooo- the actual expenditures thereon, — such tenth part not to exceed in the whole the sum of four hundred thousand dollars — and shall be entitled to participate in the profits of the railways in proportion to the amount of such stock ; and shall be assessed annually for the amount of interest thereon, at the same rate of interest at which the loan is obtained, and also for a proportionate amount of such sums as may be chargeable against the general revenues of this province for the redemption of the loan ; such TITLE XIX.] RAlLllOADS. 257 annual sums to be assessed and levied as tlie legislature Chap. 70. may hereafter direct, and to be paid into the hands of the Assessment- receiver general, to form a part of the general revenues of this province, and to continue to be so annually assessed, levied and paid in until the loan under this chapter shall become extinguished under the provisions thereof. 40. In case a less sum than eight hundred thousand Deficiency ot dollars be borrowed in any one year the deficiency may be fn^ne^year Id- added to the sum to be borrowed in the next or any sue- ^ed to next. ceeding year ; provided that the sums to be borrowed shall not exceed the rate of eight hundred thousand dollars per annum. 41. Such debentures may be made payable in currency HowpayaWe or sterling monies, and in such sums as from time to time may be deemed most expedient by the governor in council. 42. All the provisions of this chapter, except in so far Provisions to as they are altered or modified by the two last sections, bentSres? shall extend to such debentures. 43. The debentures that have heretofore been or may "aiid"^"^™^^!; hereafter be issued under the thirty-fourth section shall be the governor's and are hereby declared to be valid and binding, although ^^''' the same have not heretofore been and may not hereafter be verified by the governor's seal of office as therein required. 44. On the first Tuesday of June in every year or at Jraw^^"* such other time and times as shall be fixed by a judge of the supreme court between the hours of ten o'clock in the forenoon and twelve o'clock at noon, the prothonotary of every county in which a railway is being constructed shall in his office, in the presence of the clerk of the peace, who is hereby required to be present, and in the presence of any other persons who may desire to attend, draw from the grand jury box the names of twenty-eight persons then resident within the county liable and able to serve as grand jurors for the then current year in the same man- ner as special jurors are now drawn — -a notice of such time to be posted up by the clerk of the peace in at least three of the most public places near vrhere such railroad damages have been sustained at least ten days before the drawing of such jury. 45. The clerk of the peace on the one side and the striking of claimants for damages on the other shall reduce such list ^'"^^' to fourteen by each striking ofi" a name alternately as special jurors are struck. t 46. Where the same person shall fill the office of pro- where same thonotary and clerk of the peace, and no person shall have offices of'p''/o'"' been appointed for the purpose by a general' or special c^eil'rfpeaoa sessions who are hereby authorized to make such appoint- ment, the custos shall attend and act on behalf of the county instead of the clerk of the peace ; and in the absence of the custos or in case the clerk of the peace 33 258 RAILROADS. [PART 1. Chap. 70. and custos or either of them be claimants for damages, and no person be appointed by the sessions as before mentioned, or if the person appointed do not attend, then any disinterested magistrate may act for the county. Lists to be fur- 47. The board of railway commissioners shall pje- nJuway /om- viously to the Striking of the jury furnish the prothono- missioners. ^^^,^ ^^j^]^ ^ ljgj. ^£ ^^^ names of the several claimants for damages through whose lands the railway passes, accord- ing to the engineer's return to the board, together with the quantities of land in each case dedicated to the public, and also with a list of the names of those who shall have sustained damages by reason of the railway having de- prived them of access to their property, whether on land or water, or having destroyed or impaired any use, ease- ment or privilege which they had enjoyed in relation thereto : and such commissioners shall also furnish the prothonotary with plans distinctly exhibiting the premises of the claimants, with the line of the railway as it affects paSg'the '^' the same respectively. If the parties present who are Ji5|;^""s of the interested as claimants agree upon any person to strilie for them, the prothonotary shall minute the fact in writing, and such person shall act in that behalf: if the claimants cannot agree upon any person, or if no claimants attend, or if no one attend to strike on behalf of the county, the prothonotary shall strike for the absent party in the same way as special jurors are struck. If no qualified person appear to strike on either side, the first fourteen names drawn shall be the jury to be summoned. vtnirc. 48. The prothonotary shall thereupon forthwith issue and deliver to the sheriff a venire as in schedule A, directing the sheriff' to summon such jury to appear at a time and place to be therein named not more than sixteen days distant. And the sheriff' shall duly warn such jurors, and both he and the prothonotary shall attend on the return day of such venire. PiooeodinfT-. of 49. The first seven jurors who shall answer upon being juiy, u les, c. j|j.^^j-, ^^^^ called as petit jurors are drawn and called, shall be sworn by the prothonotary according to the form of oath in schedule B ; and a panel of their names shall be prepared by the prothonotai'y, and by him attached to the venire, and he shall hand such venire to the sheriff who shall with such jury proceed to the execution of their duty forthwith, or on a day to b,e then named, and whereof the jury shall be duly notified; and if the number of suah jurors at any time be reduced by death, inability from illness, or other cause, or through neglect or refusal, the remaining jurors shall proceed as if no such reduction ha'd taken place, provided the whole number be not reduced below five. The jury shall examine the premises in each case, and shall value the land taken and dedicated for the railway, and shall estimate the damages to the property, TITLE XIX.] BAILEOADS. 259 and investigate each, separate claim for damages accord- Chap. 70. ing to the circumstances, and form their judgment of such ' damages, as well prospective as present,, including loss for delay of payment; and also shall consider the relative benefit as well as injury done to the property by the con- struction of the railway ; and the j ury or in case of disagree- Disagreoment, ment after four hours deliberation, a majority whether of the full or reduced jury shall make an appraisement in writing, signed by such jurors, setting forth the amount of damages awa,rded to each claimant, and particularizing the nature and grounds of such damage, and the property or right in respect of which they accrued ; and the sherift" fherS." °^ shall within thirty days next after the swearing in of the jury file the venire and panel with the appraisement and his return with the clerk of the peace. If the jurors be Proceedins-* :ir; reduced below five before the appraisements are completed, i"mrflver'^ the appraisements duly made previously thereto shall be returned to the clerk of the peace, and the sheriff shall forthwith summon so many of the jurors drawn and struck, but not at first sworn, as shall be required to fill up 8uch jury to the requisite number; and such replenished jury, or a majority of them, or in case of their reduction to a number not less than five by the causes herciubeibio mentioned, a majoi'ity of such reduced jur\' shall proceed to make the remaining appraisements; and the sli ':iff shall have power to adjourn or i-e-summou the jury frum time to time, as occasion may require. 50. For the purpose of securing; a fair and impurti: 1 Jury .o have appraisement, the sheriff and jury shall have free access to perafpknrio all public offices, and to the papers, plans and returns therein ; and the railway commissioners, engineers and officers, if required by either party, and any other persons if subpoenaed, shall attend and give evidence as witnesses, under oath, if required by any party interested, and shall also produce all plans, papers and documents under their control touching the matters at issue. 51. The prothonotary and clerk of the peace, or person Fees. acting for the county, shall be entitled to a fee of four dollars each for their services ; the sherifii" shall be entitled to four dollars per day; and the jurors sworn shall be entitled each to the sum of three dollars for everj'^ day's actual attendance, in full payment for their services ; the jurors not sworn, but who were summoned and attended, shall be entitled to one dollar for such attendance, and to travelling fees as now allowed to petit jurors; and the sheriff' shall be entitled to a further sum of four dollars for warning such jury; which fees shall be assessed, levied and collected, and paid as ordinary county charges. Every Forfeit for de' ji • 1 1 ."^ n V 1, • ,1 fault of jurv. person summoned as a juror and making default m the performance of any of the duties required of him shall forfeit the sum of eighty dollars for each default, to be 260 BAILROADS. [PART I. Chap. 70. immediately levied under a warrant from the prothonotary, ' directed to the sherifl". Appeal to Bu- 52. Within thirty days after the return of any appraise- prMetdiiigsl^ . ment, the custos or clerk of the peace, on behalf of the county, or any party interested who may deem himself aggrieved, may apply by affidavit to the supreme court, or a judge thereof, for a summons and order to set the pro- ceedings aside in whole or in part, or to alter the valuation, which summons shall be served upon the opposite party iu the manner specified therein ; but such proceedings shall not be set aside upon any mere technical objection ; and the court or a judge shall have power upon satisfactory proof adduced by affidavit or viva voce examination of the parties and those interested, to confirm, increase or reduce the damages, or otherwise rectify the finding of the jury in substance or form ; or if such court or judge shall see fit a jury shall be empannelled to try the disputed matters of fact with reference to such damages ; and in case the damages complained of shall either be reduced in case of proceedings by the county or increased in case of pro- ceedings by a claimant to the extent of one-sixth, costs shall be recovered by the county or party applying, but not otherwise ; and the county shall pay the cost of such pro- ceedings if the damages be not so reduced, to be added to the damages ; and the party shall pay the cost of such pro- ceedings if the damages be not so increased, to be deducted from the amount of his claim for damages ; the court or judge shall make a final order touching the damages and costs, of which a certified copy shall forthwith be trans- mitted by the prothonotary to the clerk of the peace, and by which the court of sessions shall be governed in the amount of damages and costs to be assessed and collected. Jury under:this The iurv Contemplated under this section is and shall be section .* the ordinary petit jury of the supreme court or a special Trial J^^^ whcu Specially ordered; and the trials shall take place before the court or at sittings in the ordinary manner Railway dama- ^^ trials. Damages under appraisements against which no ^rais^mtntTt ^PP^^^ ^^^ been asserted, or which have been determined EeTsl"ssed'! ° after appeal, shall be assessed, collected, levied, raised and coiieeted and ^^j^ ^^ ^^^^ ^^ possiblc, and without any needless delay on any pretence whatever. Payment of 53. The amouut appraised upon each county shall be pSi"e°d. ^"^ payable in two years by equal annual instalments, the first instalment to be paid io one year after such appraisement with interest at six per cent per annum for any delay after that period, and the other instalment to be paid iu the ensuing year with like interest for delay of payment. Certificate of 54. After the expiratlou of tho uotice the custos of the appraisement, couuty sball deliver to each party in the form in schedule C, a certificate showing the amount to which such party is entitled under such apprai^eifteiit ; and such certificate TITLE XIX.] RAILROADS. 261 shall be signed by the custos and coimtersign ed by the Chap. 70. clerk of the peace, and shall be payable to order, and be transferable by endorsement, and shall authorize the party entitled to receive the amount of such appraisement together with interest for any delay of payment after the instalment becomes due when the same becomes payable, and which shall be a charge upon the county for all the nionies payable thereunder until fully discharged. 55. The damages appraised and established under this appOTfionTd""' chapter, and costs where costs shall be payable, shall be and collected. apportioned by the sessions without any delay amongst the townships, districts and places in each county and district, in proportion to the relative benefits which in the opinion of the court are likely to be derived by the several sections from the railway ; and the propoi-tion of each township, district and place shall be assessed tipon their inhabitants, and shall be levied, collected and paid over upon the same principle as county rates are or shall be by law levied, collected and paid over, provided that every tenant of real estate for any term less than freehold who shall pay rate under this chapter shall be entitled to deduct from the rent payable by him to his landlord, or otherwise to recover from the owner of the estate so much of the rate paid by him as was imposed upon him in respect of such real estate. 56. If the sessions shall nearlect or delay to make anv in case sessions , ,. ,, " rxi ■ _L -\ delay to make such apportionment, or to cause any ot the monies to be apportionment assessed, collected and paid over, which according to this may^^^ree"!'' chapter they ought to cause to be assessed, collected and paid over, it shall be lawful for the supreme court or a judge, upon application by any party interested, forthwith to amerce the county for the amounts for which the sessions ought to have made apportionment as aforesaid, together with the costs of proceeding before the supreme court or a judge ; such amercement to be apportioned and assessed by the court or a judge upon the township, district and place in each county on the principle pointed out in the preceding section, and the court or judge may receive evidence thereon by affidavit or otherwise, and the sums amerced shall he levied, collected and paid over in a manner analogous to that in which county rates are levied, collected and paid over. 57. The prothonotary shall furnish the clerk of the Amercement- peace with a copy of such amercement and apportionment forthwith after the same shall be made by the court or a judge ; and the clerk of the peace within fifteen days after the receipt thereof shall make out and deliver to the collec- tors the necessary rolls and instructions, and the collectors for each township, district and place, shall thereupon pro- ceed to collect the amount of such amercement. The clerks f//tors°"o.°°'" of the peace, assessors, collectors, county treasurers and all must carry W 262 RAILROADS. [PART I. Chap. 70. other officers whose agency now is or by any law might be provisions of required to carry out the assessment, collection and pay- this chapter, nient of county rates, are hereby required and shall be bound to carry out the provisions of this chapter according to its true intent ; and in case of neglect or violation of duty shall be liable to the like penalties as are now or as may be hereafter by law imposed for neglect or violation of analogous duties, touching the assessment, collection and payment of county rates, and also to an action for damages at the suit of any party aggrieved. Compensation 58. All officcrs employed under the sessions, supreme ^o^co ec ors, ^^^j.^ q^, a judge, in assessing, collecting and levying, shall be compensated for their services under this chapter, at such rate as the sessions shall award ; and such compensa- tion shall be a county charge. sumassessed 59. The treasurers of the counties shall forthwith pay ceive?gene''raK' ovcr all mouics rcccivcd by them under this chapter, to the receiver general, who shall pay to the parties respectively In case amount the amouuts to which they are legally entitled ; and if the fails to meet sums paid in shall not .meet the claims in full, the sessions claim. in T 1 Ti 1 1-1 1 shall assess and cause to be collected and paid to the receiver general the deficiency; and in their default the supreme court or a judge shall amerce for the same, and -cause it to be collected and paid in agreeably to the several provisions of this chapter applicable to assessments by the sessions, and amercements by the supreme court or a judge. Compensation 60. The scssious of the couuty of Halifax may assess cramy™/Hl°u the county for such sum as they consider sufficient to ''*^- compensate the appraiser appointed by them on behalf of the county, under the seventeenth section of chapter one of the acts of 1854, for his services in that capacity ; and all appraisements heretofore duly made in pursuance thereof shall remain in force. Parties entitled 61. Parties for whose lands, taken for the railway, to benefit of act appraisements have been made and set aside, shall be entitled to the benefit of this chapter, and the damages sustained by Messieurs Piers shall be appraised, assessed, collected and paid to the receiver general, who in settling with them shall deduct therefrom the amount paid to them out of the treasury in anticipation of their claim. Amendment of 62. 'No proceeding had or taken under any of the proceedmgs. elauscs of this chapter shall be set aside on any formal or technical ground or in consequence of such proceedings not being in accordance with the strict letter of this chap- ter, but such proceedings may be commenced anew, re- newed or amended in any stage thereof on application to the supreme court or a judge, and when so commenced, renewed or amended shall be as legal, valid and binding on all parties concerned as if no such formal or technical objection had existed thereto, or as if no such new or amended proceedings had been had. TITLE XIX.] RAILROADS. 263 63. The cost of fencing necessary in tlie construction Chap. 70. of the railway shall be levied from the respective counties oost of fencing. within which the railway is or should be constructed, at the rate of two hundred dollars per mile of railway within eacb county, and shall be apportioned by the sessions, subject to amercement by the supreme court, and shall be collected and paid over to the receiver general in the man- ner directed by this chapter in the case of railway damages. JI'o county wherein this chapter shall be carried out bona fide shall be required to assess in any one year for damages to lands and costs of fencing. The costs of fencing shall be payable in two years, one half in each year, and the first half thereof shall be imposed and collected in the year next following that in which the last instalment for land damages shall have been imposed, or in which the same under the provisions of this chapter should have been imposed. 64. The court of sessions shall require the treasurers Bonds from and collectors to give sufficient bonds in the name of her *''^^^™^"' majesty, conditioned for the faithful discharge of their duties. 65. If any person shall wilfully obstruct any person obstruction of acting under the authority of the commissioners in the JSrTOTd-p°en lawful exercise of their power in setting out the line of ""y ^°'^< *"■ the railway, or shall pull up or remove aUy poles, pegs, or stakes driven into the ground for the purpose of so setting out the line of the railway, or shall deface or destroy any pegs or marks put down or made for the same purpose, or shall wilfully obstruct any of the contractors or their •servants or workmen while employed in the construction of the railway, he shall forfeit a sum not exceeding twenty dollars for every such ojffence. 66. If any person shall wilfully obstruct the passing obstmction to of any engine or carriage along the railroad, or shall fnjurira toraii maliciously place anything on the railroad calculated to JSenrfo?°4c^' obstruct the passage of any engine or carriage, or to injure or endanger the same, or shall maliciously injure the rail- road or anything thereto appertaining or any materials or implements for the construction or use thereof, or any of the property in the possession or under the control of the commissioners as such, he shall be guilty of felony, and be imprisoned in the penitentiary for a term not exceeding fourteen years. 67. If any person shall wilfully obstruct or impede any impeding ofs- officer, servant or agent of the commissioners in the tfonoflutyr execution of his duties upon the railway or upon or in any trespass, &c.' of the stations or other works or premises connected there- with, or if" any person shall wilfully trespass upon the railway or any of the stations or other works or premises connected therewith, and shall refuse to quit the same upon request to Mm made by any officer, servant or agent 264 RAILROADS. [part I. Chap. 70. Injury to fences — penalty for. Gates — penalty for leaymg open. along the rail- road — penally for. Animals stray- ing on railroad; penalty, &c. Riotous con- duct in rail cars, &c. ; refu- sal to pay fare — penalty for. tJetention > offenders — bv Whom. of the commissioners, or shall wilfully disturb, break down, injure or destroy any of the fences of the railway or remove the same or any part thereof, or shall blot out or deface any regulations put up on the line or pull down or injure the boards upon which such regulations are affixed — every such person so offending and all others aiding or assisting therein shall severally forfeit a sum not exceeding one hundred dollars for every such offence. 68. If any person shall omit to shut and fasten any gate set up at either side of the railway for the accommo- dation of the owners or occupiers of the adjoining lands as soon as he and the carriage, cattle or other animals under his care have passed through the same, he shall forfeit for every such offence a sum not exceeding eight dollars. 69. If any person after the railroad or any section thereof shall be opened for use shall himself go thereon or shall ride, drive, or lead any animal thereon, he shall for every such offence forfeit a sum not exceeding eight dollars ; but nothing in this regulation shall prevent the passing across the railroad where the same is crossed by any other road on a level therewith. 70. If any animal shall be found going at large within the limits of the railroad or any section thereof, after the same shall be opened for use, the owner thereof and the person through whose default or neglect the same shall occur, shall for every such offence severally forfeit a sum not exceeding eight dollars ; provided the railroad shall have on the sides thereof where it shall not cross some other road on the same level, a fence approved of by the commissioners. 7i. If any person shall travel or attempt to travel in any carriage belonging to the railroad, without having previously paid his fare, and with intent to avoid payment thereof; or if any person having paid his fare for a certain distance, knowingly and wilfully proceed in any such carriage beyond such distance without previously paying the additional fare for the additional distance, and with intent to avoid payment thereof; or if any person know- ingly and wilfully refuse or neglect on arriving at the point to which he has paid his fare to quit such carriage ; or if any person while in such carriage shall offend or annoy the other passengers therein by riotous conduct or by indecent or profane language, or shall disobey the lawful directions of the guard, or shall persist in smoking after a request from the guard or from any other passenger to desist therefrom — every such person shall for every such offence forfeit a sum not exceeding twenty dollars. 72. If any person be discovered either in or after com mitting or attempting to commit any such offence as in the preceding regulation mentioned, all officers and servants of TITLE XIX.] RAILROADS. 265 the commissioners and such other persons as they may call On ap. 70. to their aid, and all constables, gaolers and peace officers, " may lawfully apprehend and detain such person until he can conveniently be taken before some justice, or until he can be otherwise discharged in due course of law. 73. If any person shall send by the railway any aqua- Gunpowder and fortis, oil of vitrol, gunpowder, lucifer matches, or other goSIirpenaity goods of a dangerous character, without distinctly marking them'!'"'"'''"*^ their nature on the outside of the package containing the same or otherwise giving notice to the book-keeper or other servant of the commissioners with whom the same are left at the time of so sending, he shall forfeit for every such offence a sum not exceeding eighty dollars. 74. If any person shall wronefully open or break open Mode of prooe- any gate or fence along the line of railway, or shall com- parties for tres- mit any trespass upon the lands appropriated for railway pe?ty'5ffr°a'iiwa°y purposes, or upon any of the machinery, goods, chattels, dep»rtment. firewood, sleepers or other property, real or personal, be- longing to the railway department, he shall be liable to be proceeded against in a summary way, in the name of her majesty the queen; and upon summons and conviction ^^^''y- *''• before one or more justices of the peace, or a judge of the supreme court, according to the amount of damages claimed, he may in cases before a judge of the supreme court in addition to every actual damage proven be fined or imprisoned, or both, as the judge may order. 75. "When any person shall be guilty of stealing any Modeof pro- personal property belonging to the railway department, or parties for of maliciously injuring the same, the title of such property uoloiisiy'injS?- may be laid in the queen, and the party stealing or injur- dllartmenF °^ ing the same may be proceeded against and punished, as in cases where such property were laid and proved to be that of a private individual, and where the value of the where value is property stolen or damaged is laid at a value of two dreadoTiars.""' hundred dollars or under, the party charged may upon a summary information be arraigned and tried by a judge of the supreme court without a jury ; but such judge shall on application of the party charged order a trial by indictment and jury, and the party convicted may be fined or impri- soned, or both, as such judge may order and determine. 76. In all criminal proceedings under this chapter, and Proceedings to in all civil proceedings touching real or personal property, the'que^enf ° purchased for or belonging to the railway department, the proceedings may be in the name of and the property described as belonging to her majesty the queen. 77. It shall be lawful for the commissioners to make Toiis-how and levy such tolls as in their opinion shall be best adapted 'o"^"*- for the accommodation of the traffic, and to alter and vary the same from time to time as they may see fit ; provided that all such tolls be at all times charged equally to all persons, and after the same rate, whether per ton, per mile, 34 266 RAILROADS. [part I. Chap. 70. Tolls — ^how and by whom paid. Befusal to pay tolls— penalty. Avoiding the toll by not giv- ing correct ac- count of goods; penalty for. Damages to carriages, &c. Passengers- rules of book- ing. or otherwise in respect of all passengers, and of all goods or carriages of the same description, and conveyed or propelled by a like carriage or engine passing only over the same portion of the line of railVray under the same circumstances. 78. The tolls shall be paid to such persons and at such places and in such manner and under such regulations as the commissioners shall appoint. 79. If on demand any person fail to pay the tolls due in respect of any carriage or goods, it shall be lawful for the commissioners to detain and sell such carriage, or all or any part of such goods ; or if the same shall have been removed from the premises of the railway, to detain and sell any other carriages or goods within such premises belonging to the party liable to pay such tolls ; and out of the money arising from such sale to retain the tolls payable as aforesaid, and all charges and expenses of such detention and sale, rendering the overplus, if any, to the person entitled thereto ; or it shall be lawful for the commissioners to recover any such tolls by action at law. 80. If any person being the owner or having the care of any carriage or goods passing or being upon the railway, shall on demand fail to give to any person appointed to collect the tolls a true and correct account in writing signed by him, of the number and quantity of goods con- veyed by any such carriage, and of the point on the railway from which such carriage or goods have set out, or are- about to set out, and at what point the- same are to be unloaded or taken off the railway ; and if the goods con- veyed by any such carriage, or brought for conveyance as aforesaid, "be liable to payment of different tolls, shall fail to specify the respective quantities or numbers thereof liable to each or any such tolls, with intent to avoid in any case the payment thereof, he shall for every such offence forfeit and pay to the commissioners a sum not exceeding forty dollars for every ton of goods or for any parcel not exceeding one hundred weight, and so in proportion for any quantity of goods less than one ton, or for any parcel exceeding one hundred weight, as the case may be, which shall be upon any such carriage ; and such penalty shall be in addition to the toll to which such goods may be liable. 81. If any passenger shall wilfully cut the lining, or remove or damage any part of the carriages, or shall get into or get off of any train when in motion, or at any other place than the passengers platforms, or attempt to do so, every such person shall for every such offence forfeit and pay a sum not exceeding eight dollars. 82. Passengers at the road stations will only be booked conditionally, that is to say, in case there shall be room in the train for which they are booked. If there shall not be room for all so booked, the passengers for the longer dis- TITLE XIX.] EAILROADS. 267 tance will be allowed the preference, and for the same Chap. 70. distance they will have priority according to the number ~ of their tickets. 83. The owners of goods and property of every descrip- commissioners tion conveyed by the railway, liable to injury from the fo''r*gooT°n-'''^ weather or from smoke, sparks or fire, shall be responsible ipedaiiyagreed for their proper protection, unless under a special bargain for- with the commissioners. 84. If any person shall load anv carriage on the railway, overloading 80 that the loading extends more than two feet beyond the causing ob- ' flange of the wheels, or shall leave any carriage or goods wOTkin°g°raUr or things under his charge to remain on the railway, or in ^^^' *'^' any of the depots or sidings thereiof, to an obstruction of the working of the railway, every such person for every such offence shall forfeit and pay a sum not exceeding eight dollars, 85. If any person convicted under any of the preceding fe'd^°"de°°re''-" sections, from 65 to 84 both inclusive, shall not pay the ceding section judgment and costs, and no goods can be found whereon ^'maybeTm-"^ to levy the same, such person may be imprisoned in the P"soned. common jail of the county for a term not exceeding one day for everyone dollar of the amount of the judgment, provided such term shall in no case exceed three months. 86. Chapter forty of the acts of 1861 shall remain in Chapter forty of (.TIP 1 n' , • ,1 T T n ■• "Cts of 1861 to lull lorce and eiiect, notwitnstandmg the passage of the remain in force. present series of the revised statutes or of any repealing act thereon. SCHEBULE, A. To wit: To the sheriff of You are hereby commanded to summon A. B., &c., jurors, duly appointed to appear at on the day of at o'clock, then and there to qualify them- selves for the purpose of appraising the damages sustained by certain claimants for damages in respect of lands taken for railway purposes, and in respect of other injuries within the provisions of chapter 70 of the revised statutes, third series, and have you then and there this writ. Issued this day of A. D., 18 — . B. Juror's Oath. You swear that you will truly appraise the damages sustained by the respective proprietors of lands taken for the track of railways and fot stations, and that in the case of claimants for damages by reason of the line of railway haying deprived theiji of access tg their lands, or having 268 KAILROADS. [part I. Chap. 70. destroyed or impaired any easement or privilege which they had enjoyed in relation thereto, you will truly appraise the damage so sustained by such parties respectively ; and you do swear that in every case you will faithfully examine the premises, and will investigate each case according to the circumstances, and that you will impartially form your judgment of the damages as well prospective as present, including loss for delay of payment ; and also will impar- tially consider and estimate the relative benefit as well as injury to the property by the construction of the railway, and will deduct the benefit likely to be derived by the claimants from the railway running near to their lands, and that you will in all things decide according to the best of your judgment and ability. So help you God. C. This is to certify that A. B. is entitled to receive the sum of $ , which on the day of , 18 — , was appraised for railway damages under chapter seventy of the revised statutes, third series, payable to the said A. B., or his order, in two equal annual instalments in the manner following, that is to say : one half of the said sum on or before the expiration of one year from the date of the appraisement as above mentioned, and the other half on or before the expiration of two years from that date, together with interest on each instalment after the time of payment shall have elapsed. Given under my hand this day of , A. D. 18 — . C. D., custos of county of . E. F., clerk of the peace. Contract for line to Pictou to be made. Provisions of chapter ap- plicable. Savings* bank deposit* may be appropriated and debentures ipsvied, Part the Second. [act passed SIOHTEENTE APRIL, 1864.] 1. The governor in council is hereby authorized to contract for the extension of the railway from the station house at Truro to the navigable waters of the harbor at Pictou, and as far as practicable on a site adapted for a common line for an extension of a line of railway from the station aforesaid to the frontier of New Brunswick. 2. The provisions of the chapter of the revised statutes, " of provincial government railways," so far as may be, are hereby made applicable to the construction and manage- ment of such section. 3. The governor in council may appropriate any de- posits in the savings' bank towards defraying the costs of construction of such section, and may also for the purposes of this chapter issue preyinei^l debentures, bearing in- TITLE XIX.] RAILROADS. 269 terest at a rate not to exceed six per cent, redeemable in Chap. 71. twenty, years, and not to exceed the sum of sixteen hun- dred thousand dollars in the same manner as is provided for issuing debentures under such chapter of the revised statutes. 4. Chapter twenty-two of the acts of 1863, entitled f;J,'*Pg7 ^glJ^y' " an act to authorize the construction of a further section repealed. of ^ovincial railways," is repealed. CHAPTER 71. OF RAILROADS OTHER THAN PROVINCIAL GOVERNMENT RAILROADS. 1. The proprietor of any railroad whereon any loco- Beiis or whistle motive engine shall be run shall cause a suitable bell or tngLesfvvhen steam whistle to be kept on every engine while running, golndTJ"^ ""^ and which shall be rung or blown at the distance of at least eighty rods from every place where the rail crosses any other road upon the same level with the rail, and shall be kept ringing or sounding until the engine has crossed. 2. The proprietor of every such railroad shall cause Painted boards boards to be placed, well supported by posts and con- "' '=''°^'^'°ss. stantly maintained, across every road at every place where crossed by the rail on the same level ; such boards and posts to be of a height to be easily seen by travellers without impeding the travelling ; and on each side of the boards shall be painted in capital letters at least nine inches high the following inscription, to be kept always plainly legible : " railroad crossing, — look out for the engine." 3. Upon application to the sessions, setting forth that Gates andkeep- in addition to the foregoing provisions it is necessary for mI/'beo°rdi?ld the security of the public that gates should be placed ^^ sessions. across any such railroad where the same shall cross any road on the same level therewith, and that persons should be stationed at such gates to open and close the same when required for the passing of the engine, the sessions shall investigate the application and hear evidence thereon ; and if they shall be of opinion that the placing of such gates and the stationing of such persons thereat is neces- sary for the security of the public, shall make an order accordingly with which order the proprietor shall comply ; but no such order shall be made unless a summons, to be issued by the clerk of the peace, setting forth the nature of the application, shall be served on the manager or 270 EAILROADS, [part I, Chap. 71. Fine for viola- tion of preced- ing sections. Fine for ob- structing rail- roads. Fine for going upon or leading animals on the railroad. Fine for cattle trespassing on railroad limits. Imprisonment when no goods to satisfy fine. Special consta- bles, how ap- gointed; their adge and duty. person having charge of the railroad or some known agent of the proprietor thereof, actually employed in and aoout the railroad, at least fourteen days before the first day of the sitting of the sessions at which the investigation shall take place, requiring cause to be shewn against such application. 4. If any proprietor shall violate any of the provisions of the three preceding sections, he shall for every o^ence forfeit a sum not exceeding two hundred dollars. 5. If any person shall maliciously obstruct the passing of any engine or carriage along any railroad or shall ma- liciously place any thing on any railroad now or hereafter to be constructed in this province calculated to obstruct the passing of any engine or carriage or to injure or endanger the same, or shall maliciously injure such rail- road or any thing thereto appertaining or any materials or implements for the construction or use thereof, such person, and also every person abetting the offence, shall forfeit a' sum not exceeding two hundred dollars or be imprisoned for a term not exceeding two years. 6. If any person after any such railroad shall be opened for use shall himself go thereon or shall ride, drive or lead any animal thereon without the consent of the proprietor, he shall for every offence forfeit four dollars ; but nothing in this section shall prevent the passing across the railroad where the same is crossed by any other road on a level therewith. 7. If any animal shall be found going at large within the limits of any such railroad after the same is opened for use, the person through whose neglect the same shall occur shall for every offence forfeit one dollar ; provided the railroad shall have on the sides thereof where it shall not cross some other road on the same level, a lawful fence. / 8. If any person convicted under any of the two preceding sections shall not pay the judgment and no goods can be found whereon to levy, he may be imprisoned for a term not exceeding one day for every one dollar of the amount of the judgment; such term in no case to exceed three months. 9. In order more effectually to prevent breaches of the foregoing regulations, the general sessions or any special sessions not interested in the railroad or connected there- with may appoint and swear in constables for such railroad, to be nominated by the proprietor ; and such constables shall be stationed at such places as may be deemed neces- sary at the expense of the proprietor, and shall carry such distinguishing badge when on duty as the general or special sessions shall direct, and shall have all the powers of constables in preventing such breaches, and for appre- hending offenders and taking them before justices of the TITLE XX.] SEWERS— DIKE AND MARSH LANDS, 271 peace, and foi preserving public peace and order on and Chap. 72. within the limits of the railroad. 10. _ The word " proprietor" when used in this cljapter Definition of shall include his agents and servants, and the word ^™^' " road" shall include streets, lanes and highways. TITLE XX. OF SEWERS, COMMONS, AND COMMON" FIELDS. OHAPTEE 72. OF COMMISSIONERS OP SEWERS AND THE REGULATING OF DIKED AND MARSH LANDS. 1. All commissions issued for the appointment of com- commissions missioners of sewers shall continue in force till the gover- to'^conIinue"!n nor in council shall otherwise direct. ^°'^'"'- 2. The srovernor in council at the request of any of the commissioners, ' 2. /} 1 111 liow appointed proprietors ot any marsh, swamp or meadow lands, may and sworn in ; appoint one or more commissioners of sewers for the po^'te'd and''^ county, township or place where such lands lie, who shall ^^°™- be sworn into office by a justice of the peace, and such swearing shall be entered in the commissioners' book of record, which shall be evidence of the fact ; and the com- missioners shall appoint a clerk, who shall be sworn into office by one of the commissioners, and the swearing shall be entered in the book of record, which shall be evidence of the fact. 3. Two thirds in interest of the proprietors of any commissionert, -, T IT ...-'^■.■^..T, .^ how chosen to marsh, swamp or mfeadow lands, within the jurisdiction of carry on woric ; such commissioners, may by themselves or their agents °^ smisse . select one or more commissioners to cany on any work for reclaiming such lands ; and they may at any time add to or diminish the number of commissioners selected or super- sede any or all of them, and choose others instead ; and the choice or dismissal of any commissioners for or from the management of any particular land shall be made in writing, under the hands of two-thirds of the proprietors in interest in such lands, and shall be entered in the book of record or filed by the clerk. Whenever any marsh, swamp or meadow lands lie partly in two counties, one or more commissioners of sewers may be chosen therefor out of one or both counties in which such lands lie. 4. The commissioners so chosen may require the pro- ^'irsloners^fOT' prietors of such lands to furnish men, teams, tools and carrying on 272 SEWBKS — DIKE AND MARSH LANDS. [PART I. Chap. 72. works ; new works, how begun. Overseers may be appointed ; how Rworn. Notice to be given proprie- Assessment to be made.and for wliatjpurposes. llates exceed- ing one dollar and fifty cents per acre — how assessed. Commissionars of Wickwire dike may as- sess. materials to build or repair any dikes or wears necessary to prevent inundation, to dam, flow, or drain such lands, or to secure the same from brooks, rivers, or the sea, by aboiteaux or breakwaters, or in any way they may think proper ; and in case of neglect may employ men and teams, and provide tools and materials for that purpose at the expense of such proprietors ; the commissioner so chosen shall consult such other commissioners within the township, county or place as two thirds in interest of the proprietors of the lands in question, personally or by their agents shall name, as to the practicability of the work, or anything relating to the same. In case of the commencement of any new work, two-thirds in interest of the proprietors of the lands shall first agree thereto. 5. Commissioners may appoint from among the pro- prietors of such lands one or more overseers to assist them, who shall be sworn by one of the commissioners. 6. Commissioners shall in ordinary cases cause three days notice, exclusive of Sundays, to be given to the pro- prietors of land, or to their known agents, where they reside within ten miles of the place where the labor is required to be done, to attend and furnish labor and materials ; but in cases of sudden breaches in any works, or apprehension thereof, the immediate attendance of each proprietor may be required. 7. The commissioners so chosen may assess the owners or occupiers of such lands for any expenses incurred by them or their predecessors, whose accounts remain un- settled, for dikes, wears, drains, aboiteaux or breakwaters, including one dollar and fifty cents per day for every com- missioner while actually employed, and a reasonable sum for the payment of the clerk, overseers and collector, having regard to the quantity and quality of land of each owner or occupier, and the benefit to be by him received. 8. Where any rate shall exceed one dollar and fifty cents an acre on the whole quantity of rateable land, the commissioners shall summon the owners or occupiers of such land, or their known agents, or such of them as shall reside within ten miles of the work, to meet at a certain place and at a certain time, not less than three days ex- clusive of Sunday, after service of such summons, when two-thirds in interest of the owners or occupiers present may elect not less than three nor more than five disinter- ested persons as assessors, who shall be sworn into office the same way as the clerk ; and they or a majority of them shall with the commissioners assess the owners or occu- piers for the expenses incurred, including a sum not exceeding one dollar and fifty cents a day for each assessor while actually employed. 9. The commissioners for the new or "Wickwire dike in Horton, may assess the owners or occupiers of land in Title xx.] sewers — dike and marsh lands. 273 such dike although the rate shall exceed one dollar and Chap. 72. fifty cents an aci'e, provided the rate shall not exceed four dollars an acre on the whole quantity of rateable land, without calling a meeting of the owners or occupiers as provided in the last section, pr taking the other proceed- ings prescribed by the chapter where the rate exceeds one dollar and fifty cents. 10. An assessment may be made in the same way in gj,f;f^'"*,*^|^ respect of meadow lands and swamps for the original assessed for opening or draining thereof, although the rate be less than Sg^as^m \Lt' one dollar and fifty cents an acre on the quantity of rate- ^^<=*'°"- able land. 11. If the owners or occupiers, or their agents, attend- ^hel^lTreed ing such meeting shall unanimously agree to an estimate to unanimously and assessment in writing, to be entered in the books of Lothel- rates. the commissioners, it shall be valid and binding, as any other rate or assessment. 12. All fines, rates and assessments shall be recovered Fines, rates and 1 T'ji pji ■• • 1 T ^ assessments. by and m the names ol the commissioners so appointed and how recovered; chosen, with costs as if the same were private debts ; and SfioVe^d.""^ a copy of the assessment, or of such part as may "relate to the particular rate sued for, shall be sufficient proof of the assessment having been made, and of the liability of the owner or occupier of the land in question to pay the same ; and no fine, rate or assessment shall be subject to any set off of a private nature, or be connected with any private claim on the part of the plaintifi". 13. When no goods of any owner or occupier of such ^|»^| ^^^^l lands can be found within the county where they lie, or ment of rates, the commissioners shall not think prudent to proceed under any judgment so obtained against such goods, the com- missioners may let so much of the land as will pay the rate and expenses thereon, first giving twenty days notice, by handbills, posted in at least three of the most public places in the township where the lands lie. 14. If any such lands cannot be let for a sufficient sum May be sow if to pay the rate and expense, the sheriff or his deputy, at cient. the request of the commissioners, shall sell the same, or so much thereof, as is necessary to pay the rate and expenses, having given three months previous notice of the time and place of such sale, by handbills, posted in at least three of the most public places in the township where such lands lie ; and shall execute and deliver to the purchaser a valid deed of such lands, for which deed, and his atten- tion about the sale, he shall be entitled out of the proceeds to two dollars. A recital in the deed of such handbills having been duly posted, shall be presumptive evidence of the fact. No school or glebe lands shall be sold under this chaCpter. 15. Where the present or former owner or occupier of Land only any land, or his known agent, shall not have agreed to the owner hairnot 35 274 SEWERS — DIKE AND MARSH LANDS. [PART I. Chap. 72. agreed to the works. Deficiencies of rates, how levied and col- lected. Action by own- ers, &c., against conimissioner for work, Ac; when sustain- able. Owners and occupiers re- quired to fur- nish labor ; tine for neglect. Damage for sods or soil ; how assessed. Powers of com- missioners. Clerk to keep record. building of any dike, wear, aboiteau or breakwater, or to the damming, flowing or draining of such land, tbe land only shall be liable for the rate or assessment. 16. Any deficiency in the amount of a rate may be levied and collected as an original rate. 17. 1^0 commissioner shall be liable to an action for any demand for work or materials furnished by the owner or occupier or his agent, until all rates and expenses thereon against the lands of such owner or occupier shall have been paid, nor until after a reasonable time for making up the rate bill and collecting the same ; and before any letting or sale shall take place, the amount due to the owner or occupier of such lands for work or materials, shall be deducted from the amount due from such owner or occu- pier. 18. Eveiy owner or occupier of such lands or their agent, shall when required by the commissioners, provide at a certain time and place named a sufficient number of laborers with tools, carts and teams, in proportion to the quantity of land owned or occupied ; and for each day's neglect in case of a sudden breach, or the apprehension of one, shall pay besides his rate or assessment, a fine of one dollar for each laborer, and a like sum for each cart or team so required. All fines when recovered to be applied for the benefit of such lands generally. 19. When sods or soil shall be cut off the land of any proprietor inside or outside of the dike, for the purpose of making or repairing of such dike, or when such lands shall be washed away or diked out, or injured by carting over the same by order of the commissioners, such damage shall be valued, assessed and paid as other dike rates. If there be any lands so reclaimed, lying undivided and in common, the same shall be as far as it may be available allotted to the party injured, and the balance only if any assessed as above. 20. "When sods or soil shall be cut off the lands of any proprietor inside or outside the dike, for the purpose of making and repairing such dike or an aboiteau, the com- missioners shall have power to settle the value of the same with the owner or owners of the land, provided the damage does not exceed five dollars each person, and if the com- missioners and owners cannot agree, each party shall choose ' one freeholder as appraiser, and such two appraisers shall appoint a third freeholder to act with them, and the deci- sion of any two such freeholders shall be final ; and if the appraisers so appointed do not allow one sixth more than had been offered by the commissioners, the owners shall pay all the expenses consequent upon such appraisement. 21. The clerk of the commissioners shall keep a record of all their proceedings, and a fair account of all monies expended by them, open to the inspeption of all persons TITLE XX.] SEWERS — DIKE AND MABSH LANDS. 275 interested therein on payment for each search and exami- Chap. 72. nation of the hook at one time of twenty cents, and a copy shall be furnished to every person interested when de- manded on payment of ten cents for every ninety words. 22. Whenever by the makinar or repairing of a break- saitmarsh- j. X. T J.- jy • • X' li. 1 when taxed. water by direction oi a commissioner ot sewers, salt marsh lying outside the same shall be benefitted thereby, the same shall be taxed and assessed towards the expense of the breakwater in proportion to the benefit derived. 23. "Whenever in the draining of any swamp or meadow f^^^^l *° ^^ land a part shall be benefitted, the proportion of the expense parts benefittea shall be assessed on that part only. 24. A clerk or overseer or collector shall be a compe- ^fg'gPg^^n'd^ °^ tent witness to prove any fact connected with the duties of other otBoers as his ofiice, although a proprietor in the land included in the '^'*''®^^®^' assessment ; except in a matter touching the particular rate or assessment upon his own land or himself in relation thereto. 25. ISTo commissioner of sewers shall hold the office of gh™i"ot bT^' clerk or collector. <=ierk. 26. When any commissioner of sewers having the p'™^ when iTiTii.T. T 1 necessary — charge of any land, shall think it necessary to have a plan how obtained. thereof shewing the several lots and boundaries and the names of owners or occupiers, he may employ a surveyor to make such plan, and order the expense to be laid on the land so surveyed as other charges, and may require the owners or occupiers, or their agents, to point out to the surveyor the boundaries of their respective lots, and the owners, occupiers and agents so called upon shall be bound by such survey and plan. 27. Where any lands enclosed by dikes shall by other °^J,*fg';,t'|jJ^^^ dikes erected outside the same, he enclosed and protected, lands enclosed the commissioner in charge of the lands reclaimed by how^klpt'i'n^'' outer dikes shall call a meeting of the proprietors of the ^^'^^"■ land within the whole level contained and enclosed by the outer dikes, who shall reside within the township or within ten miles of the place where such lands lie, giving six days notice of the time and place of meeting to each proprietor or his known agent ; and two thirds in interest of such, owners or occupiers present, or in case of their neglect then the commissioners, shall elect not less than three nor more than five disinterested freeholders, who being sworn before a justice shall determine what propor- tion or degree of benefit hath accrued or is likely to accrue to the old or inner dikes an4 the lands lying within the eame from the new or outer dikes, and shall settle and declare the proportion of expense the proprietors of the lands within the old dikes ought annually to contribute :and be assessed towards the maintenance and repair of the new dikes ; and such persons, or two thirds of them, shall jnake a report in writing of theiy proceedings, which shall 276 SEWERS — DIKE AND MARSH LANDS. [PAET I. Chap. 72. be entered in the book of record for such outer dikes, and every sum or proportion of expenses so settled and declared shall be borne upon the lands within the inner dikes, and be assessed and collected as other dike rates. Outer dikes 28. If such outer dikes shall at any time cease in whole tect inner dikes Or in part to protect such inner dikes, the lands within the inner dikes shall not for such time contribute or be assessed to the support or repair of the outer dikes. terTswTtfiiT' ^^* -'■^ ^* ^^y *^™® *^° thirds in interest of the proprie- ner dikes may tors of the lands witliiu the inner dikes shall be apprehen- ingl to compel sive that the outer dikes are unsafe or out of repair, two df^es? °' °"'^"^ thirds in interest of the proprietors of the whole level may call upon one or more commissioners to examine the outer dikes ; and if it appear to him or them to require repair, he or they with the assent of such two thirds in interest of the proprietors of the whole level, shall forthwith cause the same to be repaired, or otherwise with the like consent put the inner dikes in a state of repair, as shall seem most advisable. If the inner dikes be repaired, then the proprie- tors of the lands enclosed thereby shall bear the expense. Dikes injured 30. If any pcrsou shall pasture marshes or other lands roads Vhow'' re; cucloscd by a common dike or without and adjoining such paired. dike, or shall make a road over such dike whereby it shall be injured, the commissioners may make an order on such person as often as occasion may require for repairing the injury by a certain day to be named therein ; and in case of refusal of obedience to such order the commissioners shall cau.se the injury to be repaired, and the person dis- obeying the order shall forfeit for every offence two dollars, which, with the costs of the repair, may be re- covered and applied as other dike rates. Apiiiicatiotisfor 31. On application by any proprietor of marsh, swamp m^ad"^^duty°rf or mcadow lands, in writing, signed by him or his agent, thS™„f'°°^'' to the commissioners for a county or township in which the lands lie, or in case there has been a commissioner or commissioners selected by two-thirds in interest for carry- ing on work over the lands whereof the same forms a part, then to such commissioner or commissioners, setting forth that the same are frequently overflowed and rendered unproductive, the commissioners or any three of them, or the commissioner or commissioners so selected, as^the case may be, shall inquire into the merits of the application, and may direct such lands to be drained by causing new or old drains to be opened through the same or any adja- cent land ; and such commissioner or commissioners may order such measures as they may deem proper for render- ing the lands productive, and may require the proprietors or occupiers of the lands through which the drainage shall be ordered, to perform a just proportion of the labor necessary for the purpose, and shall have power to tax all lands benefitted by such (Irainage, 9,nd the proprietors QV TITLE XX.] SEWERS — DIKE AND MARSH LANDS. 277 ■ occupiers thereof for the expenses incurred, and for damage Chap. 72. arising therefrom, in proportion to the benefit to be received by such lands respectively, by a rate according to the quantity and quality of the lands owned by the pro- prietors respectively; which rate shall be levied and recovered as other dike rates are ; but no such rate shall be payable until ten days after notice given by the com- missioner or commissioners, or his or their collector or clerk, to the proprietors or occupiers, or their known agents respectively, residing within ten miles of the lands drained, of the amount thereof, or in case of an appeal, until after the decision thereon. 32. Two-thirds in interest of the proprietors of any Making, aitei- iiiiir etc roficls body of marsh, diked or un diked, may on application in Ap.,'tiiiough ' writing, specially require the commissioners of sewers "^^^'^ ''''° ''' having such land in charge, or in case there be none, may select any other commissioner for the purpose of making, repairing or altering any private roads or bridges leading through or across the same which such majority of two- thirds in interest may deem expedient or advantageous ; and the commissioners so appointed or required may call upon the proprietors of such land to furnish men, teams, tools and materials to carry on such works, and may assess the owners or occupiers of such lands according to the benefit to be derived, and collect such rates in the same way as ordinary dike rates. 33. On application in writing, two-thirds in interest of Flowing diked the proprietors of any part or portion of any diked marsh or meadow land, desiring to flow the same, may direct the commissioner in whose jurisdiction such lands may lie, or in case there is none, any commissioner selected by them- selves from the same county or town, to proceed imme- diately and set of£ such part or portion into a separate body, and dike out such part or portion for the purpose of flowing the same ; and such commissioner may require the proprietors or occupiers of such lands to furnish their proportions of labor and materials necessary to erect a division dike for that purpose, and shall assess them ■ for the expenses and damages thereof according to the benefit to be received by such flowing; provided always that whenever it shall appear to any commissioner of sewers adjoining such flowed lands that such division dike is insufficient, and such lands adjoining are endangered thereby, it shall be lawful for such commissioner to repair such division dike- and collect the expenses thereof from the proprietors of land so diked out. 34. The expenses of repairing the dike cut for such Expenses, how flowing shall be borne by the proprietors of the land so ''°™^' diked out and flowed. 35. If any proprietor or occupier taxed shall within ^aSsfiidTith^" seven da,ja after being notified thereof give notice to the xltts mayUy^ 278 SEWERS — DIKE AND MAESH LANDS. [PART I. OlIAP. 72. assessors cho- sen, whose de- cision shall be final. 3Iode of proce- dure where the firovisions of ast section are not complied with. Damages to lands of per- sons not appli- cants ; how valued and assessed. Cases of two proprietors, but neither owning two thirds, how provided for. Certiorari for removing _pro- ceedings into supreme court. Fines for clerks and other offi- cers neglecting duty. ■ commissioner or commissioners in writing, signed by him- self or his agent, that he is dissatisfied with the rate, such commissioner or commissioners shall summon the owners or occupiers of such lands or their known agents or such of them as shall reside within ten miles of the work, to meet at a certain place and on a certain day, being at least three days, exclusive of Sunday, after service of such summons, when a majority in interest of those present shall elect not less than three nor more than five disin- terested persons as assessors ; and the assessors or a majority of them, having been first sworn into office in the same way as the clerk, with such commissioner or com-. missioners, shall assess such owners or occupiers for the expenses incurred, including a sum not exceeding one dollar and fifty cents a day for each assessor while actually employed, and the decision of the assessors or any three of them shall be final. 36. In case the proprietors neglect to meet at the time and place appointed or to appoint assessors, or in case the assessors or a majority of them neglect to perform the duties imposed upon them, the commissioner or commis- sioners shall forthwith submit and refer such rate to three other disinterested commissioners of sewers of the county or township within which the lands lie, by name, who shall forthwith revise, and, if they see fit, amend such rate, and the decision of the revising commissioners, or any two of them, shall be final. 37. When the land of any proprietor within such marsh, swamp or meadow land, other than that of the applicant, shall have been injured by such drainage or other measures ordered, the damage shall be valued, as- sessed, and paid in the same manner as directed for the expenses incurred in such drainage. 38. Where any diked marshes are owned by two persons in such proportions that neither is interested to the extent of two-thirds, either party may require one or more commissioners to take charge of and carry on any work necessary for repairing the dikes thereof. 39. If any owner or occupier of land think himself aggrieved by the proceedings of the commissioners or of any person acting under this chapter, he may remove the proceedings of such commissioners by certiorari into the supreme court, where they shall be examined, if necessary, and such determination made as shall be proper; but sufficient security shall be first given by the applicant to the prothonotary of the court for payment of costs to be awarded and taxed. 40. All clerks, collectors, overseers and assessors, who shall neglect or refuse to comply with their duties, shall be liable to a fine of two dollars for each offence, to be col- lected and appropriated as other fines under this phapter, TITLE XX.] COMMON FIELDS. 279 41. Every notice required to be given unless herein Chap. 73. otherwise directed may be a verbal notice to be given to Notices may be the parties in person or left at their dwelling houses if othOTwiJo'**^' known, and within the distance limited in this chapter. specified. 42. Two-thirds in interest of the proprietors of any Two-thirds of marsh, swamp or meadow land, may make choice of a m.?y choose coi- collector, overseers and assessors ; may order, confirm or IftheToffie^ers, disallow any plan of lands, and settle the wages to be paid ^^^"oV I'c ^ °^' to or for the collector, overseers, laborers, carts or teams, and the price to be paid for materials, and cause the same to be entered in the book of record for the guidance of the commissioners. 43. No commissioner shall be liable for any act of his commiasioner, T ' jy^ T. T- 1-11 how far liable predecessors m omce about any work in which such com- for his prede- missioner is engaged, unless for money he might or could "^^""^'^ ''°'^' have collected on account of work done by his prede- cessors. OHAPTEE 73. OF COMMONS. 1. The sessions shall make regulations respecting com- Sessions to hare mons in the several townships and enforce the same by SlnToffom- penalties not exceeding eight dollars ; and they shall have ™°"^' the general management of the commons and the control of the supervisors in the discharge of their duties in relation thereto. 2. Nothing in this chapter contained shall extend to Halifax com- the city of Halifax nor to any commons regulated by a Sons^°e^gS?^ed special act remaining unrepealed. exempted.'"''^ OHAPTEE 74. OF CO MM ON FIELbS, 1. Each proprietor of lands lying unfeticed or iti a Lines and common field shall once in two years, on six days notice how"kepfup. given him or his agent by the adjoining proprietor, run the lines, and make and keep up the boundaries of such lands, by stones or other sufficient marks j and any person neglecting so to do shall forfeit four dollars. 280 COMMON FIELDS. [part Chap. 74. Regulations to be made at general annual meeting. Regulations to be recorded. Pine for non- compliance with regula- tions. Proceedings to compel the erection of fences. Brands to be entered in clerk's book ; fee therefor. S'ine for a second entry of same mark. 3?ine for un- authorized or counterfeit brands. Proceedings to compel proprie- tor of adjoining lands to repair his fences. Proprietors in common iields desirous of fen- 2. The proprietors of common iields shall meet an- nually on the first Monday of September, or on some other day to be appointed at a general meeting, at some convenient place, and by vote of a majority in interest of those present may make regulations respecting the man- aging, fencing and improving the same, and keeping the fences thereof in repair, and the making and repairing of roads and bridges in and across such common fields as may from time to time appear expedient. 3. The regulations shall be entered in a book to be kept for the purpose, and shall be signed by the chairman of the meeting ; and the production of the book and proof of the entry made therein shall be sufficient evidence of the regulations. 4. If any person shall not comply with the regulations, he shall forfeit a sum not exceeding two dollars. 5. In addition to any penalty imposed by this chapter, if any proprietor shall after three days notice from another proprietor, neglect to obey any regulations of the proprie- tors, under which he shall be bound to make or repair any fence, the fence viewer shall on application, make or repair such fence, if he shall think it insufficient, and the person so refusing shall pay double the expense to the fence viewer. 6. Every brand or mark adopted by the proprietors of any common field by their regulations, for branding or marking animals to be turned thereon before being used, shall be entered in the town clerk's book, and he shall receive twenty cents therefor. 7. The town clerk after entry of such brand or mark shall not enter any other brand or mark similar thereto under a penalty not exceeding forty dollars. 8. If any proprietor of a common field or any person by his direction, shall with a brand or mark not recorded or entered by the town clerk, brand or mark any animal for the purpose of turning the same into a common field, or shall counterfeit any such brand or mark for the pur- pose of branding or marking any animal, every person so offending or being accessory thereto, shall forfeit a sum not exceeding twenty dollars. 9. Every proprietor of any field adjoining a common field enclosed and improved, in case his part of the fence dividing his land from such common field shall become defective, shall immediately make the same a legal fence ; and in case of his neglecting so to do within three days after notice given him by the field keeper or any proprietor, any fence-viewer on application may forthwith cause the same to be repaired ; and the person who ought to have repaired the same shall pay double the expense thereof to the fence-viewer. 10. If any proprietor in a common field shall desire to have his land separately fenced, he shall unless otherwise TITLE XX.] COMMON FIELDS. 281 assented to by two-thirds in interest of tlife whole ptoprie- Chap. 74. tors, bear the whole expense of fencing the same, and cmg kIirii bear shall be bound to keep such fence in repair at his indivi- 'he whole cx- - ^ -t Jr pen?-e unless dual expense. Ui-o-thircls in In- 11. At the annual meeting the proprietors shall appoint c^mmuterof from among themselves a committee of not less than three ™o""'''f ®™™4'j| nor more than five, to carry into effect the regulations their 'duty. made respecting such common field for the ensuing year. 12. Whenever the committee shall find it necessary to instructions as raise money to carry into eftect any regulation not applj-- for'varioM pur- ing to the making or repairing of roads or bridges in or p°ses. across such common field, they shall assess the amount on the several proprietors or occupiers of the common field by an even and equal rate, according to the quantity and quality of land held ; and in cases of regulations applica- ble to the making and repairing of roads and bridges in or across such common field, the committee shall assess the amount on the proprietors or occupiers by an even and equal rate, according to the benefit to be derived from such roads and bridges by each proprietor or occupier respectively. 13. The last section shall not extend to any common section 12 not field on the Grand Prairie or Wickwire dikes in Horton, orandPraMe. but the committee for any common field on such dikes shall have power to make and repair all fences, gates, roads and bridges in, across or around the same, to call meetings of the proprietors, giving three days notice to all proprie- tors residing within six miles of their clerk's office, and to do all acts necessary for the security and improvement of such common field, and to notify the commissioners of sewers of said dikes of such expense; and the commis- ^°Jtle 0' suJh sioners shall include the amount in any sum of money to dikes. be by them assessed upon the proprietors of such dikes as ordinary dike rates, and shall apply such amount in pay- ment of the expenses incurred, as certified by such com- mittee. 14. The committee may by writing appoint a person to collectors ap- coUect from the proprietors or occupiers the several sums mTttel'! thefr™' assessed upon them respectively ; and the collector upon '^'^'y- neglect of any party assessed to pay the amount for which he shall have been rated, after due notice of such assess- ment, may collect the same as if it were a private debt due him. 15. The committee may include in any sum to be •^"™'\°j';® *" assessed, one dollar for the attendance of each of their be included m number, for every day actually employed in carrying the ''^^^^^'"™'' regulations into effect. 36 282 shipping and seamen. [pam i. Chap. 75. TITLE XXI. OP THE REGULATION OF TEADE IE CEETAIN CASES. OHAPTEE 75. Part tlie First. OF SHIPPING AND SEAMEN. Examination of ^ Examinations shall be instituted for persons wto masters and . ^ ^ _ J^ mates of fo- are or intend to Decome masters or mates or loreign going shi|si^°'°^ ships, registered in and belonging to this province, in accordance with the provisions of part third of the im- perial act, entitled "the merchant shipping act, 1854," and the acts in amendment thereof. focai'bo^d^of"'^ 2. The governor in council may appoint local boards rafeTfOT^hiir *^^ examiners at such ports in this province as he may guidance. dccm ueccssary for the purpose of conducting such ex- aminations, and may lay down for the guidance of such boards such rules and regulations as respect the examina- tions and qualifications of the applicants as shall as nearly as possible correspond and be consistent with the rules and regulations in that behalf required by the merchant's shipping act ; and such rules and regulations shall in all respects be strictly adhered to by such boards of exami- Penaity for ncrs, Under a penalty of one hundred dollars for any devi- breach of rules. .•.-in ation theretrom. appointmen't^" 3. In addition to the local boards mentioned in the of'/c""'""^' preceding section, the governor in council may appoint a board at Halifax, to be called " the central board of examiners," and such central board shall have and exercise the functions of the board of trade, under section 134 of the imperial act hereinbefore referred to, and they shall report half-yearly to the board of trade. Certificates of 4_ i^j^g local boards of examiners shall duly examine competency — • . . ..,, _'',.- how granted, each applicant m strict compliance with the rules laid down for their guidance in that behalf ; and if such applicant shall pass a satisfactory examination as regards his sobriety, experience, ability and seamanship, a testimonial shall be given to him by such local board to the effect that he is competent to act as a master or as first, second or only mate of such foreign going provincial ship ; and on such testimonial being presented to the central board such board shall grant a certificate of competency, to the effect that he is competent to act as master, first, second or only mate of such foreign going ship, as the case may be, and con- taining the other particulars required by such imperial TITLE XXI.] SHIPPING AND SEAMEN. 283 act ; and such certificate shall entitle the recipient to all Chap. 75. the rights and privileges enjoyed in that hehalf hy persons Privileges of to whom certificates of a similar kind are granted under }'°^'^f^ of ""si'- tne act nerembefore referred to. 5. No provincial foreiern a-oins; ship shall go to sea from ¥° foreign go- i • ii • • ° °i ° ,1 ^ i ° J.1 o T iig ship to go any port m this province unless the master thereot and to sea unless the mates thereof have obtained and possess certificates of materposs'lss competency as provided in the preceding section ; but <=ortificate. nothing in this section shall apply to provincial ships ^"""p'^o"'' trading vpith the United States of America, British Ameri- can Colonies, or British and Foreign "West Indies. 6. All certificates shall be made in duplicate, and one fl J'^j.^';^'^ *° ^® part thereof shall be kept and recorded in the office of the central board, and the other shall be delivered to the party entitled thereto ; and every person fraudulently procuring, Penalty for ai- obtaining or altering such certificate, or permitting the cerafiate!' ™^ same to be used by any other person, shall for each ofence be deemed guilty of a misdemeanor. 7. Each applicant for a master's certificate shall pay a Fees. fee of twelve dollars, and each applicant for a mate's certificate shall pay a fee of eight dollars to the local board of examiners ; one-half of such fees to be paid in advance on the application being made, and the other half on receiving the certificate ; provided that if such applicant Proviso, shall not pass his examination, he shall forfeit the sum so paid in advancQ. 8. If the central board or local board of examiners CAses in which 1 iiTiii. i i-j? eertifioate may have reason to believe that any master or mate is irom be cancelled or incompetency or misconduct unfit to discharge his duties, '^"^po'»tii-in f. 111* • 1 "11 •* ot smoked herrings, not in accordance with the provisions of this chapter, shall be liable to a penalty of fifty cents for every box so inspected and branded. FISH OIL. hSw'^brlinded' ^^- ^^ cvcry cask of fish oil guaged shall be branded or cut with a double iron, the initial letters of the christian name of the ganger, and the whole of his surname, and the word "cod," "dog," "whale," "seal," or whatever word will express the description of the contents. andfles' "^"'^ 27. JSTo guagcr shall be compelled to leave his residence to guage a less quantity than five barrels ; and the fees for guaging shall be at the rate of twenty cents a puncheon, or fifteen cents a barrel. Kerfo?m'is!onI 28. Any guager who shall falsely brand any cask of au<=*- fish oil, shall for every gallon, forfeit ten cents. Pine for acting 29. If any pcrson shall act as a public guager of fish withoSr^OTtho- oil without having been duly appointed and sworn, he "'^' shall for every offence forfeit twenty dollars. SALTED BEEF AND PORK. 9"^ii«e^ and 30. There shall be three qualities of salted beef and description ot , ^ , . ^ ^ ^ . inspected beef pork respectively, which shall be designated " mess, P" ■ "prime" and "cargo." "Mess beef" shall comprehend all large and fat beef of the first quality, without hocks, shins or neck pieces; "prime beef," good and well fatted beef of the next quality, each barrel containing one round at least and not more than two hocks or shins and half the neck ; and " cargo beef" inferior quality beef, each barrel containing not more than three hocks or shins and half TITLE XXl.j PROVISIONS, LtJMBfiR, fUEL, ETC; 329 the neck. " Mess pork " shall consist of the rih pieces Chap. 85. of good fa't hogs only; "prime pork" of the next best pieces, with no legs, and not more than three shoulders and twenty pounds of head in any one barrel ; and " cargo pork" shall be fat and merchantable, with no legs, and not more than four shoulders and twenty-five pounds of head in a barrel. The snouts above the tusks and the ears shall be cut off all the heads and the brains and bloody grizzle taken out. All pieces of pork shall as nearly as possible be cut square, and mess pork as near as may be to the weight of four pounds ; and no piece of prime or cargo pork shall exceed twelve or be less than four pounds in weight. 31. The staves and heading of the casks in which salted casks for pack- beef and pork respectively shall be packed for exportation, an^ipork; thtfr shall be made of good seasoned hardwood, free from sap meMWDs'!'* "*'' and every other defect ; and each cask shall be secured with two iron hoops and fourteen ash, oak, yellow birch, hickory, or maple hoops ; and the casks to contain beef or pork for home consumption shall be made either of the above descriptions of hard wood, or of good seasoned spruce with spruce or hardwood heading, free from every defect, with hoops similar in number and quality to those required for casks intended for exportation, with the exception of the two iron hoops for which wooden ones may be substituted, the heads in all cases to be made of good thick stuff, and the hoops to be well set and drove. The dimensions of pork and beef barrels shall be seven- teen inches between the chimes and twenty-eight inches long, and shall not guage less than twenty-seven nor more than thirty gallons. Half barrels either for beef or pork shall contain not less than fourteen nor more than fifteen gallons. 32. Every barrel shall contain two hundred pounds nett casks to eon- weight of beef or pork, not less than three ounces of salt- ^efght oTmeS petre, and ifpork, half a bushel of salt, and if beef, a peck ^^^"^^'s"/;^^'- and a half of salt ; the salt to be Turk's Island, Bahama tion. Island, or Saint Ube's ; and every half barrel shall contain one half the quantity and quality of beef or pork, salt and saltpetre, above prescribed for each barrel respectively. 33. The inspectors and re-packers shall within the Duty of inspeo- ,.. .^_ T ■»■,, . -, tors and repac- districts assigned to them respectively examine and sort kers; mode of all salted beef and pork intended for exportation or sale, ^™°"^'°s- and see that the same and the casks in which they are packed are of the qualities and dimensions hereinbefore in that behalf prescribed, and shall brand on one of the heads of each barrel the figures " 200," and " 100 " on each half barrel, and the words " mess," " prime " or "cargo" "beef" or "pork," as the case may be, the name of the inspector, and the place of inspection or re- packing, at full length, in plain legible characters ; and 42 330 PROVISIONS, liUMBEE, FUEL, ETC. [pART I. Chap. 85. Beef and pork, how prepared for repacking. Fees of inspec- ters. Fine for mis- conduct. Fines for ex- porting unin- spected beef or pork. Proceedings where there is suspicion that uninspected beef or pork has been ship- ped. Forfeiture for shifting or in- termixing re- paelced beef or porli. tliey shall carefully secure their branding irons, so as to put it out of the power of any person to use the same. 34. Ko beef or pork shall be repacked until it has laid in salt fourteen days. 35. The inspectors shall receive for inspecting or re- packing each barrel of beef or pork twenty cents ; for each half barrel twelve and one half cents ; for putting on each hoop wanting, three and one half cents; and for tiagging, nailing, pegging and pickling each barrel, twelve and one half cents, and for each half barrel eight and one half cents ; the owner to supply the salt. 36. Any inspector or re-packer who shall inspect, re-pack or brand any cask of salted beef or pork contrary to or sliall in any way offend against these provisions, shall forfeit eight dollars for every offence. 37. All salted beef or pork, packed or re-packed, whether for home consiimption or exportation, shall be inspected, re-packed and branded in the manner here- inbefore prescribed ; and any person who shall ship for exportation any salted beef or pork without being so inspected shall forfeit eight dollars for each cask ; and any master having the same on board his vessel shall forfeit four dollars for every cask. 38. If any inspector or re-packer shall have reason to suspect that any salted beef or pork is shipped contrary to the last section, he may apply to a justice of the peace, assigning under oath the causes of his suspicion ; and the justice, if he shall think the suspicion well grounded, shall issue his warrant to the inspector to board and search the vessel ; and if any salted beef or pork not inspected, re-packed or branded, shall be found therein laden, any justice of the peace, upon the application on oath of such inspector, shall direct his warrant to the sheriff or to any constable of the county, commanding him to enter the ^essel and cause the same to be re-landed and delivered to the owner, upon his paying all expenses of the warrant, search and re-landing. Any person obstructing the search or re-landing shall forfeit two hundred dollars. 39. If any person shall take out of the cask or shift or intermix any salted beef or pork which has been duly re-packed and branded, and shall load on board any vessel or sell the same, he shall forfeit two hundred dollars. INSPECTION OF FRESH BEEF. Fresh beef; re- gulation for weighing, &e. 40. Fresh beef slaughtered in the province and sold by weight at a stated pi'ice shall if required be inspected and weighed by an officer appointed for the purpose, to be named by the seller, who shall at his discretion make a fair allowance to the purchaser for any loss he may sustain by the same being weighed within four hours after the TITLE XXI.] PROVISIONS, LUMBER, FUEL, ETC. 331 slaughter, or for any bruises found thei'eon, or to the seller, CitAP. 85. by making compensation to him for what may have been improperly trimmed off or reduced in weight by the purchaser. The hide and tallow shall if the seller so require be weighed with the carcase and paid for by the purchaser as for the like quantity of beef; and it shall be imperative upon the purchaser to take such hide and tallow, under a penalty of four dollars for each carcase. 41. Ifothing in the preceding section 'contained shall ^^^j.^'jj^*^®^"-^'^! prevent any person from selling or purchasing live cattle contracts ex- by weight, nor shall extend to any contract with the go- operation'ofiapt vernment or any public department. section. 42. Where no more than two carcases shall be inspected offl<"2i-s' fees. and weighed at one time, the officer - shall receive fifteen cents for each ; and where three or more, ten cents for each. 43. The oflScers for every neglect of duty shall respec- Fine upon ofR- tively forfeit not less than eight nor more than twenty of duty. °^^ ""^ dollars. BREAD. 44. aA bread intended for sale shall be marked in ^Jw marye"d^' Roman characters with the initial letters of the grain of the flower or meal of which it is made, and with, the initials of the christian and surname of the baker, and shall be also marked with the weight thereof. 45. All bread intended for sale shall be made to the ^J'^^'fJ?' °^ following weights respectively, and no other, viz : four pounds, two pounds, one pound, and eight ounces. 46. 1^0 person shall sell any bread" that shall not be ui^arked"'"^ marked in accordance with the forty fourth section ; and any bread. person violating the same, by having in his possession, sell- ing or ofl'ering for sale any bread not duly marked, shall forfeit tor every loaf not duly marked, not less than twenty cents nor more than one dollar. , 47. Every person selling bread shall keep a pair of Persons seiimg scales and weights, in order that the purchasers of such ketp sc^es and bread may if they require, have the same weighed. weight?. 48. Any justice of the peace or constable authorized by justices orcon- the warrant of a justice, or the clerk of the market, may zed'''may"se°iz6 visit the premises wherein bread is made or sold, and may ^^^^^^. gf;™f' of search for and weigh all bread therein ; and if any bread weight, as for- be found therein under the prescribed weight or not marked as herein directed, the same shall be seized, and on proof of the fact before a justice, it shall be disposed of to poor persons under the direction of such justice. 49. If any person shall obstruct or oppose the officer in ftyj,';tkiK°ofli- making such search or seizure, he shall forfeit not less than cer. four dollars nor more than eight dollars. 50. Any person selling bread deficient in weight, and bread'^°short°o| the oflfence being proved by the same being weighed within weight, 332 PROVISIONS, LUMBER, FUEL, ETC. [PART I. Chap. 85. twenty-four hours after baking, before a justice, shall un- ~~ less the deficiency appear to haye been occasioned by some unavoidable accident, forfeit not less than ten cents, nor more than fifty cents for every half ounce deficient. viStaOT r"^ 51. If any servant or journeyman in the employ of a noymen offen- baker shall ofFcnd against these provisions, he shall forfeit '°^' not less than four nor more than eight dollars, and in de- fault of payment he s];iall be imprisoned not less than seven nor more than fourteen days. Baker maybe 52. If any baker shall pay any of the foregoing penal- finosTnourred ties in consequcuce of the vpilful neglect or default of his misoondire'rof Servant or journeyman, any justice of the peace, upon the seryants. application of such baker, may cause the offender to he brought before him and order him to pay a reasonable sum by way of recompense, and if he shall not comply with such order may commit him to jail for a period not ex- ceeding a month. Loaves made to 53. Thcsc provisious shall not apply to loaves made to rnK'*'^i'e°'s"'tifan ordcr and rasped by the desire of the customer, nor to excepted^"""'^' loaves Or cakcs sold, weighing less than half a pound. Limitation of 54. Prosccutious for breach of auv such provisions shall suits be commenced within three days after the ofl'ence com- mitted. GRAIN AND CORN. we^iRht of grain 55. Merchantable grain and corn shall be of the follow- bushei. ' ^"'^ ing weight per bushel, viz : wheat sixty pounds ; foreign barley, fifty-two pounds, and if the produce of the pro- vince, forty-eight pounds ; rye, fifty-six pounds ; Indian corn, fifty-eight pounds; oats, thirty-four pounds; and malt, thirty-nine pounds, wiieit and bar- 56. All whcatand barley not the produce of the pro- p1odue°e*d,'t™o vincc shall be sold by weight, and the number of pounds sold by weight, by ti^g last scctiou established as the standard weight of a bushel thereof respectively shall be deemed to represent a bushel of such wheat or barley. Grain sold on 57. AH grain and corn sold on board of and intended livered from a to be delivered from any vessel, shall be weighed and wt1gh4d*°and mcasurcd by a sworn measurer ; but grain or corn may be ^OT^n'men'^su-^ exported or be sold in a store without his intervention, rer. unlcss the purchaser require to have the same weighed or measured by such officer. Heated or uii- 58. If the mcasurcr shall find the same heated, or in ^rtin not fo be any othcr respect unmarketable, he shall inform the pur- of^uSies3''by"re- chascr, and shall not take any account thereof unless at cliaser"^ P"''" the request of the purchaser. Feesofmeasu- ^^- The grain measurers shall receive from the seller rersj^ their mea- for inspecting and weighing or measuring grain or corn, at the rate or fifty cents for every hundred bushels. The measures used by them shall in all cases b§ struck with a straight stick rounded at t|ie edges, surcs. TITLE XXI.] PROVISIONS, LUMBER, FUEL, ETC. 333 60. If any person shall sell or deliver any grain or corn Chap. 85. m violation of these provisions, he shall forfeit ten cents Fines for vioia- for every bushel of such grain or corn. ^';™ °/ p™^'- 61. If any grain measurer shall undertake to attend pine upon mea- the weighing and measuring of grain or corn from more ™™ti"ct?"^ ™'^' than one vessel at the same time, or shall be guilty of any neglect or dereliction of his duty, he shall forfeit a sum not exceeding twenty dollars for each offence. FLOUR AND MEAL. 62. All barrels and half barrels of flour and meal wi'ighed;'^^ brought into or offered for sale in the city of Halifax, or in J™f ^^"^ ''"' any of the counties, townships or districts for which weighers of flour and meal may hereafter be appointed, shall before being used or offered for sale or carried out of the city or any such county, township or district, be weighed by one of the weighers of flour and meal, and each barrel shall contain not less than one hundred and ninety-six pounds nett weight, and each half barrel not less than ninety-eight pounds nett weight. 63. Every barrel or half barrel found to be of full Barrels, 4c. ■ T 1 n 1 1 Til 1 -1 -11 ••■! how branded. weight shall be branded by the weigher with the initials of his christian name and his surname at full length, and with figures denoting the nett weight. I*fo barrel or half barrel deficient in weight shall be branded until the im- porter or owner shall have the deficiency supplied. 64. Every person sending from or offering for sale Fine for seiung within the city of Halifax or within any such county, lig'hto^f weight, township or district, any barrel or half barrel of flour or °' °°' branded. meal deficient in weight or without its having been pre- viously branded, shall be liable to a penalty not exceeding four dollars for each barrel, two dollars for each half bar- rel, and ten cents for every pound weight deficient. 65. Weighers shall receive for weighing every barrel weighers' fees. two cents and every half barrel one cent from the person employing them. 66. When any barrel or half barrel shall after having Fine for impro- been branded be emptied of its contents, the brands there- emjity'^bralded on shall be erased before the same shall be refilled for the barrels, 4c. purpose of exportation or sale, and any person refilling any such barrel or half barrel without first erasing the brands, shall be liable to a penalty not exceeding one dollar for for every barrel and fifty cents for every half barrel. 67. To prevent any damage or loss sustained in un- Tare of barrels, packing flour or meal to ascertain the tare of the barrels faTned"" "^'^^'^ or half barrels, the weigher may affix a tare according to his judgment without unpacking or weighing the same, which judgment shall be final unless disputed by the buyer or seller, in which case the barrel or half barrel may be unpacked, but the reasonable expense attending the same shall be paid by the party complaining. 334 PKOVISIONS, LUMBER, FUEL, ETC. [PAKT I. CiiAP. 85. 68. If any weigher shall brand any barrel or half barrel Fine^n Contrary to these provisions he shall be liable to a penalty mlslon'u.cT ^^ eight dolkrs for every barrel and four dollars for eveiy half barrel, and every weigher offending in any other manner shall be liable to a penalty of forty dollars. facuued'floiu- 69. ThesG provisions shall not extend to the weighing we?|Kld''and °^ barrels or packages of flour and meal manufactured branded by the witliiu tlic provincc if braudcd with the name of the pro- the'imiis! ° prietor of the mill where manufactured, and which shall have the nett weight -thereof distinctly branded thereon, unless the purchaser shall require the same to be weighed by the public weigher ; and if any such flour or meal shall be sold without being so marked, or the barrel or package so branded shall not contain the full weight branded thereon, the proprietor of such mill shall be liable to a penalty not exceeding four dollars for each barrel and two dollars for each half barrel, and ten cents for every pound weight deficient. warehoused for '^^- Thesc provisious shall not extend to wheaten flour exportation ex- wMcli may be warehoused and shall be taken therefrom eepted. p , , • tor exportation. iT'^olnted • ''°^ '^^' ^^^ sessions may upon the recommendation of the their returns, grand jury annually .appoint wcighcrs of flour and meal for their respective counties or for particular townships or districts therein, in manner as township officers are ap- pointed, who when sworn shall have the same authority and perform the same duty as the weighers of flour and meal in the city of Halifax, and every weigher shall make a quarterly return to the provincial secretary's ofiice of all flour and meal weighed by him, to be made up to the last days of March, June, September and December, and de- livered within one month thereafter. to^b^e^OTid'^'^star '^^' Potatocs and all edible roots shall hereafter be sold dard weight, &c. by Weight, and the standard bushel thereof shall be as follows : potatoes and turnips sixty pounds ; all other edible roots forty pounds. TARE ON SUGAR. Tare on sugar, 73. The tare to bc allowed on the sale of brown or raw- tained!"^'^ sugar shall upon every barrel be twenty-two pounds, and upon every hogshead or other package of the weight of eighteen hundred pounds or less, twelve pounds fo\^ every hundred pounds of gross weight, and upon every hogshead or other package of such sugar above the weight of eighteen hundred pounds, the tare shall b.& ten pouods for every hundred pounds of gross weight. Fine for not ai- 74. Any pcrsou who shall not allow the full tare as ea"e"^ ^^'^^ °" herein prescribed shall forfeit fifty cents for every hundred weight of the sugar upon which such full tare sha;ll ^Qt ba allowed. TITLE XXI.] PROVISIONS, LUMBER, FUEL, ETC. 335 COAL AND SALT. ChAP. 85. 75. Coals sold from shipboard by retail sball bs gold by coais.howsoid. the ton weight of two thousand two hundred and forty pounds avoirdupois and its subdivisions. 76. All coal or salt sold from shipboard by retail in this coai and salt to province shall be weighed or measured by officers ap- ^ ""^^"i^d. pointed for the purpose. 77. If such coal or salt shall be delivered to any truck- Liable to forfei- man or other person without having been weighed or e" without ^be- measured according to the two last sections the seller i^s m«^'is"red. shall forfeit the same or the value thereof to the use of the poor. 78. The measurers of coal shall receive from the seller Feesofmea- eight and one half cents for every ton ; and measurers of ^'•"'®''^' salt shall receive three and one half cents for every hogs- head which they shall respectively measure. 79. If any measurer of coal or salt shall undertake to Fmeonmeasu- attend the admeasurement of coal or salt from more than rers^fo'^«"scon- one vessel at the same time, he shall forfeit a sum not exceeding eight dollars for each offence ; and for any neglect or misconduct other than the oifence last men- tioned a sum not exceeding twelve dollars. 80. Every person who shall wilfully sell or dispose of Penalty for mis- any coal within this province under any name or design a- of kTndo*f^coai, tion other than that of the mine or locality from whence the same may have been obtained, shall forfeit a penalty of forty dollars. 81. Any shipmaster or other person bringing coal to shipmastei' any port in this province from any mine therein, shall oe?tiflrate''of exhibit on demand thereof to any person desirous of pur- S'h°e''n'r^e*quested chasing coal a certificate from the proprietor or shipping officer of the mine from whence such coal has been shipped, stating the name or locality or other known designation of such coal and the date of shipment thereof, which certificate the proprietor or shipping officer is hereby required to give to the shipmaster at the time of the ship- ment of such coal. 82. Any proprietor or shippina; officer refusing to arive Proprietor, &&., ./V •■ n \ • r* eivine false cef- such certificate or giving a false certificate, or any ship- tiflcate; penai- master or seller of coal refusing to exhibit such certificate *^' on demand, or exhibiting a false certificate, shall re- spectively forfeit twenty dollars. 83. Every such certificate shall on the discharge of the certifleate deii- cargo of coal to which it refers be delivered up by the tor? holder thereof to the collector of customs of the port, to be placed upon the file in his office. SOLE LEATHER. 84. Every inspector of sole leather shall provide him- sofeTa*°her°^ self with proper scales and weights, and shall weigh every »haii keep 336 PKOVISIONS, LUMBER, FUEL, ETC. [PART I. Chap. 85. side of sole leather presented to him for inspection, and scales and shall impvess thcrcon — dutf on'inspeo- 1°. His own sumamc and the name of the place for and numbed to which hc is inspector. be impressed. 2°. Thc word " bcst " if the leather be manufactured of good hides and in the best manner. 3°. The word "good" if the leather be manufactured of good hides in a merchantable manner. 4°. The word " damaged " if the leather be manufac- tured of damaged hides in a merchantable manner. 5°. The word " bad " if the leather be not of one of the qualities above mentioned. 6°. The weight of the side shall also be distinctly im- pressed thereon, either in figures or in words at length. from wiight ^^- '^^^ inspector shall make such a deduction as he when leather is shall think reasonable from the actual weight of every side ?o°r 's lees""*"^"' of sole leather inspected by him which shall not be per- fectly dry, and he shall receive five cents for every side of sole leather which he shall inspect, weigh and stamp. in'gfor''s'aie'Ifn- 86. If any person shall ofler for sale any sole leather fe'ather'* ^"'^ wliict shall not havc been duly stamped he shall forfeit a sum not exceeding one dollar for every side. win^of°dut'°if" ^'^" ^^ ^^y inspector shall violate his duty he shall for- inspeotor. felt & suiu uot cxcecding four dollars for every oflFence. HAY, weSh^d^ 88. Hay may be weighed in scales or by steel-yards weighers' fees, dulf Stamped by the clerk of the market, and weighers shall receive at the rate of two cents for every hundred weight of hay weighed by them, and seven cents for every mile they shall be required to travel if the distance shall exceed one mile. COEDWOOD. cordwood for 89. Evcry stick of cordwood intended for retail shall "tyand'dimeS- mcasurc four fcct iu length, accountiug half the scarf, and sions. ]3e sound hardwood, and every cord shall be of the full length of eight feet and four feet high and piled close. shi'1^a?d fo°b? ^^' "^^^ cordwood sold from shipboard shall be surveyed measured ; and measured before sale by an ofiicer appointed for the measurers' fees p^ppQgg^ ■yp]jQ giiall rcceivc scvcu ccuts from the scUcr for every cord by him surveyed and measured. I'ine for selling 91. • Persons Selling such cordwood without having the meas°ured!'°^ samc survcycd and measured under the last preceding see^ tion shall forfeit the same or the value thereof. undimension- 92. All sticks of such wood uot of the requisite length ed wood to te T TT T . , T T ,T ■*■ ^ rejected. shali DC rejected by the measurer. Provisions iti 9g. Persous offering any cordwood for sale shall pile all case of rottea ii-li°'V.<< i it or crooked the crookcd and rotten sticks, if any, sepai'ately, and it on TITLE XXI.] PROVISIONS, LUMBER, JuilL, Eld. §37 the survey tlie measurer shall find any rotten Avood ot any Chap. 85. crooked sticks in the cord which shall prevent the same being piled close such crooked or I'otten sticks shall be rejected, and the deficiency in the cord made good before sale thereof. 94. If any measurer shall violate his duty, he shall for- Fine for mea- feit a sum not exceeding four dollars for every oftence. ^rduty" " '°^ LUMBER. 95. In the survey of boards there shall be four quali- ^^/qfiauae*- tieS, viz. : their descrip- ' tion. First. — Clear boards at least one inch in thickness. Second. — Merchantable boards of first quality, sawed of equal thickness throughout, and when not hardwood, squared at the edges with a saw ; to be free from rots, wanes, worm holes and auger holes ; at least seven-eighths of an inch in thickness, and containing not less than ten superficial feet. Third. — Merchantable boards of second quality, of the same dimensions, and free from rots, shakes and worm holes; and Fourth. — Refuse, to include all other descriptions of boards. 96. All dimension deals shall be not less than twelve ?'°?®°i'2°.j T t ' 1 -T TT deals denued. feet long, nine, eleven and twelve inches wide and three inches thick respectively, having an allowance of from one to two inches in the length, from a quarter to half an inch in the breadth, and from one-eighth to a quarter of an inch in the thickness : they shall be smooth and fair, of equal width and thickness throughout, butted at both ends with a saw, free from rots, sap, stains, large knots, rents, shakes, worm and auger holes, and shall have the stubshot sawn ofil 97. All plank intended for exportation, except hard- poX'tim; their wood plank, shall be from ten to twenty feet in length, size and quality. nine inches in breadth, and three inches and one-eighth in thickness, and of the same quality as dimension deals. 98. All ton timber for exportation shall be straight SpoSntUs lined and squared, and with not more than one inch of size and quality. wane on the edges, without ofl'sets or joints, square, butted at both ends, and free from all marks of scoring, rots, splits or worm holes which may be detrimental to the same. 99. Merchantable spruce or pine timber shall be six- ^ruc^fpine'^ teen feet, and hardwood timber ten feet in length at least, and liardwood ,,'., ^ , ', P ' timber; the and at least ten inches square ; and where it does not ex- size and quality. ceed sixteen feet in length, the ends shall be of equal size, and all ton timber shall be measured by the girth, one quarter part thereof to be taken as the side of the square, shingles to be 100. In the survey of shingles there shall be three ties ; thlir'^d*-'' qualities, viz. : ^«"p''°°»- 43 338 PROVISIONS, LUMBER, FUEL, ETC. [pART I. Chap. 85. No. 1. — Pine or cedar shingles not less than eighteen inches long, four inches wide, and three-eighths of an inch thick at the hut, and clear of sap, slash, shakes, twists and worm holes. E^o. 2.— Pine, cedar, spruce or hemlock shingles not less than sixteen inches long, three and a half inches wide, and from a quarter to a quarter and a sixteenth of an inch thick, to be free from sap, slash, shakes and "worm holes ; and ■ 1^0. 3. — Refuse, to include all other descriptions of shingles. ITo. 1 and 2 shingles shall be put up in bundles not less than twenty-five tiers or courses twenty inches wide, four bundles to be considered as a thousand. All shipping shingles for exportation shall be half an inch thick at the but and extend the same thickness three- fourths of the length, and be shaved from thence to the point, and from four to four and a half inches wide. c^apboards^ 101. Clapboards shall be four feet four inches long, five and desenption inchcs widc, and half an inch thick at the back. Lathwood; de- 102. Lathwood shall be of fresh growth, straight rift, how''meas°Jrld^ ^i"*^® from bark, heart and knots, and measured by the cord. descn'ptfonaDd ^^^- Hogshcad stavcs shall be forty-two inches long, mode of caiou- from three and a half to five and a half inches wide, and three quarters of an inch thick on the thinnest edge, and not more than one inch on the back. Barrel staves shall be thirty-two inches long and half an inch thick on the thinnest edge, and not exceeding three quarters of an inch on the back ; to be of good rift, fairly split, free from twists, knot holes, rotten knots, worm holes and shakes, and shall be calculated by the tale of ten hundred to the thousand. Timber.iumber 104. Upou any contract or bargain for a quantity of purehasel'^for timber or lumber for exportation, the same shall be under- shaii be'asle- stood to mcau that which is hereinbefore described, and sCTibe™'^''^" ^^® purchaser shall not be obliged to receive any other unless under a special written agreement specifying what he actually is to receive. Duty of lumber 105. The survcyors of lumber shall when required dili- ^rrey!^"^^ ™ ^ gently examine and survey every description of lumber described in any of the preceding sections whether for sale or exportation in their respective districts, and shall mark the same as directed by this section at the time of the survey ; but if it shall have been previously surveyed in the province, he shall only re-survey and mark anew the same when he shall have any doubt of the measure ; and on every survey he shall furnish the seller and the pur- chaser each with a certificate thereof specifying the quality ■ and dimensions, and on every stick of ton timber shall mark in figures the contents in cubic feet, the initials of his name, and the private mark of the purchaser ; and on TITLE XXI.] PROVISIONS, LyMBEB, FUEIi, ETC. 389 all deab and plank shall mark in lead on the ends, the Chap. 85. length, hreadth, thickness and auperfioial contents and his own private mark; and on all boards the superficial con- tents and his private mark. 106. The surveyors of lumber shall receive the follow- Fees of survey- ing fees, viz : for measuring and surveying all ton timber, °^^ °^ lumber. five cents per ton, together with seven cents for every mile they shall necessarily travel in coming to the place of the survey. For every thousand superficial feet of deals, plank, scant- lings and boards respectively, fifteen cents for surveying and five cents for marking ; and for viewing only where the same shall have beeii previously surveyed and the surveyor shall doubt the measure, five cents. For every cord of lathwood, ten cents. For every thousand shingles, five cents ; and for culling and repacking, ten cents. For every thousand hogshead staves, thirty cents. For every thousand barrel staves, fifteen cents. 107. The surveyor's certificate shall be binding between IfleMe^rtheir' the seller and purchaser, but in case they disaairee, either effect; p'rovi- T,-"-. ,•. ' , "^ T *- . ' sions in case of party may call m three other surveyors who are m no way dispute. mterested in the matter in dispute, to re-survey the same, and their decision shall be final. If the first survey be confirmed, the expense of the second shall fall upon the party by whom it was had, but if the first survey is not established, then the surveyor shall bear the expense of the second survey. 108. The surveyor's fees shall in all cases be paid by Fees of survey- the seller, who shall remove all obstacles in the way of the seiFeTrselie^s surveyor which may prevent him from viewing and *"'y "" survey. measuring with facility any timber or lumber which he may be required to survey, and shall if necessary, have the same canted. But the purchaser, upon any special agree- ment therefor, or if he shall require a fresh survey, shall pay the surveyor's fees. 109. AH timber, lumber and shingles, shall be surveyed Tinober, lumber and marked, as prescribed by this chapter, before delivery forfeit'edff^loid on sale or shipment for exportation, and if any person rurveyedT^t^- shall violate this provision he shall forfeit the article or ff Hiiiifax''ex-^ the value thereof; but in the city of IJalifax entire cargoes eepte4. of lumber sea borne may be disposed of without the intervention of a surveyor between the first buyer and seller. 110. Upon the survey of shingles, clapboards and uol^fs'^and'''' staves respectively, those which are deficient ui quality or staves found T •T.iix.'xi defective to be dimensions shall be rejected. rejected. 111. All shingleg and clapboards exposed for sale by shingies andi quantities in bundles and not holding the number they are jltfedwhen°'^' marked for shall, unless it appear that part thereof have defic^enun^the been accjc|ei}tly ^ha|cen out after packing, be forfeited. jnarked qu»jj, 340 PROVISIONS, LUMBER, FUEL, ETC. [PART X. Chap. 85. Fine for de- stroying sur- veyor's marks on timber, Ac. Fine for lum- ber surveyor violating liis duty. Limitation of actions. 112. Any person who shall without the permission of the owner of any timber or lumber, alter, deface or destroy the marks of a surveyor of lumber thereon, shall forfeit a sum not exceeding four dollars for each offence. 113. Any surveyor of lumber violating any of these provisions shall forfeit a sum not exceeding twenty dollars for each offence. 114. All prosecutions under these provisions shall be commenced within twelve months from the time of the commission of the offence. Size of appU barrels. Number of hoops. Barrels to be branded. Penalty for sellmt? in bmall barrels. Not to affect flour barrels. APPLES AND POTATOES. 115. The size and dimension of barrels used for putting up or packing apples or potatoes for sale shall be as fol- lows; to wit, the length of the stave or barrel shall be twenty-nine inches and the heads between the chimes seventeen inches, with a diameter in the centre inside the barrel of nineteen inches, thus corresponding as nearly as possible in shape and size to the Canadian or American flat hooped flour barrel. 116. All barrels used for the shipment of apples or potatoes shall have 'six hoops ; that is to say, two on each end and two on intermediate spaces, and shall also have the top head planed that the barrel may be properly branded or marked. 117. The makers of all apple or potatoe barrels shall brand the initial of their christian name and their whole surname on the outside of each barrel, near the top of the stave, under a penalty of twenty-five cents. 118. Any person putting up apples or potatoes for sale in barrels of smaller dimensions than those hereinbefore described, shall forfeit to the pui'chaser as damages, an amount in proportion to any diminution of size or loss sustained thereby, to be recovered as an ordinary debt and be liable to a fine of one dollar. 119. E'othing in the four last sections contained shall preclude the use of flour barrels in the shipment of any article of produce. staves, bri rks, Ac, how coun- ted. Sessions to ap- point officers: STAVES AND BRICKS. 120. All staves, bricks and other articles which are now reckoned by the tale of twelve hundred to the thou- sand, shall be calculated by the tale often hundred to the thousand. 121. The general or a special sessions may appoint all inspectors and other office^'g ];i^9^ssary foy carrying out thg provisions of this chapter. " " ' < TITLE XXI.] WEiaHTS AND MEASURES. 341 Chap. 86. OHAPTEE 86. OF WEIGHTS AND MEASURES. 1. "Weitjlits and measures shall be according to tlie standard of ,-11^. " weights and standard now in use. measures. 2. The clerk of the peace shall be furnished at the cierks of peace expense of each county or district with a set of standard wit'h site°of ^^"^ weights and measures, which shall be accessible to every wefo-hts'^and persoH at all reasonable times for the purpose of assay. measures. 3. The clerks of the market, and in places where no cie^s of mar- such officers are appointed, the town clerks shall keep a stamped'^^^'' set of weights and measures, long, liquid and dry, which nfilsures?'"'* shall be stamped by the clerk of the peace with the letter S, and they shall be standard weights and measures. 4. Every inhabitant of each town respectively, makino- ah weights and ^.•i, T • J_^ i'^ T,° measures to be use 01 weights and measures in the sale oi uny commodity, assayed and shall in one week after public notice given by the clerks of ^'^'"p*"^- the market for such town, bring or cause to be brought their weights and measures to be assayed ; for each of ^^^^^, ^^ which assay the clerk shall have three and one half cents for his trouble, and shall cause such weights and measures to be branded and stamped with the initial letter of the town where such assay shall be made. 5. The clerks may inspect all weights and measures, inspection of and once in three months or oftener visit every inhabitant mefsuresrna- selling publicly by weights and measures, and shall have ^vhe'n not^^'^^'^ fall power and authority to seize all such not stamped or ^"■'""ied. branded as aforesaid, and may assay and mark, and dispose of the same for their own use as satisfaction for their trouble therein. 6. The penalty for selling by weights or measures not Penalty for sei- so branded shall be four dollars for each offence, and for not^brandel.'''^ selling by weights or measures less than the standard, forty dollars. 7. Whenever any commodities are sold or conveyed Hundredweight for hire by the hundred weight, such weight shall be under- huSd"'^ stood to mean the net weight of one hundred pounds Supofs' ''^°"" avoirdupois, such weight to be denominated a quintal ; and the ton shall mean the net weight of two thousand pounds, net^tTOSou"^ and all contracts concerning the sale or carriage of goods sand pounds. by weight shall be understood and construed accordingly. 342 CORPORATIONS. Chap. 87. TITLE XXII. OF CORPOEATIONS [part I, CHAPTER 87. OF GENERAL PROVISIONS RESPECTING CORPORATIONS, Corporations ; their powers and privileges. Bye-laws and proceedini?s to be regulated thereby. Proceedings, how recorded when required by the act of incorporation. 1. All corporations shall where no other provision is specially made, be capable in their corporate name to sue and be sued, to prosecute and defend actions, to have a common seal which they may alter at pleasure, to elect in such manner as they may deem proper all necessary officers, and to fix their compensation and to define their duties, and to make bye-laws and regulations not contrary to law nor repugnant to the charter or act by which any such corporation may be created, for their own government and the due management of their aftairs. 2. All corporations may by their bye-laws, where no other provision is specially made, determine the manner of calling and conducting meetings, the number of mem- bers which shall constitute a quorum, the number of shares which shall entitle the members to one or more votes, the mode of voting by proxy, the mode of selling shares for the non-payment of instalments and of transferring shares generally, the tenure of office of the several officers, and the purchase, conveyance and sale of their real and personal estate ; and they may annex penalties to their bye-laws not exceeding in any case the sum of twenty dollars for any one offence. 3. "When any charter or act of incorporation shall direct that the bye-laws and list of shareholders, or either of them, shall be registered, no bye-law of the incorporation shall be in force until a copy thereof, and also if required by the charter or act of incorporation, a list of the names of all the members of the corporation, with the amount of the gtock held by each member respectively, certified under the hand of the president and secretary, or if the company phall not have been organized, under the hands of three at least of the members of the company, of whom one at least phall have beep named in the charter or act of incorpora- tio;H, shall be recorded in the office of the registrar of deeds jn such county as may be directed by such act or charter ; and no subsequent bye-law, nor any subscription of addi- tional stock, nor the transfer of any stock or shares in the corporation, except by devise or by descent, or other act of law, shall be effectual, until a certificate thereof, under the hand of the president and secretary, shall be recorded TITLE XXII.] CORPORATIONS. 343 in the same office ; and in all cases bye-laws relating to Chap. 87. the real estate of the corporation shall before they become effectual, be recorded in manner above mentioned in the office of the registry of deeds for the county or district in which such real estate may be situate. 4. The first meeting of all corporations shall, unless First meetings otherwise provided in their charters or acts of incorpora- °*'^°'' ^ tion, be called by notice signed by any one or more of the persons named in the charter or act of incorporation, and setting forth the time, place and purposes of the meeting; and such notice shall, seven days at least before the meet- ing, be delivered to each member, or left at his place of residence, or published in some newspaper of the county where the corporation may be established, or where its principal place of business shall be situate, or if there be no newspaper in the county, then in two of the Halifax newspapers. 5. "WTienever by reason of the death, absence or dis- ^eciafcafei." ability of the officers of any corporation there shall be no person authorized to call or preside at a meeting thereof, any justice of the peace may, on a written application of three or more of the members, issue a warrant to any one of such members, directing him to call a meeting of the corporation by giving the notice as required by law, and the justice may in the same warrant direct such person to preside at such meeting if there shall be no officer present legally authorized to preside thereat. 6. Such corporation when so assembled may elect Powers and ofScers to fill all vacancies then existing, and may act upon raum when'^''"' such other business as might by law be transacted at assembled. regular meetings of the corporation. 7. ^Notwithstanding the corporation may hold real pefs'o^nai*°pro- estate, the shares of the stockholders shall be deemed to p^rty. be personal property for all purposes. 8. The real estate of the company may be sold under Real estate to ... J, 1 J. J. n ii be sold as per- execution in the same manner as personal estate, and the sonai property. sheriff" shall immediately after the sale execute a deed to the purchaser, which shall convey all the estate and interest of the company in the real estate so sold and conveyed. 9. All acts or charters of incorporation shall expire Acts to expire unless the company thereby established shall go into ope?ation"with- operation within three years from the passing thereof, in three years. unless otherwise specially provided therein. 10. All corporations whose charters after they shall JllJueth'ree''™' have gone into operation shall expire by their own limita- ^f^yo^n^'fo/^o, tion, or shall be annulled by forfeiture or otherwise, shall sing concerns. nevertheless be continued as bodies corporate for the term of three years after the time when they would have been BO dissolved, for the purpose of prosecuting and defending suits by or against them, and of enabling them to settle 344 COKPORATIONS. [part I. Chap. 87, Trustees may be appointed to wind up busi- ness within the three years. Officers and members how sued. Liability of individual members. Liability ofj directors, &Cj personally in special cases for overtrading. Acts of compa- nies valid without seal. and close their concerns, to dispose of and convey their property, and to divide their capital stock ; but not for the purpose of continuing the business for which such corpo- rations were established. 11. When the charter of any corporation shall expire or be annulled, as provided in the preceding section, the supreme court on application of any creditor of such cor- poration, or of any member at any time within the three years, may appoint a trustee or trustees to take charge of the estate and effects of the corporation, and to collect the debts and property due and belonging thereto, with power to prosecute and defend suits in the name of the corpora- tion, and to appoint agents under them, and to do all other acts which might be done by such corporation if in being that may be necessary for the final settlement of the unfinished business of the corporation; and the power of such trustees may be continued beyond the three years and as long as the court shall think necessary. 12. When any officer or member of a corporation is liable for any debts of the corporation or for acts in relation to its business, or to contribute for money paid by other officers or members on account of any such debts or acts, he may be sued therefor in the supreme court. 13. No member of any corporation shall be relieved from individual liability for its debts or obligations ; but each member thereof shall be liable as a partner to the same extent as if no corporation existed ; and in case any execution issued on any judgment against the corporation shall be returned unsatisfied, the individual real and per- sonal estate of every member of the corporation shall be liable to I'cspond such judgment under execution issued thereon in the same manner as if the same were a private debt due by such member, unless the special act creating the corporation shall exempt its members from such liability ; and any member who shall be so compelled to pay any monies on account of the debts of the corporation shall be entitled to credit therefor in the books of the corporation. 14. The directors or board of managers of any such corporation, the liability of whose members shall be limited by the act or charter of incorporation, unless otherwise specially directed therein, shall in all cases be personally liable for any responsibility incurred by them on account of the corporation beyond the amount of the stock sub- scribed without the sanction of the company to be obtained at a meeting thereof held in accordance with the bye-laws, unless such larger amount of dealing be specially author- ized by the act or charter of incorporation ; but this section shall not extend to insurance companies. 15. The acts of incorporated companies performed with- in the scope of their charters or acts creating them shall TITLE XXII.] CORPOllATIONS. 345 be valid, notwithstanding they may not be done under or Chap. 87. be authenticated by the seal of such corporations. 16. No corporation shall issue notes or bills for payment No company to n <■ fi J- - 1 i- ^1 engage in bank- ot money, tor the purpose oi circulatinor the same as money, ing or insu- or engage in any banking or insurance business unless unless spSciaiiy especially authorized to do so by its act of incorporation, authorized. and if any corporation not so authorized, shall issue such bills or notes, or shall engage in any banking or insurance business, its charter shall be thereby rendered void. 17. "Whenever in any act or charter of incorporation how'oonducted any disputes or matters of controversy in which the cor- ^^oni^a°^ny poration may be interested, or any damages to which they may become liable, shall be directed to be settled or ascer- tained by arbitration, the mode of proceeding on such arbitration, unless otherwise prescribed, shall be as follows, viz : unless both parties shall concur in the appointment of a single arbitrator, each party on the request of the other party shall by writing under the hand of th'fe parties interested, or on behalf of the corporation under the hand of the president or one of the directors and the secretary, appoint an arbitrator to decide the matter in question, and after such appointment shall have been made, neither party shall have power to revoke the same without the consent of the other, nor shall the death of any of the parties operate as a revocation thereof ; and if either party shall fail to appoint an arbitrator within fourteen days after service upon him of such written request, a judge of the supreme court at the instance of the party making such request may appoint an arbitrator to act on behalf of both parties, who may proceed to hear and determine the matters in question, and his award shall be final. If any arbitrator after his appointment die or become incapable from absence or otherwise, or refuse, or for seven days neglect, to act as arbitrator, the party by whom he was nominated, or a judge of the supreme court, may appoint in writing some other person to act in his place, and if for seven days after such substituted arbitrator shall have received notice in writing from the other party for that purpose he fail to do so, the other arbitrator may proceed to hear and determine the matters in question. Where two arbitrators shall have been appointed, they shall before entering upon the matters referred to them, appoint by writing under their hands an umpire to decide in case they shall differ, and if the umpire shall die, refuse, or for seven days neglect, to act, they shall forthwith ap- point another umpire in his place, whose award together with that of one or both of the arbitrators, shall be final. The arbitrators or umpire may call for the production of any documents in the possession or power of either party which they or he may think necessary for determining the matters referred to them, and may examine the parties and 44 346 CORPORATIONS. [PART I. Chap. 87. their witnesses on oath, and administer the oaths necessary for that purpose. Unless otherwise provided in the act or charter of incor- poration, the costs attending such arbitration shall be paid by such party or by both parties in such proportions as may- be directed in the award. The submission to any such arbitration may be by rule or order of any coui't. e^pt?4c°ofuu ^^- All joint stock incorporated companies doing busi- j oint stock in- ness in this province by agents or otherwise shall, once corporated . *- i t r^i • j.i ■ • i companies to in cvcry year, produce and tile m the provincial secre- be filed, io. tary's officc an abstract of all their receipts, expenditures, profits and losses within the province, and when required by the governor in council such rules, bye-laws, accounts and such other of their proceedings as shall be specified in such requisition. Penalty. ^Q ji^-^^y g^g]^ corporate body refusing or neglecting to furnish such abstract or to comply with such requisition, shall forfeit a penalty of twenty dollars for every month during which such default shall continue. Insurance cor- 20. On Or bcforc the last day of February in every mTifp annual year a return shall be made into tlie provincial secretary's of'p.o"'i*ci°a?e'e°- ofiice by the president, agent or manager of every com- cretary. pany, corpoi'ate body or agency, doing business as insurers in this province, of the business of insurance upon lives, against fire, and upon all marine risks done by them respectively between the first day of January and the 31st day of December preceding such return, both days being included, which return shall comprehend the number of policies entered into, the number of policies renewed, the amount insured, and the premiums paid, and in case of insurance against fire, the nature ot the property insured, whether real or personal and its situation, whether in the city of Halifax or in other parts of the province ; in case of marine risks the ports to which the vessels insured belong, where it can be known, and shall also statcthe capital and other security for the payment of losses, and where the same is situated ;■ and in case of companies and corporate bodies out of Nova Scotia, whether there is any security or capital within the province for the payment of losses, and the nature, permanency and amount thereof, which returns shall be certified to be true by the presi- dent, agent or manager of every such company, corporate body or agency respectively ; and every such president, agent or manager neglecting to make such return or knowingly make a false or defective return, shall forfeit two hundred dollars. 4fed°pler o?m- ^1. All acts of incorporation of wharf, pier or break- (Tontmuetobilt '^^^^^ Companies, heretofore passed by the legislature, ecember,i876. whether temporary or perpetual, and also all such acts of incorporation hereafter to be passed previous to the session TITLE XXII.] AGRICULTUKAL AND LAND CORPORATIONS. 347 of the general assembly, in the year one thousand eight Chap. 88. hundred and seventy-five, shall continue in force until the ~ thirty-first day of December in that year, and no longer unless renewed by act of the legislature. CHAPTER 88. OF AGRICULTURAL AND LAND CORPORATIONS. 1. Whenever twenty persons or more shall raise forty Agnouiturai dollars per annum or upwards, to be applied for the im- how°OTga°iSzod, provement of agriculture, they shall thereupon become a corporate body by such name as they shall think fit, with all the privileges and obligations in chapter eighty-seven, but such privileges shall continue only so long as there are twenty members or more in the society, and they shall annually raise the sum of forty dollars at the least and apply it for the improvement of the local agriculture. 2. Whenever any British subjects desire to form an Formation of • ■ ? J? .1 1 1 • j_ jy an association association for the purchase and improvement of crown for improve- lands on the lines of the contemplated trunk line of rail- "'*'»' °f '"Dds. ro^d from Halifax to Quebec, they may transmit the names of such persons, not less than twenty, as they wish to represent them, to the commissioners of lands and emigration, to be transmitted to the lieutenant-governor of this province, who shall thereupon, if, with the advice of council, it be determined to invest such persons with corporate powers, direct their names to be inserted in the royal gazette and a patent to issue clothing such persons and their co-partners with the privileges and legal liabi- lities of a corporation, upon the following terms, subject to such restrictions as may by the governor in council be deemed necessary : First — The name of the company and the names of its J-l'TJ'tses, lia- directors to be 'lodged in the office of the provincial secre- strietiinsofthe » tary, with an impression of its common seal. company. Second — The directors to be liable to the whole extent of their fortunes for the debts of the company, being vested with power to sue and be sued in their corporate capacity. Third — The shareholders to be liable only to the extent of their shares. Fourth — The company to purchase fifty thousand acres of crown lands on the line of railroad at such price as may be determined upon by the government, with power to purchase any further quantity, when one-half of the origi- nal purchase has been sold and settled. 348 Chap. Power of com- pany over land. Company may contract for railways run- ning through their lands. AGRICULTURAL AND LAND CORPORATIONS. ' [PART I, Fifth — The lands to be laid off in lots of one hundred " acres at the expense of the government, and numbered on the plans from one to five hundred, it being provided in the general grant, that every lot on v?hich there is not a dwelling house actually occupied, and at least five acres of land cleared and improved, at the end of ten years from the date of its purchase, shall revert to the government, and become a part of the public domain, upon a declara- tion of the governor in council to that effect, without office found. Sixth — "Where the lands purchased are in one block, and are not included in any township, they shall be formed into a township, and the inhabitants whenever they shall number one hundred heads of families shall be invested by law with all the privileges of township organization. Seventh — The capital of the company shall be limited to two hundred thousand dollars, but may be increased by four dollars for every acre of land purchased from the provincial government above the quantity specified in the fourth condition. 3. The company shall have power over such lands as they shall purchase, over mines not subject to legal reser- vations, over the standing timber, mill sites and water privileges; and may lay off and sell such lands in town- lots or blocks of less or more than one hundred acres, at their option, and for the general advantage. 4. The company may enter into contracts with any commissioners appointed by the provincial government to construct so much of the railway as will run through the lands purchased, and to work and repair such railway after it is made ; but no greater amount shall be charged for the construction and working of such sections of the railway than is paid for oonstructiiig and working other portions of the line. TITLE XXIIl. OF THE POOR. OHAPTEE 89. OF THE SETTLEMENT AND SUPPORT OP THE POOR. Ce'inition of tiie word township. 1. The words "township" and "settlement" when used in this title shall be held to mean any district set off ftnd established as a district for the support ot the poor. TITLE XXIII.] THE POOR. 349 2. The grand jury shall annually at the sessions nomi- Chap. 89. nate ten freeholders out of every township, of whom the overseers of court shall appoint five to he overseers of the poor; and popihow ap- • , ^^ • , 1 1 11 , f, .' , pointed. II any person so appointed shall ' cease to reside in the township or shall die within the period for which he was appointed, any two justices of the county may appoint another to act instead until the next meeting of the grand jury and court of sessions. 3. Every person who hath lived as a hired servant one |o'"^"™^' whole year therein under an agreement to serve the same °" ^"'"^ ' master one whole year then next before application for relief, or hath executed a public annual office therein, or hath been assessed and paid his share of poor and county rates in the township during one year at one time, shall be entitled to a settlement ; and any person who shall have -Tj. T j_ ' j_ _n n .• ^ Persons entitled resided m any poor district tor five years consecutively to a settlement after arriving at the age of twenty-one years, and who ""^ "^- ''"'"°'- during that time shall not have received aid from the overseers of the poor as a pauper, shall have a settlement . on such poor district; and all persons under the age of under age. twenty one years who have served an apprenticeship within any poor district to any trade for the space of two years, shall have a settlement therein. 4. The settlement of any legitimate child shall be that settlement of of the father, if the father have any ; if not, that of the "'"''^'■'^°- mother, if the mother have any ; illegitimate children shall have the settlement of the mother, if the mother have any ; but in case a child has no settlement by parent- age the birth-place of such child shall be the place of settlement. 5. A married woman shall have the settlement of her ^arrt^^^o^g husband if the husband have any ; if not her own settle- *"'^ women ment if she have any shall not be suspended by her marriage. 6. A legal settlement shall cease when a new one is settlement to - V 1 n . • cease when new gained, and shall not revive. one acquired. 7. When a poor district shall be divided or anew district i? ease of diyi- created the settlement of any person dwelling within such &™ ° '^ "°"' divided or newly created poor district shall be within the limits of the district in which such person may have dwelt at the time of such division or creation. 8. Any person applying to the overseers of poor of any Proceedings township for relief who shall not have obtained a settle- SI remo°vJi of ment therein shall be required to declare on oath before a * p""''^''- justice of the peace his last place of residence, and if he be found to have gained a settlement within the province a copy of the declaration certified by the justice, with the amount of expense incurred, shall be transmitted to the overseers of the poor of the township to which such per- son belongs. 9. If such last mentioned overseers refuse or neglect to if the overseers remove such person, two justices by a warrant shall cause his settlement 850 THE POOR. [part I. CnAP. 89. refuse to re- move him a warrant for his removal may issue. Examination when pauper insane. Persons near of kin and able, required to maintain their poor relations. Property of per- sona forsaking their families may if necessa- ry be seized and sold for their support. Children to be supported where deceased parents have gained settle- ment. Appeals provi- ded for parties aggrieved. In cases ot dis- puted settle- ment appeal from sessions to judge at chambers. Proceedings on appeal where a person has been unduly re- moved. such person to be removed to the township where a last settlement has been obtained, and the overseers of the poor there shall receive such person and pay to the overseers of the first named tow:nship the necessary expense incurred about his removah If the overseers of the last named township have no money in hand to pay such expense they shall stand charged therewith until the next assessment made on the township to which such person belongs. 10. In the event of any pauper whose examination it may be necessary to take as to his last place of settlement being insane, or otherwise incapable or incompetent to undergo such examination, any justice may take such other testimony under oath as to the settlement of such pauper as to such justice may appear satisfactory; and thereupon such pauper may be removed as if he had been personally examined. 11. The father, gi'and father, mother, grand mother, children and grand children respectively, of every old, blind, lame, impotent or other poor person not able to work, being of sufficient ability, shall relieve and maintain at their own charge every such poor person as a general or special sessions shall direct, and in case of refusal shall forfeit one dollar per week for such poor person, to be sued for in the name of the overseers of the poor. 12. "Where any husband or father shall forsake his wife or children, or any widow shall forsake her children and leave them a public charge, two justices on the appli- cation of the overseers of the township, shall issue a warrant to seize the goods, and to let out and receive the annual rents and profits of the lands of such husband, father or widow towards the maintenance of such wife, child or children ; and when the seizure shall be confirmed by the sessions any two overseers may as occasion shall require dispose at public sale of such goods or so much thereof as shall be necessary and shall apply the proceeds towards the maintenance of such destitute persons. 13. The children of deceased parents who have gained a settlement in any township shall, if paupers, be sup- ported by such township. 14. If any overseers on behalf of the township or any other person shall feel aggrieved by any proceedings under this chapter, such overseers or person may appeal to the next sessions to be held for the county where the township is or the person shall reside, and the sessions shall hear and determine the same ; but in cases of disputed settle- ment an appeal shall be from their decision to the next term of the supreme court in the county or to a judge at chambers. 15. If the justices on an appeal concerning the settle- ment of a poor person determine that such poor person was unduly removed, they shall then or at a future sessions order to be paid to the appellants any money that may TITLE XXIII.] THE POOK. 351 have been paid by such appellants, or may be due from Chap. 89. tbem as overseers on account of such poor person between the time of the undue removal and the determination of the appeal, the same to be recovered as hereinafter pro- vided. 16. Upon the determination of an appeal concerning costs on appeal the settlement of a poor person, or upon proof of notice iJi/aUow^d. of an appeal given by the proper officer to the overseers of the poor, though the appeal be not prosecuted, the jus- tices shall then or at a future sessions order to the success- ful party on a trial, or to the party notified if not further prosecuted, such costs as in their discretion are reasonable, to be taxed and allowed according to the rates adopted in the supreme court, which shall be paid by the unsuccess- ful party or the party giving such notice. 17. If the overseers or other person ordered to pay Amount or- such sum of money or costs, shall after service of a copy of paw-how" such order refuse to pay the same, the party in whose favor '"»<=°^'"'*' such order is made may sue for and recover the amount as if it were a private debt with costs ; and the production and proof on the trial of the order or copy thereof and of the service thereof, shall be sufficient proof of the debt. 18. Every township shall be liable to pay any expense Townships lia- which shall necessarily be incurred for the relief of a pau- of^ooorTfter per by any person who is not liable by law for his support, "ot'^e. after notice and request made to the overseers of the town- ship, and until provision shall be made by them. 19. If any person shall bring any poor and indigent pj^i'erTy'bdng-' person into any tojvnship where such person bas not a fng a pauper lawful settlement, knowing him to be poor and indigent, '" °* °™^ '^' and shall leave him therein with intent to charge such township with his support, he shall forfeit a sum not ex- ceeding eighty dollars for every such offence. 20. The inhabitants of every township liable to pay Town meetinj(8 poor rates shall hold two meetings annually if necessarj'^, for holding. to provide for the support of their poor, which shall be held on the first Mondays of April and November, except in the township of Dartmouth, wherein the first of such annual meetings shall be held on the first Monday of March. 21. The overseers of the poor in the several townships n"ifrth"meet- shall at least ten days before the times appointed for hold- ingsbyadyer- ing meetings to provide for the support of the poor, cause advertisements to be posted up in at least five of the most public places in the township, notifying the inhabitants to meet on the several days respectively for that purpose, and in case of neglect such overseers shall forfeit forty dollars. 22. The inhabitants present at such meetings having Prooeediags at first chosen a chairman to preside; shall vote sucli sums of neT tob^/votelfi money as they shall judge necessary for the support of the '"' assessors cho= sen. 352 THE POOK. [part I. Chap. 89. poor for the current year or until tlie next meeting, and incidental expenses connected therewith ; and shall choose so many collectors as they may deem necessary to collect the poor rates for the district or township within which such meeting shall be holden, and shall also choose a clerk to be called the clerk of such poor district, who shall act as clerk to the overseers of the poor for the district ; and such inhabitants shall award to their clerk a reasonable remuneration, to be fixed at such meeting, and added to the amount to be assessed on the district. Kjolrn^d'if 23. If the business of the meeting cannot be completed necessary. qu the days abovc respectively named, the chairman with the consent of the majority of those present, shall adjourn the meeting as occasion may require to conclude the business. Sone'^mi^\''i 24. If the money voted at any meeting shall be insuf- voted at subse- ficleut for the support of the poor, the inhabitants at their quent meeting. ^^^^ meeting shall votc Sufficient to make good ithe de- ficiency. Pool- houses 25. The inhabitants if deemed advisable may at such may be built of . . i -i t. X hired; title how meeting determine to erect or hire a building tor a poor how man'aged. house, and may vote money for that pui-pose and for the annual repairs and other necessary expenses connected therewith; and thereupon the overseers shall proceed to hire or erect a building as directed, the title and interest in which, when conveyed to them, shall vest in them and their successors in office as a body corporate. The over* seers shall have the control and management of the poor house and the supervision and government of the inmates, and may appoint the officers and keepers thereof, and may purchase materials upon which the labor of the poor may be profitably employed. They shall annually submit an account of their proceedings and of the general state of the institution and of their receipts and expenditures for the examination and audit of the sessions. coTiectri°fs' *° ^6. Separate suits shall not in future be brought shall be by gen- agaiust defaulters, but every collector shall make a gene- distress 7form ral return to a justice within the township, or if none given, fees, &c. j.gg^jjQ there to any justice of the county of every person upon his list, who, after demand made, shall not have paid his rate ; — and the collector shall make oath in writing before such justice, setting forth the name of every defaulter, the sum assessed, that the demand has been made, and that the rate is unpaid ; and thereupon such justice shall forthwith issue a general warrant of dis- tress against the several defaulters in the form in the schedule, directed to a constable not being such collector, commanding him to levy upon the goods of each person named in the warrant the sum due by such person, with constable's and justice's fees. The constable shall forth- with execute the warrant and pay over the amount col- TITLE XXIII.] THE POOR. 853 lected to the collector, who shall thereupon pay the same Chap. 89. to the overseers. The justice's fee for such warrant shall be seventy cents, and the constable's fee for each person in the warrant shall be twenty cents, but the constable shall have no travelling fees or poundage, and the justice's fee shall be apportioned among the several persons, if more than one, in the warrant. 27. The justices in general or special sessions, as the Appellants to be case may be, may relieve appellants as they shall see fit, eess'ions.''^'^* and may order the overseers of the poor to refund any ex- cess of rates collected. 28. No person shall be assessed for the support of the Parties iiabie to poor unless in the opinion of the assessors he is able to pay * *=^^^^® • a rate of at least twenty cents annually. 29. If any person think himself over-rated he may ap- overrated per- peal to the next sessions or to the next special sessions to peai. be held for hearing such appeals, in the county or district wherein the assessment was made ; and the order of such court of appeal shall be final. 30. The overseers shall apply all sums of money voted o^SoSiis^^o^i and received by them for the purposes specified : and any lectors may bo sued Dv 0V6r~ collector who shall neglect to pay over to the overseers seer. any sum by him collected may be sued by them, and the amount shall be recovered as if it were a private debt. 31. The overseers of the poor shall within one month Accounts of after the expiration of their office render to the clerk of and how r'en- the peace of the county in which they reside, to be laid ^^'^^'^' before a general or special sessions, an account of all money received and the particulars of all expenditures by them for the support of the poor, and shall account for the same on oath, if required, before such sessions. In case there is no clerk and treasurer for the district, they shall enter their proceedings in a book to be kept for the pur- pose, and at the expiration of their office shall deliver the same, and any money in hand unexpended to their^suc- cessora. 32. The general or special sessions shall examine the ^udltthe^ac- accounts of overseers of the poor when so submitted, and odunta. shall allow or disallow the same as shall seem proper, and determine the just balance that may be due thereon. 33. Every person appointed an overseer of poor who farto^°semi'ai shall refuse to serve shall forfeit twenty dollars, to be re- overseer. covered by the overseers of poOr next in office for the same place. 34. Overseers of poor Who shall not within one month Fine for neg- _ after the expiration of their office render to the clerk of de°r a°ccount8*^a the peace an account of all sums of money received and r^'J""'^'^- expended by them, shall forfeit twenty dollars. Townships m»y 35. if the inhabitants of any township shall neglect to be amerced by T .1 • "^ , 1 Ti ■'^ T ■ . T the sessions m meet as required, of having met, shall neglect to make case of neglect adequate provision for the support of their poor, the suppOTt'of'poor! 45 \ 354 THE POOR. [part I. Chap. 89. jnetices iu session or any special sessions called for the pur- ~ pose, shall on the application of the overseers of poor for such township, amerce the same in a sum necessary for that purpose. Fine for coiiec- 30. Everv pcrson appointed a collector who shall refuse tors reiusiug to , -,i n /. • i • i , n n i j.i n j servo; appoint- to scrve shall lorieit eight dollars, and. another collector montof others. ^-^^^^^ ^^ forthwith appointed iu his place. SoumaDd'pay" 37. Evcry collector shall collect the whole rate as far over to over- as may bc practicable and shall account with and pay over three months, the Same to the overseers within three months from the time at which he shall receive the rate list, and upon neglect so to account and pay the same may be recovered by the overseers as a private debt. Fine for coiiec- 38. Evcry collcctor who shall neglect for thirty days dut^"^ '"^ '"^ after acceptance of office to perform the duty thereof, shall forfeit twenty dollars. Persons recciv- 39. When auy person shall apply for and obtain relief refund the fi'om the oversecrs, and it shall happen that such person amount if able, .^^g ^^ ^-^e time posscsscd of or entitled to any property, out of which the expenses so incurred may be repaid, the overseers may demand and recover from such person a repayment of the expenses so incurred, as if it were a pri- vate debt ; and any money recovered shall be accounted for by such overseers as other public money. Assessors not 40. Ko pcrsou being an assessor shall on that account Ifs^iment^ be exempt fi'om assessments; and any assessor who shall f°|t'o'^a"llss°'' neglect to assess himself in a just proportion, shall forfeit themselves. twenty dollars. Commissions to 41. The scssions shall establish the rate of commission collectors. to be allowcd to collectors of poor rates, but the same shall not exceed five per cent. how'^""u V ^^' '^^^ forfeitures under this chapter when recovered, '^^^^ ' shall be applied to the support of the poor of the town- ship. Clerk and trea- 43. The inhabitants at one of their meetings may, if surer may oe ^ *^ appointed; they scc fit, provldc a salary for an officer to be called given. ° " clerk and treasurer of the district, and thereupon may ap- point a person, not being an overseer, assessor or collector, to fill the office. He shall give a bond to the overseers by their name of office, with two sm-eties, in double the amount of the annual assessment, or thereaboi,its, con- ditioned for the faithful discharge of his duty, and shall be sworn into office. Duty of clerk. 44. The clcrk shall be under the direction of the town meeting while in session, and shall keep a correct record of its proceedings from time to time in a book to be fur- nished him for that purpose, which book shall be open for inspection to all rate payers at all reasonable times. He shall assist the assessors when required, in writing out and copying rate bills ; he shall assist the overseers in making up their accounts, and shall audit and check the same. TITLE XXill.] THE POOR. 355 45. The treasurer shall be under the direction of the Chap. 89, townsljip meeting while in session, and he shall be author- Duty of ux-.,- ised to give receipts and discharges to collectors for monies ^"''«''- paid by them to him, and he shall pay over monies so re- ceived upon orders addressed to him in that behalf by the overseers ; he shall file away for future reference all ac- counts, papers and vouchers relating to his office, and produce the same when required by the town meeting or the overseers, and shall generally discharge the duties of clerk and treasurer to the district ; he shall not receive or take any commissions or other remuneration except his salary, which shall not be required to be voted annually, but shall be continued until otherwise altered by a vote of the town meeting. 46. This chapter shall extend to the city of Halifax in ^}^^^J-1l ^pp'*j, all cases where its provisions are not inconsistent with Haufax. «iiei-e those in the act concerning the city, passed in the session ent wit™a''ct of of 1 8fi4 incorporation. 47. The meeting may appoint one and the same per- marbe^S; son to be clerk and treasurer if they see fit. aid treasurer. SCHEDULE. Form of general warrant of distress. County of \ To A. B., one of the constables of the said , / county. Whereas by a rate and assessment made in conformity with law the persons named in the schedule have been assessed for poor rates for a period ending tjie day of ; and whereas it appears to me, one of the justices of the peace for such county, upon the oath of CD., one of the collectors for the township of , that the several sums for which they have been assessed have been demanded from such persons respectively, and that the sums set opposite their names in the schedule hereto annexed remain unpaid. These are therefore to require you forthwith to make distress of the goods and chattels of the persons mentioned in the schedule ; and if within the space of five days next after such distress by you taken the sums in the schedule set opposite their re- spective names, together with their proportion of justice's and constable's fees, and the necessary charges of taking and keeping the distress be not paid by each of them respectively, that then you do sell the goods and chattels of such of them as shall not have paid such sums with fees as above mentioned ; and out of the monies arising from such sale you do forthwith pay over the sums so due by them respectively to the said C. D., the collector, together with the justiee's fmd constable'g f^eg, if any, by him paid ; 356 POOK DISTRICTS. [PART I. Chap. 90. and that you do render to the owners of the goods re- spectively upon demand the surplus remaining from such sale, the necessary charges of taking, keeping and selling the distress, being first deducted. And if no such distress can be made, that then you certify the same to me. Given under my hand and seal the day of , A. D. 18—. (Signed) E. F., J. P. (Seal.) OHAPTEK 90. OF POOK DISTRICTS, Poor districts 1. Poor districts as now established shall so continue confirmed. I'l ti t i i until altered by law. di'vkun'^'dfl/"'^ ^- -'-^ twenty or more of the ratepayers within any trict.; sessions towuship established for the support of poor shall, by Sirs fo? shew- petition, apply to the court of sessions, stating their desire ing cause. ^-^^^ ^^^^ towuship should be divided into two or more districts, and setting forth the proposed boundaries thereof, the court may, if they think fit, pass an order calling upon the parties interested to shew cause at the next sessions why such division should not be made. Orders to be 3. Copics of such ordcr, Setting forth particularly such posted. proposed boundaries, shall be posted up in at least five of the most public places within the township sought to be divided for at least thirty days next previous to the ensuing sessions. Orders may be 4. At such scssious the court may, if they think fit, tSwn^ships i'nto make an order dividing the township, either by the boun- nam"s!io!"*'' darics SO proposcd, or by such other boundaries as may be deemed proper, into as many districts as may be thought necessary for the future support of the poor within the same, with a name or designation to each. Sessions may 5. The scssious shall thcrcupon also ascertain the num- exp°e'nsYs and"' ^^^ ^^ paupcrs then chargcablc on the whole township tiie support of divided and the amount required for their support, and by preaen paupers ^^^^^ direct the proportion to be borne by each of such new districts ; and thereafter the expenses of paupers shall be chargeable on the district in which a settlement shall have been gained. Sessions may 6. The court of scssious may at any time alter or make sesl^nfsubse-"" ancw any order- in relation to the expenses of paupers, qu.nt orders, chargeable at the date of their first order on the whole township, thereby to effect a more equal distribution of such expenses rendered necessary by any increase or dimi- nution thereof. TITLE XXIII.] BASTARD CHILDREN. 357 7. All rates, assessments, suits or actions, pending at Chap. 91. the date of such first order, may be prosecuted, levied and E„tes pending collected, as if such division had not been made. at such division ' nor thereby in' validated. CHAPTER 91. OF THE MAINTENAKCE OF BASTARD CHILDREN. 1. If any woman shall become pregnant vrith a bastard i°f°™**ir° "^ T-iiT-/ij_i 1 11 T' 1 woman pregr child ukely to become chargeable to any township, she jjant with a shall make oath in writing before a justice for the county howtakenl a^d where she resides that she is so pregnant, and who is the ihlreon"""*" father of the child; and such justice shall forthwith issue his warrant to apprehend the reputed father and cause him" to be brought before him or some other justice of the county. : 2. The reputed father when brought before a justice, toXt'ef into"" shall be required to enter into a bond, with a surety, to aftgr'jiJ'J'birth indemnify such township until after the birth of the child * '"^ and until an order of filiation shall be made thereon, or till the reputed father be discharged on examination and hearing preparatory to the passing such order ; and in default shall be committed to jail to remain until such examination and hearing can be had or such bond given. 3. As soon as convenient after the -birth of the child, StTbtli an" two justices, on application of an overseer of the poor or ^o'Jf °'^"*" some substantial householder of such township, shall issue a warrant to bring the mother and reputed father before them at a time and place therein mentioned, and shall hear the evidence of the mother, the reputed father, and of any other person, and shall either discharge the re- puted father or make an order of filiation to indemnify the township for the expenses connected with the lying in and maintenance of the mother and the birth and main- tenance of the child to the date of the order, and that the reputed father pay such sum weekly as they shall consider right, respect being had to his ability towards the support of the bastard child while chargeable to such township. 4, If the person against whom any warrant shall issue where reputed under the provisions of this chapter shall not be found or is'^fn ano°her within the jurisdiction of the justice or justices issuing warrant may be the same, or if he shall be suspected to be in any place ^'^^°^^'^^ »'■«'■• within this province, a justice of the county or place where such person shall be or be suspected to be, upon proof made upon oath of the handwriting of the justice or jus- tices issuing the warrant, may make an endorsement as nearly as may be in the form hereto annexed, upon such 358 BASTAED CHILDEEN. [PART I. Chap. 91. warrant, signed with his name, and authorizing the execu- tion thereof as thereon endorsed, and the carrying of the person therein named, when apprehended before the jus- tice or justices who first issued the warrant, ^hii? 'gfre 'a^" ^- The reputed father shall then enter into a bond with bond to fulfil one surctj to fulfil the order of filiation, or shall pay to pay°eighty°doi- the overseers of the j)Oor eighty dollars for the support lixmonthf'"^ of cach such child or other town uses, and in default shall imprisonment, jjg forthwith Committed to jail for a time not to exceed six months or until he shall have entered into such bond or paid the eighty dollars. infOTmation 6. If thc mothcr of a bastard child shall not previously months after to its birth havc made oath in writing before a justice oe's**TOrranr*" disclosiug the reputed father, any justice may at anytime thereon. within three months after the birth, on application of an overseer of the poor of the township where the child has been or is likely to become chargeable, take the oath of the mother in wi'iting, declaring who is the father of such child, and thereupon two justices shall issue a warrant to bring the reputed father and the mother before them at a time and place therein named, and such proceedings shall be had thereon as directed in cases where the mother has disclosed the name of the father before the birth. When the re- 7_ jf ^nv rcputcd father shall conceal himself or so puted father .., ."p-*- cannot be .served avoicl service 01 a warrant that he cannot be brought beiore the order of fill- i-\ • >• ii • t _l t _£» i • i .ition may be the justiccs as therein directed lor hearing and examma- StnolT; pro- tioii, then they may make up their order of filiation in his ceedings there- absciice and issuc their warrant to bring him before them at a subsequent day and place therein mentioned, to shew cause why he should not obey the order and enter into a bond to indemnify the township from the charge of such child. suohordermay 8. At the time aud placc appointed the justices shall be subsequent- t^ f. ^ n'r* i -i ly confirmed or procced to coufiriu, revcrsc, modity or make a new order ceedings 'there- of filiation as may seem right, and thereupon the reputed °°- father shall immediately enter into a bond with one surety to perform the order so confirmed, modified or made anew, or shall pay eighty dollars for the support of the child or other town uses ; and in ,default shall be liable to the penalties and imprisonment before prescribed for non-per- formance of an order of filiation. Appeal from or- 9. If either party feel a2;s:rieved by an order of filiation or by the refusal to make such order, he may appeal to the next supreme court to be held in the county, except in Halifax where the appeal shall be to the next general sessions, where the whole matter may be heard and tried by a jury as a civil action, and the order of filiation con- firmed or quashed, and the decision of such court shall be final ; but before such appeal shall be granted the reputed father shall enter into a bond with one surety approved by the justices making the order, to perform the order of der of filiation TITLE XXIII.] BASTAKD CHILDREN. 359 filiation, if confirmed, and in such case to pay tlie costs Chap. 91. incurred by the overseers in consequence of the appeal. 10. Upon the examination and hearing preparatory to Power of justi- making an order of filiation, the justices may direct that thi expenses in the mother shall bear a part or the whole of the expense "e?of ^Xdon, of the maintenance of such child, either by nursing the furttJe^ordeis' child or as otherwise directed in the order of filiation, or make any other order in relation thereto. 11. The overseers for any township may sue in their 0^1'"^^^^=^ may own names upon any bond entered into under this chapter, their own whether made to them or their predecessors in office ; and orremovai'froDi such suit shall not abate by the death or removal from °i^te suoh'suu' office of such overseers of poor or any of them. 12. The following forms shall be used and adhered to Forms, as nearly as may be : — Examination of mother previous to birth of child. County of ss. The examination of A. B., of , in the county of taken on oath before me, who deposeth that she is with child which is likely to be born a bastard and to be chargeable to the township of , and that 0. T>., of - — — -, is the father of such child. A. B. Sworn before me, this day of , A. D., 18 — . E. F., J. P. Warrant to apprehend the reputed father before the birth. County of — ' — - ss. To any constables of the said county. Whereas A. B. of- , in the said county, hath by her examination in writing, taken upon oath before me this day, declared herself to be with child, which is likely to be born a bastard, and to be chargeable to the township of and that C. D. of is the father of such child, I do hereby command you to apprehend the said C. D. and bring him before me or some other justice for the said county, to find security to perform any order of filiation that may be made ; or in default thereof to com- mit him to jail, there to remain until an order of filiation shall be made. Witness my hand and seal this day of , A. D. 18—. B. F., J. P. (Seal.) Form of a commitment where a reputed father when brought up before birth of child refuses to enter into bond of indemnity, to be endorsed on the warrant. Whereas the within named C. D. now before me hath refused to enter into a sufficient bond to perform an order 360 BASTAKD CHILDREN. [PART I. Chap. 91. of filiation if made, I hereby order that he be committed to jail, there to remain until he shall have given such bond, or be brought up for further examination in the premises. "Witness my hand and seal, this day of , A. D., 18—. E. F., J. P. (seal.) Midorsement backing a warrant. County of . "Whereas proof upon oath has this day been made before me , a justice of the peace for the county of -, that the name of , to the within warrant subscribed, is the handwriting of the justice of the peace within men- tioned : I do therefore hereby authorize A. B., who bringeth me this warrant, and all other persons to whom the same was originally directed, or by whom it may be lawfully executed, and also all constables and other peace officers in this county to execute the same within this county, and to take the said C. D., if apprehended within this county, before the justice [or justices, as the case may 6e,] who issued such warrant, to be further dealt with according to law. Given under my hand, this day of , A. D. 18—. E. E., justice of the peace for '^— =-. Examination of mother after the birth of child. Cotinty of - — -^-^, ss. The examination of A. B., of =^, in the said county ^^ , taken upon oath before me, who deposeth that on the =-=-^— day of —, last past, at , she, the said A. B., was delivered of a [male or female^ bastard child, which is likely to become chargeable to the township of ■-, and that C. D. o{^ , is the father of such child. A. B. Swoi'ti to before me this ^^-^^ day of - - , A. D. 18-^; E; F., J. P. Bond 6/ indemnification, Know all men by these presents that we, C. D., o f' , in the county of , and G. H.y of — -, in the same bounty , are held and firmly bound unto the over- seers of the poor for the township of , in the said county, and their successors in office, in ■ dollars, to fee paid to the said ovetseers bf the poor or their feubcfessoi's in office ; for Which payment Well and truly to be made we bind ourselves and each of tls tjy himself, our and each of our heirs, executors and adtninistratots, firmly by these presents, sealed with our feealB; Bated this ^-^"^ day df :;=^^, A. D., 18—. TITLE XXIII.] BASTAKD CHILDREN. 361 Whereas A. B. of , hath declared on oath that she (^ifap. 91. is with child, which is likely to he born a bastard and to be chargeable to the township of , and the above bounden CD. is the father of such child. Now the condition of this obligation is such, that if the said C. D., his executors or administrators, do and shall perform any order of filiation that may be made upon him in the premises, then this obligation to be void. C. D. rseal. Signed, sealed and delivered, \ G. H. (seal, in presence of j J. K. Warrant to bring up mother and reputed father after birth of child. County of , ss. To any of the constables of the said county. "Whereas A. B. of , in the said county , hath by her examination in writing on oath, taken before us, declared that on the day of last past, she was delivered of a [niale or femaW] bastard child, in the town- ship of , and that CD. of , is the father of such child, and that such child is now living and charge- able to the township of , and the overseers of the poor of such township have applied to us to issue this warrant ; These are to command you that you bring the said A. B. and the said C D. respectively before us at the of , in the said county, on the day of , at the hour of , to be by us further examined, that we may make such order thereon as to right may appertain, and also that you do personally attend at the same time and place. Witness our hands and seals this • day of , A.D. 18—. E. F., J. P. (seal.) L. M., J. P. (seal.) Order of filiation. County of , ss. The order of E. F. and L. M., esquires, two justices for the said county, concerning a [male or female'] bastard child lately born in the township of , of A. B. Whereas upon the oath of the said A. B. it hath appeared unto us that on the day. of ^ last past, she was delivered of a [male or female] bastard child in the township of ", and that such child is now chargeable to the township of , and likely so to continue, and that C D. of -^— is the father of such child. And whereas the said C D. hath been brought before lis by our warrant [or ^'■hath refused to appear" as the case 46 362 BASTARD CHILDREN. [PART I. Chap. 91. may he] to answer the premises, but hath not shewn suffi- cient cause why he shall not be deemed to be the father of the child ; Wherefore upon an investigation of the matter as well upon the oath of the said A. B. as otherwise, we hereby adjudge the said C. D. to be the father of such child, and thereupon we order as well for the relief of the township of as for the sustenance of such child, that the said C. D. shall forthwith, upon notice to him given of this our order, pay to the overseers of the poor for the said town- ship the sum of towards the lying in of the said A. B. and the maintenance of ^uch child up to this date. And further that the said C. D. shall pay to the overseers of the poor of the said township for the time being the sum of weekly from the date hereof during so long time as the child shall remain chargeable to such township, towards the maintenance of such child. And we order that the said A. B. shall also pay to the overseers of the poor of the township the sum of weekly so long as the child shall be chargeable to the township in case she shall not herself take care of the child. Given under our hands and seals, this day of , A. D. 18 — . E. P., J. P. (seal.) L. M.,J. P. (seal.) Commitment to he endorsed upon the order of filiation. County of ss. Whereas C. D. within named, hath refused to comply with the within order or to give sufficient bonds to the overseers of the poor to inderimify the township of in the said county, in respect of the support of the child within referred to, we hereby- direct the high sheriff of the county or the jailer to receive the said C. I), and commit him to jail, there to remain in close confinement for the space of or until he shall have given such bond, or shall otherwise be removed according to law. Witness our hands and seals, this day of A. D. 18 — : E. P., J. P. (seal.) L. M., J. P. (seal.) Warrant to apprehend reputed father after order of filiation, IV here he shall have avoided service of previous loarrani. County of ss. To any of the constables of the said county : Whereas a warrant was issued by us to bring before us oti the day of— , A. B. of— , and C. D. of , which said A. B. appeared under the said warrant, but the said C. D. could not be found ; and on hearing.the evidence then adduced before us Ave did make an order of filiation in the absence of the said C. D., but he the said TITLE XXIII.] BASTARD CHILDREN. 363 C. D. has not complied therewith : these are therefore to Chap. 91. command you to bring the said C. D. hefore ns at the , on the day of , at o'clock, that he may he examined by us touching such order of filiation, and shew cause why he should not comply with such order, and enter into bonds for the performance thereof, and otherwise to be dealt with according to law. Given under our hands and seals this day of , A.D. 18 — . E. F., J. P. (seal.) L.M.,J. P. (seal.) The form of commitment the same as that under the order of filiation where the father shall have been present. Bond to abide and fulfil the order af filiation. Know all men by these pi-esents that we, C. D., of- in the county of , and G-. H., of , in the same county , are held and firmly bound unto the over- seers of the poor for the township of , in the said county, in dollars, to be paid to the said overseers of the poor and their successors in office or their certain attorney, executors, administrators and assigns, for which payment to be well and truly made we bind ourselves and each of us by himself, our and each of our heirs, execu- tors and administrators, firmly by these presents, sealed with our seals. Dated this day of , A. D. 18 — . "Whereas by an order of filiation made by and , esquires, two justices of the county aforesaid, in the matter of a bastard child, lately begotten on A. B., the said C. D. hath been adjudged to be the father of such child, and to obey such order of filiation. ISTow the con- dition of this obligation is such that if the said C. D., his executors or administrators, do well and truly obej''' such order of filiation, then this obligation shall become void. Signed, sealed and delivered "I CD. (senl.) in presence of f G. H. (seal.) J. K The like, where an appeal from such order shall have been made to the supreme court. Know all men by these presents that we, C. D., of , in the county of , and G. PL, of , in the same county , are held and firmly bound unto the over- seers of the poor for the township of , in the said county, in dollars, to be paid to the said overseers of the poor and their successors in office for the time being, of the said township of , or their certain attorney, executors, administrators and assigns, for which payment to be well and truly made we bind ourselves and each of us by himself, our and each of our heirs, executors and administrators, firmly by these presents, sealed with our seals. Dated this day pf . ,. : ■ . ■ . . , A. D. 18 — . 364 BIRDS AND ANIMALS. [PART I. Ohap. 9 2. "Whereas by an order of filiation duly made by and , esquires, justices of the peace for the county aforesaid, in the matter of a bastard child, lately begotten of A. B., the said C. D. hath been adjudged to be the father of such child, and to obey an order of filiation made in that behalf, from which order the said C. D. hath appealed to the supreme court [^or sessions at Halifax.'] 'Now the condition of this obligation is such, that in case such order shall be confirmed by the court, then if the said C. D., his executors or administrators, do pay all costs and charges which may be legally incurred by the over- seers of the poor for the said township, in consequence of such appeal, and also do obey such order so confirmed, then this obligation shall become void. Signed sealed and delivered \ C. D. fseal.^ in the presence of / G. H. (seal.) J. K. TITLE XXIV. OF CERTAIN BIRDS AOT) ANIMALS. OHAPTEK 92. OF THE PRESERVATION OF USEFUL BIRDS AND ANIMALS. and'woldOTcir -*-• '^^ person shall take or kill any partridge, snipe or not to be killed woodcock. Or shall Sell, buy, or have the same in his pos- Mare'hand^fiist scssiou between the first of March and the first of Septem- ofSep.ember. ^er iu any year. Fine for offence 2. Evcry offender shall forfeit two dollars for each ofi"ence. ritoo-restrio-' ^- '^'^ *^^® pcrson during any one year or season shall tionsastonum- kill morc than five moose or carriboo, nor shall any party of huntsmen or number of pei'sons together at any one to^be kTii^bl-^ hunt kill more than five moose or carriboo, nor shall any .jlmi^ry and°^ pcrson kuowingly kill any cow moose between the first ■ first 01 septem- day of January and the first day of September in any year, nT traps or ^^'^ "^ persou shall set traps or snares for catching moose snares allowed, or CaniboO. kXd*between 4. N"o pcrson shall take or kill any moose or carriboo nf^^aSd^first' ^etwcen the fifteenth day of February and the first day of September. September in any year, nor shall any person buy or have the same in his possession between the first day of March and the first day of September in anv year. Flesh to be car- r a _ i. i- i "l i i -n ried out of 5. Any person or party of huntsmen who may kill What umi,"''" moose or carriboo shall carry the flesh thereof out of the TITLE XXIV.] BIRDS AND ANIMALS, 365 woods -syithin three days after killing the animal during Chap. 92. the months of September and October, and witliin fourteen days thereafter during the months of Ifovember, Decem- ber, January and February. 6. Any person violating either of the three next pre- Penalty for tIo- ceding sections shall be liable to and on conviction shall otd'iSg°se'S:Jons pay a sum not to exceed twenty dollars and costs for each ofience, to be recovered in the name of any prosecutor in How recovered. a summary manner before two justices of the peace, and when recovered to be paid one half to the prosecutor and the other half to the county treasurer for the use of the county ; and m default of payment the offender shall be imprisDnment. ■ imprisoned in the county jail for a period not to exceed five days. 7. It shall not be lawful for any person to take or kill FH''^","',? '3,°' .' . , . . . "^ ■'• T 1, T to be killed, withm this province any pheasant, or to buy, sell or have sold, &o. in his possession any dead pheasant that has been so taken or killed. 8. Any dead pheasant found in the possession of any Presumption of person within this province shall be presumed to have ^"'"' been taken or killed by such person contrary to this chapter until proof to the contrary be given by such person. 9. No person shall take or kill the otter, the mink or otter, mink. &o the musquash, between the first day of May and the first i.mei^° day of November in any year, and no person shall take or kill any other animal only valuable for its fur between the fifteenth day of March and the fifteenth day of November in any year. 10. Every person oft'ending against the three next pre- S.tfon*of'^thr''e'.^' ceding sections shall for each such ofience forfeit a sum preceding see- not exceeding eight dollars ; to be recovered in the same manner in which similar amounts are now by law recover- ^°«'''®<=°^«^«<* able, and to be appropriated to the use of the prosecutor. 11. No person shall set any snare or trap for the destruc- maklOTde^Tor tion of moose : and the sessions may make orders for the pre.«ervation of n _ „ "^ , - • n ^eose, and ai- preservation ot moose and tor preventing the setting of fix penalties for snares or traps for catching them, and may affix penalties not to exceed twenty dollars for the breach of such orders respectively. 12. Any person may destroy any snare made or existing lestroTCd' ^^ in violation of such orders. 13. If the penalties incurred under the first and second ^'heJi'^flnTs™* sections be not paid with costs, the offender shall be com- not paid. mitted to jail, there to remain one day for every one dollar thereof or until the amount be paid. 14. Any person who shall keep a dog known to kill or ?ngdoi°known accustomed to worry sheep or lambs, after notice, shall pay '» i^'U sheep. two dollars to the owner for every sheep or lamb killed, and shall also forfeit four dollars for each off'ence. 366 NOXIOUS ANIMALS. {PART I. Chap. 93. 15. It shall not be lawful for any person to take any Oysters placed oysters frooi beds where they have been placed for propa- bedrstuibed '° S^^)^'^^> 01' ^^ injure or destroy them or wilfully obstruct their growth therein in any part of this province ; and Penait every person who shall so take, injure, destroy or obstruct the same, shall forfeit and pay for each offence two dollars, in addition to the sum of two dollai's for every bushel of oysters including the shells, so taken, injured or destroyed. KM°™y of 16. The penalty imposed under the preceding section may be recovered by any person who will sue for the same in the same manner as private debts of a similar amount are now recoverable, and shall be appropriated to the use of the prosecutor. luiatelawng'^^t ^'^ ' '^^® sessious may make regulations respecting the oysters; penal- taking of oystcrs iu any of the bays, creeks or rivers of this province, and may impose penalties for the breach of proTiso. such regulations — provided such penalties do not exceed four dollars for each oifence. Penalties ; how 18. The penalties imposed for breach of such regula- tions may be sued for as private debts of a similar nature by any person who may sue for the same, and when re- covered shall be appropriated to the use of the prosecutor. OHAPTEE 93. OF THE DESTEUCTION OF NOXIOUS ANIMALS. fppoin'i're™''^ 1. The sessions may establish rules and appoint rewards kig'^blarsSoup- ^^r eucouraging the killing of bears, loup-cerviers, wild cerviers, Hiid cats and wolvcs : and such rewards shall be a countv cats and wolves -, ^ charge. ^rMeedi'n'^Jfo ^" Evcry pcrsou killing a wolf within the province and obtaining pro- intending to claim a bounty therefor, shall produce the fo?Tiiiing°a^ head of the animal with the skin and ears entire, to a ''°'^' justice of the peace of the county where taken, and shall make oath of the fact in writing, stating the time and place where such wolf was taken, and shall submit to any further examination required by such justice ; but no bounty shall be allowed for any wolf taken out of the womb of the mother. Justice's duty 3. If the justice shall be satisfied of the truth of the h?so?rtifica\°e°' Statement, he shall cut off and burn the ears and scalp ot such wolf, and deliver to the person applying, a certificate of the facts annexing thereto the affidavit taken, and shall number the certificates issued by him each year and mark the number and year thereon. TITLE XXV.] COAST AND SEA FISHERIES. 867 4. Upon the certificate with the affidavit annexed being Chap. 94. transmitted to the office of the provincial secretary, a Bounty of twon- bounty of twenty dollars shall be paid out of the treasury fowed r/om'the to the party entitled. treasury. TITLE XXV. OF THE FISHERIES. CHAPTER 94. OF THE COAST AND DEEP SEA FISHERIES. 1. Officers of the colonial revenue, sheriffs, magistrates J'^"^^"^ ^Mrd and any other person duly commissioned for that purpose, vessels horer- may go on board any vessel or boat within any harbor in threonines of the province, or hovering within three marine miles of any *''® °°''^'- of the coasts or harbors thereof, and stay on board so long as she may remain within such place or distance. 2. If such vessel or boat be bound elsewhere and shall w^^ere^he mas- continue within such harbor or so hovering for twenty- ^®here"efusef " four hours after the master shall have been required to °° °°"<=e *° depart, any one of the officers above mentioned may bring such vessel or boat into port and search her cargo, and also examine the master upon oath touching the cargo and voyage ; and if the master or person in command shall not truly answer the questions demanded of him in such ex- amination he shall forfeit four hundred dollars; and if there be any prohibited goods on board, then such vessel or boat, and the cargo thereof, shall be forfeited. 3. If the vessel or boat shall be foreign and not navi- |'s°hi'nro7pre' gated according to the laws of Great Britain and Ireland, paring to fish, o , ' and. thfiir csir* and shall have been found fishing or preparing to fish, or goes, forfeited. to have been fishing within three marine miles of such coasts or harbors, such vessel or boat and the cargo shall be forfeited. 4. All goods, vessels and boats liable to forfeiture may ^o^ods'^ri-eited be seized and secured bv anv of such officers or persons RaMe to sei- 1 ~i ^ *^ . j_T zure ; penalty so commissioned ; and every person opposing tnem or any for obstructing 6ne aiding such opposition shall forfeit eight hundred "'S""'^- dollars. 5. Goods, vessels and boats, seized as liable to for- seTs'arid°go"da feiture under this chapter shall be forthwith delivered into seized. the custody of the officers of the colonial revenue next to the place where seized, to be secured and kept as other vessels, boats and goods seized, are directed to be secured and kept by law; 368 Chap. 94. Condemned vessels and goods, how dis- posed of, and the proceeds, how applied. COAST AND SEA FISHERIES. [part I. Penalties and forfeitures, how prosecuted. Vessels and goods to be re* delivered on security. Suits, how ' brought and prosecuted ; oral evidence admissible as authority of sei- zing officers. Burden of proof in canes ol sei- zure to rest with claimant. Claims of pr o- perty seized to be under oath. Security to be given before claim entered. Month's notice to officer before Action. 6. All goods, vessels and boats condemned as forfeited under this chapter shall, by direction of the principal officer of the colonial revenue where the seizure shall have been secured, be sold at public auction, and the proceeds of such sale shall be applied as follows : the amount chargeable for the custody of the property seized shall first be deducted and paid over for that service, one-half of the remainder shall be paid to the officer or person seizing the same without deduction, and the other half, after first deducti^ig therefrom all costs incurred, shall be paid into the treasury of the province ; but the board of revenue may nevertheless direct that any vessel, boat or goods, seized and forfeited, shall be destroyed or reserved for the public service. 7. All penalties or forfeitures hereunder shall be prose- cuted and recovered in the court of vice admiralty. 8. If any goods, vessel or boat shall be seized as for- feited under this chapter, the judge of the vice admiralty with the consent of the persons seizing the same may order re-delivery thereof, on security by bond to be made by the party with two sureties to the use of her majesty. In case the property shall be condemned, the value thereof shall be paid into the court and distributed as above directed. 9. All suits for the recovery of penalties or forfeitures shall be in the name of her majesty, and shall be prose- cuted by the advocate general, or in case of his absence by the solicitor general. If a dispute arise whether any person is authorized to seize under this chapter, oral evidence may be heard thereupon. 10. If any seizure take place under this chapter and a dispute arise, the proof touching the illegality thereof shall be upon the owner or claimant. 11. ISTo claim to anything seized under this chapter and returned into the coui't of vice admiralty for adjudication, shall be admitted unless the claim be entered under oath, with the name of the owner, his residence and occupation, and the description of the property claimed ; which oath shall be made by the owner, his attorney or agent, and to the best of his knowledge and belief. 12. Ho person shall enter a claim to anything seized under this chapter until security shall have been given in a penalty not exceeding two hundred and forty dollars to answer and pay costs occasioned by such claim ; and in default of such security the things seized shall be adjudged forfeited and shall be condemned. 13. No writ shall be sued out against any officer or other person authorized to seize under this chapter for any- thing done thereunder until one month after notice in writing, delivered to him or left at his usual place of abode by the person intending to sue out such writ, his attorney TITLE XXV.] COAST AND SEA FISHERIES. 369 or agent ; in wHcli notice shall be contained the canse of Chap. 94. action, the name and place of abode of the person who is to bring the action, and of his attorney or agent ; and no evidence of any cause of action shall be produced except such as shall be contained in such notice. 14. Every such action shall be brought within three Limitation of months after the cause thereof has ariseia. , seizing^fmolrs. 15. If on any information or suit brought to trial under oertiflcate of this chapter on account of any seizure, judgment shall be of°Fe1zureThlii given for the claimant, and the judge or court shall certify covl^'ofoostt. on the record that there was probable cause of seizure, the claimant shall not recover costs, nor shall the person who made the seizure be liable to any indictment or suit on account thereof. And if any suit or prosecution be brought against any person on account of such seizure, and judgment shall be given against him, and the judge or court shall certify that there was probable cause for the seizure, then the plaintiff, besides the thing seized or its value, shall not recover more than three and a half cents damages nor any costs' of suit, nor shall the defendant be fined more than twenty cents. 16. The seizing; officer mav within one month after Amendsmaybo ,. J. ,. .1/1 1 i _lt j tendered withm notice ot action received, tender amends to the party com- one month, plaining or his attorney or agent, and plead such tender. 17. All actions for the recovery of penalties or for- Limitation of ^ feitures imposed by this chapter must be commenced auies°&c°'^ ^"^ within three years after the offence committed. 18. 1^0 appeal shall be prosecuted from any decree or Appeals, within sentence of any court in this province, touching any penalty pro'feo™ld*.° ^^ or forfeiture imposed hereby, unless the inhibition be applied for and decreed within twelve months from the decree or sentence being pronounced. 19. All coasting vessels under sixty tons burthen owned coasting tbS' in this province and engaged in the coasting trade thereof, ntrrow pllce of shall be furnished with a narrow piece of plank or iron cxtendingaftof affixed to the bottom of the keel and level therewith, ''^^ ^'^™ p°^*- extending aft at least six inches beyond the aperture be- tween the stern post and rudder, and well secured on the keel. But this section shall not extend to vessels in which the main or false keel extends six inches beyond the aper- ture between the stern post and rudder. 20. Any owner or master of a coasting vessel not so Forfeiture for furnished or built, running foul of any net set off the wifere^colsters harbors, bays and rivers of the coast, shall upon due proof Yiled!'^"^"^"' thereof forfeit twenty dollars, to be recovered by the party injured to his own use as a private debt; leaving to the party aggrieved, nevertheless, his rights at common law for any further damage. 21. In this chapter "vessels" shall include ships; and f/^^g"'""^ °^ " harbors" shall include ports, bays and creeks. 47 mo COAST AND SEA FISHfiRlJIS. [part I. CiiAP. 94. 22. The first eighteen sections are suspended as regards e.ispension of citizeus Eiid inhabitants of the United States of America, seetiJ'nf.''*''''" ''"^tl shall contiriue so suspended and not in force so long as the treaty between her majesty and that country, signed on the fifth day of June, 1854, shall continue and be in force. Agreement to 23. The master of any vessel registered and belongina: be entered into ,. . -, t " t f iii -,1° between master to this provuicc, aud bouud irom any port therein, to be and crew. employed in the deep sea fishery, shall before proceeding on such fishing voyage enter into an agreement m writing with every person on board, apprentices excepted, which agreement shall express whether the same is to continue for one voyage or for the fishing season ; and shall also express that the fish or the proceeds of such fishing voyage or voyages which may appertain to the crew of such vessel, shall be divided amoug them in proportion to the quantity or number offish which they may respectively have caught ; which agreement in addition to the signatures of the mas- ter and crew shall be countersigned by the owner of such fishing vessel, or his agent, and shall be as nearly as possible in the form given in the annexed schedule. 24. Any person having engaged for a voyage or for the fishing season, as before provided, who shall while the agreement therefor continues in force, desert or absent himself from the vessel in which he shipped, without leave of the master, shall be liable to the same penalties and for- feitures imposed on the like offences under chapter seventy- five ; and every master of a fishing vessel taking any person on a deep sea voyage without entering into the before required agreement, shall be liable to the penalty imposed on that oiFence by the same chapter. Terms of agreement. Penalties for desertion. Form of agree' ment. Schedule in this chapter referred to. An agreement made in pursuance of chapter ninety- four of an act of the general assembly of Nova Scotia, passed in the twenty-seventh year of the reign of her majesty queen Victoria, entitled "an act for revising and consolidating the general statutes of ITova Scotia," between , master of the ship , of the port of , of the burthen of tons, and the several persons whose names are subscribed hereto. It is agreed by and on the part of the said persons, and they severally hereby engage to serve on board said ship in the capacities set opposite their respective names, on a fishing voyage from the port to ; \_here the intended voyage is to be described, and the duration of the same, and the nature of the same as nearly as can be done, and if the same is to contiyiue for the fishing season,'] and back to the port of ; and the said crew agree to conduct themselves in an orderly, faithful, honest, careful and sober manner, and to be at all times diligent in their respective duties and sta- tions, and to be obedient to the lawful commands of the TITLE XXV.] RIVER FISHERIES. 371 master in every thing relating to the said ship, and the Chap. 95. materials, stores and" cargo thereof; in consideration of which services to be duly, honestly, faithfully and care- fully performed, the said master doth hereby promise and agree with the said crew ; [here insert the particular agree- ment iviih reference to the division of the fish among the shares- men at end of voyage.'] In witness whereof the said parties have hereto subscribed their names on the days their respective signatures mentioned. agamst Place and time of entry. Men's name.' Age. Place of birth. Quality. Am'nt of shares. Sureties. AVitness Day. Month. Year. tion. CHAPTER 95. OF RIVER FISHERIES. 1. Hereafter no salmon shall be taken in any of the rivers of this province westward of the harbor of Halifax between the thirty-first day of July and the first day of March ; nor in any river running into the Bay of Fuudy, nor in any river in the Lsland of Cape Breton, nor in any riverto theeastward of Halifaxharbor, between thefifteenth day of August and the first day of March, except in salt water below low water mark, and in salt water not later than the twentieth of October. Any person taking any salmon in any of the rivers of this province within the times specified shall be liable to a penalty not exceeding forty dollars for every salmon taken by him. 2. The sessions shall annually appoint such and so many places on the rivers and streams as may be attended with the least inconvenience to the owners of the soil, or the rivers, as resorts for the purpose of taking fish ; but the same and the enactments herein contained shall not extend to any species of fish taken from the sea except salmon, bass, shad, alewives, gaspereaux, trout and small mackerel. 3. In cases where a river shall be the dividing line between two counties the orders and regulations of the sessions in each county shall have force and effect only to Time for taking s.ilmon. Penalty. Fisheries on rivers running through privato lands to be regulated by sessions. Sessions' orders to extend to centre of rhan- uel of river dividing coun- ties. 372 KIVER nSHEKIES. [PART I. Chap. 95. the centre of the channel of the river being such dividing line. maliiTAersfor 4. The scssions shall from time to time make orders erecSn"°'^of '"'''' ^'^^ ^^^ Setting and drifting of nets, the erecting and placing of«ea?s, &c. of wears, and generally for the conducting of fisheries in all the hays, harbors, rivers, streams or creeks, or on the Penalties. shores thereof, to be enforced by penalties not exceeding forty dollars for the breach of any such order. .Si'mred'' "°' ^- ^° ^^S "6ts shall be used for the purpose of taking salmon within any river or harbor, nor within a mile from Time when nets the mouth of any river, and no nets shall be set or placed .shall notbe set. ^j, allowed to remain set or placed from one hour before sunset on Saturday night until an ^lour after sunrise on Monday morning, svreepini fJi- ^- ^^ pcrsou shall by spearing or sweeping with net or bidden. seiuc take or attempt to take any salmon in any river, ,. , ^ , stream, lake or water course ; and nets for the taking of 1 6ts now P6t salmon or any other fish shall be set and placed only on one side of such river, stream, lake or watercourse. STone e^|iiTh*of '''■ ^^ stakc, scino, Avear, net or other contrivance for a ^"^ /™™ . taking fish, shall be set or placed within one-eighth of a mile within one from whcre some other stake, seine, wear, net or other from mmr&21'° coutrivancc for taking fish is previously set or placed, nor within one-eighth of a mile next below or above any mill or dam erected across or partially across any such river, Not to extend stream or watercourse ; and no seine, net, or other contri- more than one • „ niin t i i • t o third across vancc lor takmg fish shall extend more than one-third oi the distance in a straight line across such river, stream or watercourse. hftl?n*onLr°" ^- ■^'^y person who shall violate any provision of the three sections, last three scctlons shall forfeit a sum not exceeding forty trial of offen- dollars ; and all spears, implements, canoes, boats, nets, ders; appeal, geines, wcars and other contrivances used or employed in, about or preparatory to the taking of salmon or any other fish contrary to the preceding sections, or to any order of sessions made or to be made thereunder, shall be liable to forfeiture, and may be seized by any person and detained until the trial of the ofli'ender, when they may be declared forfeited and become the property of the person prose- cuting; if, however, upon appeal from the judgment of the justices the owner or possessor of the articles so declared forfeited shall give sufficient security by bond with sureties to pay the prosecutor the value thereof and the amount of any penalty that may have been imposed with the costs then incurred and thereafter to be incurred in case the judgment appealed from shall be confirmed, then such owner or possessor shall be entitled to their immediate restoration, ^f mo ''^e'L- ^' ^'^y person finding a net, seine or wear set or placed Btroyed, Contrary to the provisions of this chapter or of such order of sessions may d.estroy the same — provided nevertheless TITLE XXV.] RIVER FISHERIES. 373 that no person 'shall be allowed in any action, indictment Chap. 95. or other proceeding against him to justify the destruction of or injury to any net, seine or wear, under the authority of this section, unless such person shall within one week after he shall have done any such act post up in a con- spicuous place in the neighbourhood, and also file in the office of a neighbouring justice of the peace, a notice signed by him, acknowledging the act and stating the time and place of doing the same, and also the address, addition and place of residence of the party subscribing the same. 10. Every person discovered at night with a spear and Persons . equip- to rch or a torch only in or about any river, stream, lake or For Ashing to bo watercourse above the rise and fall of the tide, either in a thricrof "^ boat or canoe or otherwise, and apparently equipped for S'^'^'^s- taking or spearing salmon, shall be considered in the act of spearing salmon, and the burthen of disproving the same shall be on the party so discovered. 11. The owner or the occupier of any mill to which J^"keep°ip«i" any dam, lock or obstruction made or to be made on or ^"=t« s^te, ic. across any river, resorted to by salmon or gaspereaux, is appurtenant, who shall not during such periods while the fish are passing up from and returning to the sea, as shall be prescribed by the regulations of sessions, or in case there are no regulations on the subject as shall be fixed by the river inspector, when no such regulation shall be made by the sessions or river inspector, then within the period prescribed in the first section of this chapter, have and keep open a waste gate or slope sufficient to allow P'="»"y- such fish to pass and repass, shall be liable to a penalty not exceeding forty dollars. 12. When such owner or occupier having a sufficient Penalty for waste gate or slope shall keep the same shut or otherwise '^ °^'°s passage impede the passage of such fish during such periods, he shall be liable to a penalty not exceeding forty dollars for every time he shall close the said passage. 13. When such owner shall have had ten days notice Penalty for re- in writing from the river inspector or any justice of the itrictgates.i'c. peace of the want or insufficiency of such waste gate or slope, and shall have for that space of time neglected or refused to construct such waste gate or slope, he shall be liable to a penalty of one hundred dollars, and if he shall upon continued neglect or refuse to construct such waste gate or slope for dlm^ma'^'bo ten days after such penalty shall have been inflicted the destroyed. justices inflicting such penalty or any judge of the supreme court may upon sufficient proof of such neglect or refusal order the sheriff of the county to prostrate and wholly destroy the said milldam, and the expenses attendant upon such application and of the removal of the said dam shall be taxed by the said justices or by a judge, who may direct an execution to issue therefor against the said owner. 374 RIVEE FISHERIES. [PART I. Chap. 95. 14. The sessions of each county shall at the first meet- sessions may ing after the passing of this chapter by a memorandum in rWerTexempt- '^'ritirig) declare specifically the rivers and streams within the county to which the provisions of this chapter shall . not apply. poinuSspectL 15. The grand jury in each county shall present and the sessions shall appoint in the same manner as county and township ofiicei's are appointed, for each river or part of a river which the sessions shall make into a separate district or jurisdiction, an officer to be called inspector of river Salary. fisheries, to be paid such salary as the grand jury and To be sworn, scssious may allow, who shall be sworn into office as other township officers are sworn, and who shall be liable and ' "' bound to protect the fisheries and carry out the provisions of this chapter on the river or stream for which he is BO appointed. Penalty for neg- 16. Any rivcr inspcctor neglecting to be sworn into Bworn? ° ^ office on receiving notice of his appointment shall be liable to a penalty of ten dollars ; and any such river inspector For neglect of neglecting his duty after being sworn into office shall be "'''■ liable to a penalty of forty dollars. stop gates to be 17. J'or the protection of the youne: fish cominar down ■ the rivers of the province in the fall of the year, sufficient stop gates shall be made in all dams and obstructions across the rivers sufficient for such young fish to pass through. ifor°^en"w?s- 1^" "^^^ prosccutions for penalties under this chapter howhad, Ac. ' shall be had either before two justices of the peace or before a judge of the supreme court as a summary suit, and any person may prosecute for any violation of this chapter or of any order of sessions made thereunder, and the penalties when recovered shall go to the prosecutor. Process to state 19. Where proccediuffs are before two iustices the following lorm or summons may be used, but any process which shall substantially state the violation complained of shall be sufficient. Form of summons. To any of the constables complaint. Summons. Tou are hereby commanded to summon A. B. of - in the county of , to appear before us at the day of next, to answer to the suit of C. D. who says that the said A. B. hath violated the provisions of the acts made for the protection of the river fisheries in not providing a sufficient waste gate or slope in his mill- dam, or in not keeping the waste gate of his milldam open, or in allowing the waste gate or slope of his milldam to be so obstructed as to prevent the free passage of fish in un- lawfully setting nets, wears or seines, or in spearing salmon. "Witness our hands this day of , A. D. 18 — . E. F. (seal.) G. H. (seal.) TMLB XXVl.] ENCOtlftAGEMENT OF AGRlCtrLTUBB. STg The conviction may be in the following form :— " The Chap. 96. within named A. B. having been duly summoned under conviction — ' the annexed writ, and having been duly convicted of hav- ing violated the chapter of the revised statutes "of river fisheries," as therein mentioned, we here^by give judgment for the plaintifi for the sum of - ^ ■- with his costs. E. F. (seal.) G. H. (seal.) TITLE XXVI. CHAPTER 96. OF THE ENCOUKAQBMENT OF AGRICULTURE. 1. The governor in council shall appoint a central central Board board of agriculture, consisting of sixteen persons, of how^appSint^dl whom the superintendent of education and principal of the normal |chool shall be members ex officio, the re- mainder shall be selected: four from the city and county of Halifax, and two from each of the five rural districts mentioned in schedule B. Seven of such board shall be a quorum, and they shall be a corporate body under the name of the board of agriculture. 2. The first meeting of the board shall be held at such First meeting; time and place as the governor in council shall direct, ^itction'ofoffi- when they shall elect a president, vice president, secretary cera. and treasurer. 3. There shall be held in each year two general meet- '^JLtP'^^^'i niT 1 !• 1 -• fii'1 meetings, when mgs ot the board, one during tne sitting oi the legislature ^eid. in the month of March and the other in the month of October, of which meetings at least ten days notice shall be given. Special meetings may be called by the secretary at the instance of the president or upon the written request of three members. 4. One of the members from each of such rural dis- Retirement of tricts and two from district number one shall annually """"^ ^"' retire and cease to be members of the board, unless re-elected as herein provided ; but members liable to retire may continue to exercise their functions until their suc- cessors shall have been duly appointed. 5. At the general meeting in October, 1865, the board how deter- shall determine by ballot the member in each of the ™°^ " several rural districts, and also the two members from district number one, who shall first retire ; and in each succeeding year they shall go out by rotation. 376 ENCOURAGEMENT OF AGRICULTURE. [PART I. Chap. 96. 6. The several agricultural societies in eacli of the five rural districts shall at their general meetings in December nominate one person to be a member of the board in place of the retiring member for the district. The secretary of the society shall forthwith transmit the name of the person so nominated by the greatest number of societies in the district, and' the person so nominated shall be a member of the board in place of the retiring member. Vacancies, how The vacaucics in district number one shall be filled up by the societies therein nominating one member as in other districts, and the governor in council shall fill up the other. 7. In case of an equality of votes for any number of the persons so nominated the board shall determine by ballot who of the number shall be the member. 8. Vacancies happening at any time through death, resignation or otherwise, may be filled up by the governor in council. 9. The board shall not pay or allow any sum to a mem- ber thereof for acting as such member except the amount of his actual and necessary expenses in attending its regular meetings. 10. It shall be the duty of the board — I. To take measures for the formation' of county or district societies and for infusing new vigor and efficiency into those already in existence. 11. To receive the accounts and reports of such socie- ties, and before granting the certificates hereinafter men- tioned to entitle them to participate in the provincial grant, to see that they have complied with the provisions of this chapter. III. To publish a quarterly or semi-annual journal for the diffusion of agricultural and horticultural information adapted to the condition and circumstances of the country, and to cause the same to be distributed as generally as possible. IV. To take measures to obtain from other countries animals of new or improved breeds, new varieties of grains, seeds, vegetables, plants or other agricultural productions for general and equitable distribution throughout the several counties, and to adopt every measure in their power generally to promote improvement in the agricul- ture and horticulture of the province. V. To hold every third year or oftener, should the board deem it advisable, in some central and suitable locality, a general provincial exhibition of agricultural and horticultural products, animals and domestic manufactures, and to fix the time, articles of competition, and list of prizes to be awarded, and the regulations tinder which such exhibitions shall be held, of which due notice shall be given at least twelve months before the same shall take Agricultural societies to nominate a member of board in place of retiring member. filled. Where votes equal board (o elect by ballot. Vacancies by death, and how filled. Members to be paid actual ex- penses only. Duties of board To form county societies. To receive re- ports. To publish and distribute jour- nals. To obtain new stock, grain, Ac, for distri- bution. To hold a gen- eral provincial exhibition at least every third yeari TITLE XXVI.] ENCOURAGEMENT OF AGRICULTURE. 377 place and in holding the same, due regard shall be had to Chap. 96. the just claims of the several counties. 11. The board may at any time appoint a person to in- Board to ap- spect the books and accounts of any society in the province S? '"oo'^tFes'.''*" receiving government aid in connection with agriculture, and all officers of every such society whenever required so to do shall submit its books and accounts to such inspec- tion and truly to the best of their knowledge answer all questions put to them in relation thereto, or to the funds of the society. 12. For the purposes of this act the board shall be en- fo°drfwTertain titled to draw from the provincial treasury annually such fum of money; sum not exceeding two thousand dollars, as the governor tf^iMf'aSd and council may authorize, out of which they may expend ^™°"°t8- a sum not exceeding four hundred dollars for the salaries of their officers, and a further sum not exceeding fifty dol- lars for stationery and other incidental expenses, and they shall exhibit to the government for the information of the legislature every year an account of the expenditure of the same with proper vouchers, and a full report of their pro- ceedings. 13. Agricultural societies mav be organized in each of Agricultural o •/ o sociptiss' now the counties wherever forty persons or more shall become organized. members ^thereof by signing a declaration in the form of schedule A to this chapter, and paying each aot less than subscription. one dollar annually to the funds thereof, and a true copy of the said declaration shall within one month after the money has been so paid be transmitted to the secretary of the central board. 14. When any society shall be so organized such society whenso organ- shall be entitled to draw annually from the treasury by draw^from^re*^ warrant in favor of its president and on the certificate of ImJuliTo'f the^? the secretary of the central board, double the amount of subscriptions. the subscriptions so raised and paid ; the payment of such subscription to be certified by the secretary of the society. Not to exceed but no county society sball be entitled to draw more than peranmra. two hundred dollars in any one year. 15. In counties where more than one agricultural society Government ai- exists the government allowance shall be given on the apportioned. principle in section fourteen, not exceeding for any county the sum of two hundred and forty dollars in any one year, and the same shall be apportioned among such societies by the central board in a rateable proportion to the amount of the subscriptions raised and paid by each society for the year in which such allowance shall be claimed; no county to have more than four societies. 16. In case of any difficulties arising as to the bounda- Boundaries; ries of any such societies the central board shall define the game. 17. The object of such agricultural societies shall be to ^^fu^^VsOTfe-' encourage and promote the introduction of improved stock, ties. 48 878 ENCOURAGEMENT OF AGRICULTTIKE. [part Chap. 96. Annual meet- ings of socie- ties ; when held. Election of offi- Cera. First officers to conti«ue until successors ap- pointed. Special meet- ings. May alter bye- laws, &c. Annual report when pre- sented. Forfeiture for neglect. County societies to hold annual show. seeds, fruit, roots, implements, methods of culture, drainage, orchard cultivation, and improvement in farm buildings and domestic manufactures, to hold shows and exhibitions, to award premiums for excellence, and to diffuse informa- tion concerning agriculture and horticulture ; the funds of such societies, derived from the subscriptions of members or the public grant, shall. not be expended for any object inconsistent with those above mentioned. 18. The annual meetings of the societies shall be held ou the first Tuesday of December in each year, when they shall elect a president, vice president, secretary and trea- surer, and not more than five directors, and they shall also at the same time nominate four persons to be members of the central board as required by section six. 19. The officers appointed at the formation of such societies shall until the election of their successors at the annual meeting exercise all the powers vested in the society by this chapter. 20. They shall hold special meetings pursuant to ad- journment or on written notice from the secretary, which shall be given one week before tjie day appointed for such meeting, and at any such meeting five shall be a quorum. 21. The said of&cers and directors may at any such meeting make, alter and repeal bye-laws and rules for the management of such society, copies of which shall within one month thereafter be forwarded to the secretary of the central board for its approval. 22. The said officers and directors shall in addition to the oi'dinary duties of management, present at the annual meeting in December a report of the proceedings of the society during the year, in which shall be stated the names of all the members of the society, the amount paid by each, the names of all persons to whom premiums were awarded, with the name of the animal, article or thing in respect of which the same was granted, together with such remarks upon the agriculture of the county as they may be enabted to offer, and a statement of the receipts and disbursements of the society during the year, which report and statement if approved by the meeting shall be entei-ed in the journal of the society, and a true copy thereof certified by the, pre- sident and secretary to be correct shall be sent to the central board within one month thereafter. 23. If any society shall neglect to render such accounts and report it shall forfeit its claims to the provincial grant for the year next succeeding. 24. The county society where but one exists in a county, and the several societies where more than one is establish- ed therein, shall be requested to hold an annual show for the exhibition of agricultural and horticultural produce, farm stock, and articles of domestic manufacture, at which prizes shall be granted for the best specimens produced or TITLE XXVI.] ENCOURAGEMENT OF AGRICULTURE". 379 farm culture, and such shows shall be' held at such time Chap. 96. and place and under such, regulations as the majority of — — the officers and directors of the several county societies may determine. 25. If the officers and directors of the agricultural other system society of any county or part of a county consider that iTpiaoe'*or°'^ any other system might advantageously he substituted for *^^°*^' that of shows, and that the sura allotted to such society might be better applied in the importanon of stock or to any other purpose for the improvement of agriculture, in such case they may so apply the said sum, provided notice thereof has been given to the board of agriculture and its approval of such appropriation obtained. 26. The provisions of this chapter shall extend to all Application of agricultural societies at present in existence. "^ ^^ ^^' SCHEDULES. A. "We, whose names are hereunto subscribed, agree to form ourselves into a society under the provisions of the chapter of the revised statutes, " of the encouragement of agriculture," to be named the agricultural society in the county of ; and we severally agree to pay to the treasurer of said society towards the funds thereof annually the sums set opposite our respective names. Names of subseribers. A. B. CD. Sums subscribed. B. The city and county of Halifax shall comprise district number one. District number two shall include the counties of Kings, Annapolis and Digby. District number three shall include the counties of Lunenburg, Queens, Shelburne and Yarmouth. District number four shall include the counties of Hants, Colchester and Cumberland. District number five shall include the counties of Pic- tou, Antigonish and Quysborough. District number six shall include the counties of Cape Breton, Richmond, Inv^fiie^s an^ Victoria. 380 ' trustees of public property. [part i. Chap. 97 . TITLE XXVIL OF CERTAIN MUNTCIPAL REGULATION'S. OHAPTEE 97. OF TRUSTEES OF PUBLIC PEOPBRTY. Trustees of pub- 1. The grand jurj iu each county or district shall re- pointerby'^ses- commend SIX pcrsons resident therein, out of whom the bl°ke"t? teus-'° sessions shall appoint three to he trustees of puhlic pro- tees a body perty ; and the sessions upon the recommendation of the corpora e. grand jury may remove them or any of them, and vacancies shall be supplied by the grand jury recommending double the number of persons necessary to supply the same, out of whom the sessions shall appoint the number required. The clerk of the peace shall keep a record of such appoint- ments, removals and vacancies, and the dates thereof. Such trustees shall be a body corpoi-ate by the name of " the trustees of public property for the county [^or districn of ." Lands and pro- 2. All lauds grstntcd, couvevcd, reserved or dedicated, perty vested in i ■ i it i p , , trustees. or which may have been procured, or tor twenty years before the passing of this chapter shall have been used for public purposes in the county or district, whether for the site of any court house, jail or lock-tip house, .or for the public purposes of the county or district generally, with the buildings and appurtenances thereon or thereto belong- ing, and all lands and buildings hereafter procured or given for the public purposes of the county or district generally, shall vest in such trustees on their appointment for the public uses for which the same may have been originally intended. fea"ed *ubjMt ^- -^^^ ^'^^^ lands and buildings shall be leased and to control of managed by the trustees under and subject to the control sessions. /. ,i • of the sessions. Leases limited 4_ j^q leasc shall be made hereunder for a lonarer period to seven years. o i than seven years. S'adl'"'^' ^"'^ ^- ^^^ trustees may make bye-laws for the better regu- lation of such lands and buildings and affix penalties for breach thereof; but no bye-law shall be in force until approved by the sessions and filed with the clerk of the peace. Accounts of 6. The trustees shall annually render their accounts in re'idlred a°nnu- Writing to the scssious to be by them audited, and when ■"'"''■ approved they shall be filed by the clerk of the peace. Penalties and 7. Penalties incurred under the bye-laws and rents due covered."'^ '^°' to the trustees, may be recovered by them in like manner TITLE XXVII.] PUBLIC MARKETS. 381 as if they were private debts due tliem ; and the trustees Chap. 98. shall pay into the county treasury all monies that they may receive hereunder. 8. The expenses of the trustees in the execution of the J^ul't^rto fom trust, shall when approved by the sessions form a county county oiiargo. charge. 9. Nothing herein contained shall affect any place of Lands and pro- divine worship, burial ground, college, academy, school or from ^eTpm^a* any land thereto belonging, or any land belonging to any chrpter""^ religious congregation or society, or any lands vested in the supervisors of public grounds under the chapter of revised statutes " of supervisors of public grounds," or shall deprive any person of any right lawfully acquired ; nor shall anything herein contained afiect any lands or buildings now vested in trustees, or the necessary control of the sheriff over the court house and jail. 10. The sessions in each county shall have power to Trustees of appoint trustees of school lands in any township or district .appofutment of. in this province where none are now appointee^ 11. Whenever any vacancy shall occur by death or vacancies, how removal from the county, incompetency, or refusal to act " ' ' of any trustees already appointed to take charge of any school lands in any township or district in this province, the sessions may appoint trustees to fill such vacancy who shall have the same power as the original trustees. filled. CHAPTER 98. OF PUBLIC MARKETS. 1. Public markets where now by law established are Existing pubuo confirmed, and upon the recommendation of the grand frrmedfses"ionB jury, the sessions may establish new public markets, and ^h^r®/'"''"'''^ may procure and fit up a market house as directed in chapter forty-five, " of county assessments." 2. The sessions may direct the days of the week and sessions to hours on which public markets shall be held, and may mrke"by*iaw"; appoint keepers of the market who shall also act as clerks contrirthe"'' thereof, and shall be sworn into ofiice and have the powers mariiets. of constables so far as regards keeping order in the market, and shall be removable by the sessions. The sessions shall also establish the pay of such keepers and clerks, and fix the rates of stalls or standings in the markets, and make bye-laws for the regulation of markets and impose penal- ties for breaches thereof, not exceeding two dollars for every offence. The keepers and clerks shall bring actions for such penalties in their own names, and shall be com- petent witnesses to prove the offence. 382 FIRES AND FIEEWARDS. [PART I. Chap. 99. 3. , The rent of the stalls and standings in the markets, Rents and pen- together with the whole amount of the penalties recovered appifel''"'' under the preceding section, shall be applied under the direction of the sessions to the repairs of the market house. Accounts ifc be 4. The keepers and clcrks shall annually Tcuder their rendered annu- , . -,.,,■, . ,11^1 t, i ally accounts in writing to the sessions, to be by them audited, and when approved they shall be filed by the clerk of the peace. CHAPTER 99. OF FIRES AND FIEEWARDS. r'^oTnte'd'-'to^ 1. 'The sessions shall annually appoint such numbers of be sworn 'and the inhabitants of any town as may be deemed necessary badge^of offie*^. to bc firewErds, who shall be sworn to the faithful dis- charge of their duties, and shall have a suitable stafl: assigned them as a badge of ofiice. and'taMsTe"^ 2. The extent of any towns for the purpose of this fined! ""^^ ^ chapter shall be confined to the limits within which the commissioners of streets have jurisdiction, but may be altered by the sessions ; and the sessions may also divide the towns into different wards, and may appoint such limits where there are no commissioners of streets. diucTand*"' 3. Upon the breaking out of a fire, the firewards, powers at fires, taking their badges with them, shall forthwith repair to the spot and use their utmost endeavours to extinguish and prevent the spreading of the fire, and to preserve and secure the property of the inhabitants, and may command, the assistance of the inhabitants therein, and in removing property out of any building actually on fire or in danger thereof, and to appoint guards to secure and take care of the same, and may command assistance for the pulling down of buildings or'for other services relating thereto to prevent the further spreading of the fire, and to suppress tumults and disorders, and due obedience shall be yielded unto them for those services, and generally at such fires ; obedience'^of"" and for any disobedience of their orders information their orders, thereof shall within ten days next thereafter be given to a justice of the peace, and the offender shall be Uable to a penalty not exceeding eight dollars. i>g open "build" 4. IsTo person shall at a fire break open any building or ings without attempt to pull the same down, or order others so to^do, proper au ori. ^^^jggg Qi.(jers thercfor shall have been first given by the owner of the building, or as previously provided, and any person violating this provision shall for every offence forfeit a sum not e?:ceeding twenty dollars, TITLE XXVII.] FIRES AND FIEEWARDS. 383 5. The firewards shall from time to time report to the Chap. 99. sessions what number of ladders, hooks, buckets, bags, Duty of firo- chains, ropes, axes and saws are required for service at ^''^l fil-rim fires, and the probable expense thereof and of keeping piements. the same in repair ; and the sessions shall order such of them to be provided as they may deem necessary ; but every fireward shall be at all times provided with two ladders with hooks, one of which ladders shall be at least twenty -four feet in length, and the other at least sixteen feet in length, one fire hook, two axes, one saw, twelve leather buckets, and twelve large bags, which shall be by the firewards deposited in the most convenient places in each district, and where, on the alarm of fire, the inhabi- tants of the district shall assemble and proceed under the direction of the firewards, with such of the implements as may be deemed necessary, to the place of danger. 6. The district of which each fireward shall have charge pistriee? and shall be numbered, and the implements in the last section b™numberld° mentioned shall be marked with the number of the district ^Xty'onmple- to which they belong, and within twenty-four hours after '"«'>''■ the extinguishing of any fire the different implements shall be delivered at their plaoe of deposit; and if there- after any of such implements shall be found in the posses- sion of any person he shall forfeit a sum not exceeding eight dollars ; and any person who shall use such imple- ments except at a fire or on an alarm thereof shall forfeit a like suni. 7. The sessions may appoint such number of firemen Firemen, how for each town as they may deem necessary, who shall thefr duties, under the firewards have the charge of the fire implements hereinbefore mentioned, and shall be obliged to keep them in good order and fit for service ; and upon an alarm of fire they shall at once repair to the place of deposit of such implements and bring the same to the place where the fire shall have been discovered, and shall then diligently use the same under the direction of the firewards, in such way as may be deemed most useful for extinguishing the fire. 8. One of such firemen to be appointed by the fire- Fireman ap- wards shall have the power of a fireward in commanding wards to^ha^e" assistance in taking the fire-implements to or from any fire, ^™|' °' ^"' and a like penalty shall attach for disobedience of his orders as of those of a fireward. 9. The sessions may appoint so many fire constables as pre constables, .1 T J rr ,.•'.„ 1-,. how appointed ; they may deem necessary, not exceedmg six for each dis- their duties. triet, who shall be sworn into office, and shall at the time of fires, with suitable staves to be provided them, attend upon the firewards, and act under their directions in sub- duing the fire, keeping order and preventing thefts ; and if any constable so appointed shall neglect to be sworn penalty for into office within a reasonable time after being notified of °^8'°°'- his appointment, or having been sworn in, shall neglect his duty, he shall forfeit a sum not exceeding eight dollars. 384 FIEBS AND FIREWARDS. [PART I. Chap. 99. 10. The general sessions for any county may hereafter General ses- assoss upon & district to bc by them defined such sum of liss'fo^'fire*^' money as they shall think necessary, to be applied in pro- engines, curing a fire engine with hose, tire buckets and other necessary appurtenances for such district, and also such sums as may be required from time to time for keeping the same in repair ; and such monies shall be assessed, levied and Property liable collected.' Such monics shall be assessed upon houses and assessors. ' buildiugs and every description of insurable personal pro- perty within such district, by assessors to be appointed by such general sessions, at such times and in such proportions as such general sessions shall direct. Collectors ; pay. 11. Such asscssors shall appoint one or more collectors ratoced."" who shall collect such monies, and such monies shall be collected and payment thereof enforced in the same manner as county rates are collected and their payment enforced. oo°untTreasu ^^' Such coUcctors shall pay ovcr the mouics by them rer ; action collectcd to the couuty trcasurcr ; and the county treasurer against co eo- j^^y maintain an action for money had and received against any of such collectors who shall not pay over the monies by him collected, ne'flctof dSty ^^' -^^^ collcctor or asscssor who shall neglect to per- recoveryof.. ' form the dutics of his office shall forfeit a sum not exceed- ing forty dollars, to be recovered in the name of any person who will sue therefor, in the same manner and with the like costs as if it were a private debt due such person. Enginemen, ^'^- ^^^ sessious may from time to time appoint such how appointed; number of cngincmen as may be deemed necessary, who shall take charge of the fire engines and shall keep the same in good order and fit for service, and upon an alarm of fire they shall repair with their engines to the place where the fire shall have been discovered and work the same under the direction of the firewards. ^^i^wb'^'fira" ^^' One of the enginemen, to be appointed by the fire- wards^ to hare wards, shall have the power of a fireward to command any wa7d.' °^ ^^^' necessary assistance in taking the engines to and from fires, and any person refusing to obey his orders therein shall be liable to the same fine as hereinbefore imposed for disobey- ing a fireward. Firemen and 16. Firemen and enginemen shall be exempted from enFpted™from'' the performance of statute labor, except in respect of duUe3° ^"''''° cattle and teams, and from serving on juries or in the office of constable ; and these exemptions shall extend to persons who shall have actually served as firemen or enginemen for a period of sixteen years, and shall have obtained a certificate of such sei-vice from the captain or lieutenant of the company, countersigned by the secretary. Vacancies, how i 17. Upon any vacancy among the firemen or engine suppie . jnen the same shall be at once reported by the captain to the sessions, that the vacancy may be supplied. Chimney 18. The fircwards may nominate and license chimney sweepers, how t • r. "^ in • ■, -l appointed. Bwcepers, and it any person shall act in that capacity TITLE XXVII.] FIRES AND FIREWARDS. 385 without being so licensed, he may on a summary convic- Oiiap. 99. tion thereof before a justice of the peace be imprisoned for a period not exceeding one month. 19. Licensed chimney sweepers shall enter into bonds sw^^mto with two sureties, to be approved by the firewards, for g'Ts bonds. performing their duties during the term for which they may be appointed, and for conforming to the regulations of the firewards in reference to the sweeping of chimneys ; and in case of nesrlect or refusal to perform their duties PetiaUyiorneg- 1 ' T ^ 1. 1 ino/»'n lect 01 duty. or to comply with such regulations they shall forfeit for every offence not less than one nor more than four dollars, and if the penalty shall not be paid within ten days after conviction, and no personal property whereon to levy can be found, the offender may be imprisoned for a period not exceeding ten dajs, or the bond may be put in suit for the payment of the penalty and costs. 20. The firewards may make regulations respecting ^cTo/Tegull- the times and mode of sweeping chimneys ; and if a fire s^elpfnrof'"*^ shall happen in any building or chimney so as to create chimneya. alarm or to endanger the neighboring buildings, and the occupants of the building where the fire occurs cannot make it appear that their chimneys have been swept according to such regulations by a licensed sweeper, they shall forfeit two dollars, to be recovered in the name of any fireward ; and any fireward who shall be aware of the offence and shall not prosecute for the penalty within five days thereafter, shall forfeit twenty dollars. 21. Anv two firewards mav demand admittance into Power of Are- any building wherein they have reason to believe there is buiidmgs and any dangerous chimney, stove, stove-pipe or funnel, and if relplotTn^^Xn- in their opinion the same shall be dangerous they shall gi™"^ <=ii™- order them to be altered or removed in such manner as they shall direct, and if their directions shall not be com- plied with the firewards shall cause such removal or alte- ration to be made at the expense of the occupants of the building ; and if any person shall refuse admittance to the f^fsln'^fdmis'*' firewards while acting under this section, or shall not make sion. the removal or alteration by them directed, he shall forfeit a sum not exceeding eight dollars, to be recovered together with the expenses of removal or alteration in the name of the firewards or any of them, and in default of payment the offender may be imprisoned for a period not exceeding ten days. 22. If any two firewards shall consider it proper to ^°^|dingerou» inspect the placing or situation of any combustible mate- materi rials, they may demand admittance into any building or place for that purpose, and if they shall deem the same dangerous they shall direct the occupant of the building or place to remove such materials or alter the placing thereof, and if he shall neglect to obey them they may make the removal or alteration at his expense ; and if any 386 FIRES AND FIKEWARDS. [PART I. Chap. 99. person shall refuse admission to the firewards while acting Penalties in- Under this 8ection,.or shall not carry out their orders, he cuned, how shall forfeit eight dollars in addition to the expense of enforced. . i^t • ojif ixi i carrying out the direction oi the lirewaras, to be recovered in the name of the firewards or of anj' of them ; and if the penalty and expenses shall not be paid with costs, the offender may be imprisoned for a period not exceeding ten days. speotfn™gu'ii- 23. ]S"o person shall keep at any one time in any one powder. place withiu the limits of the firewards, or in any vessel or boat for more than twelve hours after she has reached any wharf within such limits, more than twenty-five pounds of tifelr ento??e- gunpowdcr ; and if any person shall violate the provisions ™^°'' hereof he shall forfeit one dollar for every pound of such gunpowder over twenty-five pounds, to be recovered in the name of the firewards or any of them-; but this pro- vision shall not extend to any vessel or boat belonging to her majesty wherein gunpowder may be kept for public purposes ; and all prosecutions hereunder shall be com- menced within three months after the offence shall be committed. m'd^iacei''^'"' ^^- -^^y justice of the peace upon complaint on oath broiten open to by a fircwai'd that he has reasonable cause to suspect that search for dan- j"" ,..• r? j l x • i gerous quanti- dangd'ous quautitics 01 gunpowder are kept in any place dlr °pro"oeed^' couti'ary to the provisions of the last section, may issue his ings thereunder warrant to scarch therefor in the day time; and if admit- tance under the warrant shall be refused, and such refusal shall be made appear on oath, the justice may grant a further warrant to break open the place where such gun- powder is supposed to be deposited; and if upon any search a greater quantity than twenty-five pounds of gun- powder shall be found, the fireward may seize and sell such excess at public auction, and the proceeds shall be applied for the purposes of this chapter. maTe°reg*?ia- ^5. The scssious may make regulations to prevent the t™'^ '■eiative to occuiTcnce, increase or spreading of fires, and to prevent the unnecessary ringing of fire bells, or the destruction thereof or of their appurtenances, and shall have the man- agement and control of the engine men and firemen, and may increase or diminish their numbers ; and shall have general powers for the due carrying out of the provisions of this chapter, and may affix penalties for breach of any such regulations, not exceeding eight dollars. in"^ u"wic''"''" ^^- ^^ ^"y person shall wilfully destroj' or injure any wells, &c. public well or pump or fire plug, or any engine or fire im- plements within the limits to which this chapter extends, he shall forfeit twenty dollars ; and in default of payment, and no effects being found whereon to levy, may be impri- , soned for not more than ten days. firewa'rfs"i?ow 27. The firewards shall annually appoint a chairman floerduties°ic' w^o shall act as treasurer of the board, and shall submit TITLE XXVII.] FIRKARMS AND FIREWORKS. 387 his accounts annually to the firewards to be audited and Chap. 100, signed by them, and submitted to the sessions for examina- tion and approval. 28. All penalties recovered hereunder shall be applied "^PPJ^j^fj,""" °^ under the direction of the sessions towards the purchasing and keeping in repair of engines and fire implements and the sinking and keeping in repair of pumps and wells, and generally in carrying out the objects of this chapter ; and Fireionic- the sessions may at any time direct new engines and fire JI!ovid-d°"nd implements to be procured for any town herein mentioned "•epaued. which may be within their jurisdiction, and new wells to be sunk and pumps placed therein ; and the expenses Expenses, how thereof and of keeping them or those already in use in ilcted.™ '^°' repair, and all such further sums as may be requisite for the purposes of this chapter, shall be assessed, levied and collected within the limits of the town where the expenses shall be incurred, in the same manner as poor rates are assessed, levied and collected, and shall be paid over to the county treasurer to be applied under the direction of the sessions for the purposes contemplated. 29. Whenever any building or property shall be injured f™es''t'^'^3"i|n°" or destroyed by fire and the cause or origin thereof shall ns to the origin not be known, the mayor of the city of Hulifax within the °^ ^''^^' city of Halifax, and the custos or any two justices of the peace in other parts of the province, shall cause an inves- tigation to be made to ascertain the cause or origin of the fire, and the same shall take place before the mayor or two or more aldermen in the city of Halifax, or before two or more justices in other places, who shall have power to enforce the attendance of such persons to give evidence before them as they may require by summons or warrant under their hands and seals, and to examine them under oath ; and the proceedings and all depositions connected therewith shall be returned to the pi'othonotary of the supreme court of the county where the fire has taken place and be filed by him in his ofiice. 30. The word "firewards" when used in this chapter Definition of shall include one or more of them, unless otherwise ex- *''™^' pressed or repugnant to the context. . CHAPTER 100, OF THE DISCHARGE OF FIREARMS AND FIREWORKS. 1. If any person shall knowingly and unnecessarily Fine for u^; discharge any firearms within the city of Halifax, or within eita^ge^'of n\i- ^n^ tQ-yvn or village, Qr witliin pne hundred yardg of any *™-'' 388 TRANSPORTATION OF GUNPOWDER. [PART I. Chap, 101. person riding or driving, he shall for every offence forfeit two dollars on summary conviction before a justice of the peace, and in default of payment shall be imprisoned for twenty-four hours. p^rfy'^thrmdng 2. If any pcrson shall wantonly throw any fireworks, ferta?n''piac"es''" '^^ permit the same to be thrown, into any street, thorough- or improperly fare or passagc, or into any building, or shall make any fires!°® ™" bonfire within one hundred yards of any building, he shall for every offence forfeit eight dollars, and in default of payment shall be imprisoned for a period not exceeding fourteen days. brwItM^'eight 3. Prosecutious Under this chapter must be commenced days, within eight days after the offence committed. CHAPTER 101. OF THE TRANSPORTATION OF GUNPOWDER. Conveyance of 1. *'Eo persou shall couvey by land more than one ton faliT""*^^"^ ^ of gunpowder at one time. Protection 2. Morc than fifty pounds of gunpowder shall not be than'^fifty Jbl! in placed in any one cart to be land-borne unless the same one cart. shall bc Completely covered with wollen or hair cloth, exclusive of the package and the covering of the carriage. sto"'%"ithin° ^' "^*^ Carriage conveying gunpowder shall be stopped twentyrod?of a Icss than twButy Tods from any dwelling-house. dwelling irou.e. ^^ ^^ -^ g^^^^ ^^ metalHc substancc, other than Metallic sub- ^ ', ., tut t -i • '. stances not to coppcr hoops ou the casks, shall be placed on any carnage, clrf iTcTen wuh together with any quantity of gunpowder exceeding fifty powder. pounds. fiftv°p'nndr^'^ ^- -^'^ gunpowder exceeding fifty pounds shall be weight how placed iu any carriage, but in barrels, half barrels or carriage. °^ quarter barrels, tight and well hooped with wood or copper hoops. Quantities over Q, J^o morc than tweuty-fivc pounds of gunpowder pounds, how shall be carried from one place to another unless the ca?riagl^°' package be well hooped and sufliciently wrapped with woolen or hair cloth. offenie"'^'^'' ^°^ '^ ' ^^ ^^^ persou shall offend against the preceding provisions of this chapter he shall forfeit for every offence a sum not exceeding eighty dollars. Carriage of gun- 8. Nothing in this chapter contained shall' affect the powder for her . ^ ^ tot . . •majesty's ser- carriage 01 guupowder tor her majesty s service. Itftcw.'" ^^ 9. Every person who shall blast rocks with gunpowder Precautions to in any placo within one hundred feet from any street, bfas'ung within Mghway or thoroughfarc, shall use the most careful pre- Rn"etiee't?4o, cautiOHS lu giving Dotice tU^^eof by blowing horns or TITLE XXVII.] WOODS AND MARSHES. — RIVERS. 389 otherwise, previously to each explosion, and shall limit the Chap. 102. quantity of powder to be used, which must not in any case exceed eight ounces in any bore, nor explode more than three bores in any one blasting, and shall cover the spot about to be blasted with a sufficient quantity of bushes, timber, earth, stones or other materials, to deaden the force of the explosion. 10. Every proprietor, contractor, builder, workman or Fine, how re- laborer concerned in any such blasting shall, in case of ''°™''^°- any neglect of the provisions in the foregoing section, be liable to a fine of not less than two dollars and not more than twenty dollars, to be recovered on the prosecution of any person sueing for the same, if in the city of Halifax in the police court, if elsewhere before any one justice of the peace, with costs, and in case of non-payment shall be liable to imprisonment for a term not exceeding one -1/. j3 ^^ ^ T n i *" Person blasting day tor every dollar or such fine ; and every person con- to be responsf- cerned in so blasting rocks without proper precaution tie for damages shall be responsible in damages to any person who may be injured thereby. OHAPTEE 102. OP BURNING WOODS AND MARSHES. 1. The sessions shall make regulations for preventing sessions to damage by setting fire to and burning woods, underbrush uo^ns^ fo? bum- and marsh lands, at unseasonable times, and shall affix mfrshTs^io. penalties for breach thereof not exceeding twenty dollars. 2. Prosecutions under this chapter must be commenced ^^^^eeiiums"^ within three months after the offence committed. 3. If any person convicted under this chapter shall not imprisonment pay the penalty and costs, and shall have no goods whereon fo° ^rant^o'? " a levy can be made, he may be imprisoned for a term not ^°°'^^' exceeding one day for every one dollar of the amount of the judgment unless the same shall be sooner paid. OHAPTEE 103. OF THE CONVEYING OP TIMBER AND LUMBER ON RIVERS AND THE REMOVAL OP OBSTRUCTIONS THEREFROM. 1. Upon the written application of twenty freeholders commissioners resident in the locality of any river or owning lands thereon, fheVjSds'dfo'!' or interested in rafting and driving logs, timber md lumber, ^1°°^'^°'^ '*®' 390 KiVERS. [part I, Chap. 103. or conveying wood or other articles down such river, setting forth their desire that commissioners should be appointed for clearing and removing obstructions from such river, which application shall be first read at the sessions and approved of by the grand jury and sessions who shall in such cases establish the points in the river between which the powers of the commissioners shall be limited, the clerk of the peace shall return such application into the provincial secretary's ofiice with a certificate of such appro- val and the limits so established, and thereupon the gover- nor in council may appoint three or four commissioners for the purposes of the five succeeding sections of this chapter. Powers of com- 2. The commissioncrs or overseers of the river fisheries missioners of . . • j. i l xl river fisheries, or commissiouers appointed by the sessions may remove from the river all obstructions within the limits of their authority, and may erect wing-dams at such places and in such manner as they shall see fit, and do all other acts necessary to facilitate the passage of logs, timber, lumber, wood and other articles down the river, and for that pur- pose may enter upon public or private lands, doing no unnecessary damage ; and the commissioners or such over- seers may make regulations to prevent obstruction to rivers by the throwing or falling into them of slabs and mnkl°rLuia^ othcr rcfusc wood and sawdust from saw mills ; and the tions regarding sessious may impose penalties for the violation of such mills being regulations and may direct the method of recovering the thrown into oa^n rivers, &c. Same. Commissioners 3. The Commissioners may borrow upon their own Xney."'"' Credit or upon the credit of the tolls arising as hereinafter mentioned, such sums of money not exceeding four thou- sand dollars in the whole, as may be necessary for the purposes of their appointment. Tolls to be 4. "When the undertaking is completed the commis- their appiica siouei'S may collcct a toll of such amount, and in such *'™' manner and under such regulations for enforcing payment thereof as the sessions may from time to time direct, upon logs, timber, lumber, wood and other articles brought down the river within their jurisdiction, and shall apply the tolls to the payment of the amount borrowed with interest, but no toll shall be levied after the amount is liquidated. Accounts to be 5. The commissiouers shall annually submit an account nuany**and™u- of their expenditure and proceedings, and of the tolls col- tiilfonl ** lected, to the sessions for audit, and when approved it shall be filed by the clerk of the peace. Operation of 6. Nothing herein contained shall be construed to ^t'ri9ted. '^ sanctiou any claim on the provincial revenue in respect of the monies so borrowed, or to authorize any interference with the navigation or fisheries of the river further than piaj^ be absolvitelj' necessarjy for the purposes cootempl^^tedj TITLE XXVII.J PUBLIC EXHIBITIONS. 391 or to injure or affect private rights further than as ex- Chap. 104. pressly provided. 7. The sesgioDs shall when found uecessary make regu- sessions em- lations respecting the bringing down of logs, timber and maVo' reguia- lumber on rivers, and the seasons of the year at which the *'°°'' same shall be brought down and the removal of obstruc- tions thereto ; and also as to the placing and upholding of booms with the consent of the owners of the soil on either side of the river, and the times of continuing such booms, and for preventing the booms from obstructing the navi- gation of the river, and may fix the rates of boomage that shall be paid to the owners of the booms on articles secured thereby, and the manner in which such boomage shall be collected and applied, whether for the repair of the booms or the use of the owners thereof; and also as to the taking (3f articles from one boom to another ; and may appoint persons to take charge of the booms and collect such monies as may be due under such regulations, and may impose penalties for breach of such regulations of not less than one dollar nor more than eight dollars ; but nothing herein contained shall authorize the removal of any mill- dam. 8. Persons may bring logs, timber and lumber down Logs, timber rivers, in reference to which such regulations have been maybebro^ugw made ; provided they shall in all respects conform to the unde/re|Sa- regulations and do as little damage as possible to the t'°"i»- owners of the soil adjoining. 9 The word "river" when used in this chapter shall Definition of , T . • • i • the word river. include streams running into any river. CHAPTER 104. OF PUBLIC EXHIBITIONS. 1. The clerk of the licenses with the consent of two License for justices of the peace shall grant a license to any person fiJnsfhow'ob- applying, for holding any show, play or public exhibition, taine'd. upon such person paying a sum not exceeding five dollars nor less than one dollar per day, at the discretion of the officer granting the license ; the money to be paid for such license before the granting thereof, and to be paid for every day for which the license is granted, to be therein ex- pressed, which license shall not be operative out of the county where granted. ^^^^ ^^ 2. If the clerk of the licenses shall be absent or shall ceedtng where reside more than five miles from the place where it shall aifsent°orTiT?ng be intended to hold the exhibition, two justices may grant taTdiitancel 392 STRAY HORSES AND CATTLE. [part I. Chap. 105. Fees on graut- ing license. Fine for exhibi- tion witliout license, and how recovered. Clerk of licensep, duty of in relation to fines collected. City of Halifax exempted from this chapter. such license under and subject to the payments, restrictions and regulations in the first section mentioned ; and they shall within thirty days after granting the license make return thereof to the clerk of the licenses, and at the same time pay over the amount of duties received therefor. 3. The clerk of the licenses or justices granting any such license shall be entitled to receive therefor a fee of fifty cents. 4. If any person shall hold any show, play, or public exhibition without previously obtaining a license he shall forfeit twenty dollars for every day the same shall be held, to be recovered in a summary manner before two justices of the peace, and to be by them within thirty days after receipt paid over to the clerk of the licenses. 5. The clerk of the licenses shall within ten days before every sittings of the sessions pay over to the county trea- surer for county purposes all duties and penalties by him received under this chapter. 6. The provisions of this chapter shall not extend to the city of Halifax. OHAPTEE 105. OF STRAY HORSES AND CATTLE. Stray horses, cattle, &c., how to be dealt with, 'Town clerk's duty and fees. Proceedinprs where no claim- ant appears 1. Whenever between the first day of iN'ovember and the first day of May any horses or cattle or any swine or sheep shall stray into the yard, barn or enclosure of any person, or be astray and on the premises of any person to whom the owner thereof is unknown, such person may detain the same ; and if not claimed within twenty-four hours he shall forthwith thereafter transmit to the town clerk of the township, or if the place be not within any township, then to the town clerk of the adjoining town- ship, a description of every such animal, with the color, size, ear-mark if any, age, and particular marks thereof, so as the owner may be enabled to recognize it by the description ; and shall at the foot thereof write a notice of the time and place of finding such animal, and also the place where the same is detained. 2. The town clerk shall file the description and notice, and post up a copy thereof in his office and in three or more public places in the township for at least ten days after he has received the same, for which services he shall be entitled to a fee of twenty cents for every animal. 3. If no person shall claim the animals within ten days after such notice posted up, the finder may apply to a TITLE XXVII.] iNI'ECTEi) CATTt^. 39^ justice of the peace, who upon proof of the tiotice having Chap. 106. been duly posted shall by order under his .hand direct any ' constable to sell the animals ; and the constables shall forthwith sell the same, having first given notice by adver- tisements posted in three of the most public places within the township or settlement for at least six days. No sale shall however tg,k:e place between the thirtieth of April and the first of December ; but in case there shall not be sufficient time after the receipt of the order to advertise the sale for some day before the first day of May, the constable shall not proceed to sell until after the thirty- first of October. 4. After deducting from the proceeds of sale five per Application of cent for the constable for his services in advertising and sai°6".^^ selling, and the reasonable expenses of keeping the ani- mals, together with the town clerk's fee, the balance shall be paid to the overseers of the poor for the place where the animals were found, to be applied to the use of the poor thereof unless claimed by the owner of the animals within twelve months after sale, in which case it shall be paid to the owner. 5. If the owner shall claim his property before sale he Pees payable shall be bound to pay the finder his reasonable expenses Sai'merbefore of keeping, and also the town clerk's fee, and if advertised =^®- the reasonable expense thereof. 6. If any question shall arise between the owner or Dispute as to overseers of the poor and the finder either respecting elpe^nfeifhow ownership or expenses of keeping, either of the parties settled. may apply to two justices of the peace, who shall deter- mine the matter and make such order therein as may appear just. 7. If any person who may have detained any such Fines for de- stray animal shall not within a reasonable time transmit and'nlt°pr^ the description and notice to the town clerk as herein- tws'^ehlptlr'" before directed, he shall forfeit for every horse or head of directed, cattle not more than eight dollars, and for every hog or sheep not more than four dollars. OHAPTEE 106. OF THE GOINO AT LARGE OE INFECTED CATTLE, DOGS, SWINE, VICIOUS ANIMALS AND GEESE. 1. The sessions shall make regulations for preventing sessions shaii the going at large of infected horses and cattle and the S^ns^respecting spreading of distempers among them, and also as to the gfrs^erdogt'io. going at large of dogs, swine and of vicious animals and of geese, and shall affix penalties for breach of any such 50 894 SEA MANURE. — COASTING ON HIOHWATS. [PAET I. Chap. 108. regulations, whicli penalties shall not exceed as respects horses and cattle twenty dollars, and as respects dogs, swine and geese four dollars. 2. If judgment be given for any such penalty and the defendant shall not pay the same, and shall not have goods whereon the^ same may be levied, he may be imprisoned for a period not exceeding one day for evefy one dollar of the penalty. Imprisonment for want of goods to pay CHAPTER 107. or THE GATHERING OF SEA MANURE. Sessions may make regula- tions respect- ing sea manure. Private rights not affected. 1. The sessions may make regulations with regard to the collecting and talking away of sea manure which may be driven by the sea and lodged upon the shores and beaches ; and if any person shall transgress such regula- tions he shall for every offence forfeit a sum not exceeding eight dollars. 2. iffothing in this chapter contained shall extend to take away or abridge any private rights or interests on any of such shores or beaches. CHAPTER 108. OF COASTING ON HIGHWAYS, ROADS OVER THE ICE AND GUIDE BOARDS. Sessions may make regula- tions respect- ing coasting. Parents and masters re- sponsible for penalties. Sessions may make regula- tions respect- ing tracks and roads over the ice. 1. The sessions may make regulations for preventing persons from coasting, skating or sliding on the snow or ice down the hills on highways or streets ; and impose a penalty not exceeding one dollar for breach of such regu- lations. 2. The parents of minors and the masters of appren- tices who shall trangress any such regulation shall be liable to the penalty therefor. 3. The sessions may make regulations for ascertaining the safest track for roads over the ice on harbors, rivers, creeks, lakes or bogs, and for putting down or continuing bushes or other marks for defining the course of such roads, and to prevent the removal or destruction of such bushes or other marks ; and may affix a penalty for breach of any such regulations not exceeding four dollars for each offence, which shallbe applied one half to the person sue- ing, and the other half for county purposes. TITLE XXVII.] TAXATION OP DOGS. 395 4. The expenses incurred in putting down, continuing, Chap. 109, repairing and protecting such marks, shall form a county Expenses, how charge. p=»id- 5. Whenever the general sessions or a special sessions Guide boards, called for the purpose, shall by order direct that guide boards shall be erected on any public roads within their respective counties, and shall specify on what roads and branching and crossing thereof such guide boards shall be erected, the surveyors of highways and road commis- sioners shall thereupon erect or set up, and afterwards keep and maintain all such guide boards within their respective districts. ^ 6. Every such guide board shall have an arm corres- GiWotoaidto ponding to each road at the branchmg or crossing whereoi f".":. ^"""^ ^"f''' it is erected, on which arm the name and distance of the ^ '^^™'">' place to which such road leads shall be painted on a white ground in black letters and figures at least two inches in size, 7. Surveyors of highways and road commissioners may Maintenance, appropriate so much of the statute labor or of the statute *'°^' provided. labor fund of their district as shall be sufficient to erect and maintain thereon the guide boards required by this chapter. 8. Surveyors of highways or road commissioners neg- ^orb^survl^- lecting to erect and maintain within their district the guide ois of highways boards required by this chapter shall pay a fine not ex- ceeding ten dollars, to be appropriated one half to the road fund and one half to the prosecutor. CHAPTER 109. OF THE TAXATION OF DOGS. 1. The sessions upon the recommendation of the grand mXeTgX-'' iurv mav make resralations relative to the taxation of «ons relative J"^ J J ,. Rt i i t -J 11 T. to taxation of dogs, and may fix the amount to be paid annually by dogs. owners of dogs ; and such regulations shall be published throughout the county for thirty days before they shall come into operation, 2. Dogs found chasing or worrying sheep may be ^^°efp killed, and the owners of such dogs shall have no right tined. of action against the persons killing the same. 3. The owners of dogs that have been found chasing l^^^r''^"" or worrying sheep shall be liable to a penalty not exceed- ing twelve dollars, if on being notified of the fact they continue to allow P>^ch dogs to go at large. chasine may I 396 deeds bt married women, [part ii. Chap. 110. PART II. OF THE ACQUISITION, TEANSMISSION, AND ENJOY- MENT OF PEOPEETY, EEAL AND PEESONAL, THE DOMESTIC EELATIONS, AND OTHEE MATTEES CONNECTED WITH PEIVATB EIGHTS. TITLE XXVIII. OF REAL PROPERTY AND THE ALIENATION THEREOF. CHAPTER 110. OF DEEDS BY MARRIED WOMEN. Deeds by mnr- 1. All dceds executed Under power of attorney or how executed, otherwise, made by a married woman jointly witli her husband, or concurred in by a separate conveyance exe- cuted by him, of estates to which she is entitled or may have any present or future interest, whether in her own right or by way of dower or otherwise, shall have the same effect as if made by an unmarried woman, if such power of attorney or deed be acknowledged by such married woman before a judge of the supreme court, or a justice of the peace, or a notary^'public being a barrister of the supreme court, as her free act and deed, and to have been executed without compulsion by her husband or to that effect, which acknowledgment shall thereupon be certified by such judge or justice, or notary public in writing upon such power of attorney or deed. seated »bro»y ^- ^^ such married woman reside without the pro- vince or be absent therefrom, such acknowledgment may be taken before the mayor of any city, the judge of any court of record, a justice of the peace, or before any public minister, ambassador, consul or vice-consul of the court of Great Britain, and shall be certified in writing on the power of attorney or deed by such public functionary ; and in the case of the acknowledgment being taken before the mayor of a city, judge of a court of record or justice of the peace, his certificate shall be authenticated under the hand and seal of a notary publi3. Acknowiedg- 3. Evcrv such acknowledgment and certificate shall be registered. registered with the power of attorney or deed, and shall TITLE XXIX.] ESTATES TAIL. — TITLE BY WILL. 397 be valid and effectual to bar the right, or right of dower Chap. 111. of any married woman in the lands and premises therein ~ mentioned. 4. Where a married woman shall not have executed a Mairiedw deed of lands simultaneously with her husband assigning Ss^rfte? her interest therein, she may at any future time execute a her husband, deed of release of her interest therein to any person in whom the fee-simple may be, providing that the execution of such release be acknowledged in the manner above pre- scribed. Oman OHAPTEE 111. OF ESTATES TAIL. 1. All estates tail on which no valid remainder is limited Estates tail are abolished, and every such estate shall hereafter be '' ° '^ "^ ' adjudged a fee simple absolute, and may be conveyed or devised by the tenant in tail, or otherwise shall descend to his heirs as a fee simple. TITLE XXIX. OF TITLE TO KEAL AND PERSONAL PRO- PERTY BY WELL. OHAPTEE 112. OF WILLS OF REAL AND PERSONAL ESTATE. 1. Any person may devise and bequeath' by his will, '"^^at prop?'-ty executed as hereinafter mentioned, all real estate and all personal estate, and all rights and interests in real or per- sonal estate to which he shall be entitled, either at law or m equity at the time of his death, and which if not so devised or bequeathed would devolve upon his heirs at law or representatives. 2. No will by any person under the age of twenty-one fi^ye°ars inram- years shall be valid. patent to make 3. A married woman may make a will in the following wius which instances ; that is to say, a will of her personal estate with "/ ^^arded^ her husband's consent expressed in writing ; a will appoint- women. ing one executor or more to a will whereof she is executrix, 398 TITLE BY WILL, [PART II. Chap. 112. or a will of real and personal estate to which she may be entitled in her own right or for her separate use ; an appointment by will made in pursuance of a power to be executed notwithstanding coverture. riidwoma^not ^- ^^ '^^^^ ^^^ ^'^J devisc Or bcquest in any will made vDid foragift bv a married woman shall be void by reason of any devise to her huaband. *' , , ™ .«, t ■•■ , j- ^i or bequest, or oi any gut or disposition to or lor the use or benefit of her husband. b^'executed"; ^- ^° "^^^^ ^^^^^ ^® Valid uuless it shall be in writing formalities ' signed at the end or foot thereof by the testator, or by requne . gome other person in his presence and by his direction ; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. s^'iOT^ViYit of ^- -^^J soldier being in actual military service, or any personal estate mariner or seaman being at sea, may dispose of his per- may be as ij.j.t.j.^ y J r r heretofore. sonal estate as heretotore. ^oSe°nt*Ey "^ • ^^ appointment made by will in exercise of any will to be power shall be valid unless the same be executed in man- executed as a 1 • T J? ' 1 -I -n , 1 • will, ner hereinbeiore required; and every will executed in manner hereinbefore required shall so far as respects the execution and attestation thereof be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power shall be executed with some additional or wills executed other form of execution or solemnity. qui?ed valid" ^- Evcry will cxccuted in manner hereinbefore required without further shall be Valid without any other publication thereof. N^wTiuobe 9- ^o '^ill shall be invalid on account of the incom- iScoiifpetency'^ pctcucy of the wituesscs to'pi-ove its execution. of witnesses. 10. All dcviscs, bcquests or appointments^ except atteltlnl witi° chargcs and directions for the payment of debts, to an b^nd o*wife"of ^-ttesting wituess of the will, or to the wife or husband of sMh person, such persou, shall be void, and he shall be admitted to but*two*'wUne7- provc the execution of the will or the validity or invalidity Toid.^'"'" ^^ thereof; provided that where there shall happen to be two competent ■^fitnesses to the will beside such person, such devise, bequest or appointment shall not be void. Debts charged n j^ ^asc by any will any real or personal estate shall upon real or t.,i*^ iii. t T, t personal estate be Charged With any debt, and any creditor or the wife or quaiify°the''' husbaud of any creditor whose debt is so charged shall w'itnes°s'. "" * attcst the cxecutiou of such will, such creditor notwith- standing such charge shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof. Executors^may 12. No persou shall ou accouut of his being an execu- tor of a will be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof. TITLE XXIX.] TITLE BY WILL. 399 13. All wills 'shall be revoked by marriage, except a Chap. 112. will made in exercise of a power of appointment, when the Marriage shaii real or personal estate thereby appointed would not in ex^ptiSolr- default of such appointment pass to the heir, executor or tain cases. administrator, or the person entitled as next of kin. 14. !N"o will shall be revoked by any presumption of an J^^'^^^JJ^"^ intention to revoke on the ground of an alteration in presumptions. circumstances. , > 15. 'So will or codicil or any part thereof shall be re- ^^ed.*"^^ ^^' voked otherwise than as above mentioned, or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is here- inbefore required to be executed, or by the burning, tear- ing or otherwise destroying the same by the testator or by some person in his presence and by his direction, with the intention of revoking the same. 16. No cancelling by drawing lines across a will or any pbiiteratioBs, , f, TIT •• T . 1 interlineations, part thereot, and no obliteration, interlineation or other alterations, ac. alteration made in any will after the execution thereof, Lndho'V fer^° shall be valid or have any effect except so far as the words theyahaii affect or the effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will ; but the will with such alteration as part thereof shall be deemed to be duly executed if the signature of the testator, made by himself or some other person in his presence and by his direction, and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will. 17. No will or codicil or any part thereof which shall h^\" "^y ed*^' be in any manner revoked, shall be revived otherwise than by the re-execution thereot, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same ; and when any will or codicil which shall be partly revoked and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall hiave been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown. 18. No conveyance or other act made or done subse- conveyances quently to the execution of a will of any real or personal how rarlhty/' estate therein comprised, except an act by which such will previoSFy*'"* shall be revoked as before mentioned, shall prevent the '^^^^^ operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death. 400 TITLE BY WILL. [PAKT II. Chap. 112. 19. Every will shall be construed, with reference to Wills, when to the real and personal estate comprised in it, to speak and Iratof^'to' be" ■'^^ke effect as if it had been executed immediately before tesfator'sran-"' ^^^ death of the tcstator, unless a contrary intention shall tracts incertain appear by the will. If the testator at the time of his cases. death were liable to perform any contract for the sale and conveyance of any real or personarestate,,the executors of his will shall, notwithstanding any devise or bequest of the real or personal estate to which such contract refers, be deemed trustees thereof so far as may be necessary for performing such contract, and shall have power to execute the necessary conveyances for the performance thereof; and the executors shall hold the purchase money subject to such uses and purposes as may in such will be expressed' respecting such real or personal estate or such purchase money or otherwise for the use and benefit of the estate. t'oTe'^il^uded 20. Unless a contrary intention shall appear by the j°^°y. residua- will, such real estate or interest therein as shall be com- prised or intended to be comprised in any devise in such will contained which shall fail or be void by reason of the death of the devisee in the life time of the testator or by reason of the devise being contrary to law or otherwise incapable of taking effect, shall be included in the resi- duary devise, if any, contained in such will. ^trafng wni^of 21. A devise of the land of the testator, or of the land teal estate in of the tcstator in auv place, or in the occupation of anv certain cases. , . j • x, ■ •n j.i • n -i -, • '' person mentioned in his will or otherwise described in a general manner, and any other general devise which would describe a leasehold estate, if the testator had no freehold estate which could be described by it, shall be construed to include the leasehold estate of the testator, or his leasehold estates or any of them to which such description shall extend, as the case may be, as well as free- hold estates, unless a contrary intention shall appear by the will. ^eTho^llim- 22. A general devise or bequest of the real or personal str'ied. estate of the testator, or of the real or personal estate of the testator in any place, or in the possession of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real or personal estate, or any real or personal estate to which such descrip- tion shall extend, as the case may be, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a con- trary intention shall appear by the will. Devises of real 23. Where any real estate shall be devised to any words of limi- persou without any words of limitation, such devise shall constl-JSi M a be construed to pass the fee simple or other the whole si^mpll"^"^*'^ estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will. TiTLfi XXIX.] TilLE BY Wliif.. 401 24. In any devise or bequest of real or personal estate, Chap. 112. the words "die without issue," or "die without leaving The words " dio issue," or " have no issue," or any other words which may without leaving ' . . ,1 i i- -1 j> • e • '99ie," 4c.,how import either a want or lailure oi issue or any person in construed. his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime, or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will by reason of such person having a prior estate, or of a pre- ceding gift being, without any implication arising from such words, a limitation of an estate-iail to such person or issue, or otherwise. But this chapter shall not extend to cases where such words import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age, or otherwise answer the description required for obtaining a vested estate by a pre- ceding gift to such issue. 25. Where any- real estate shall be devised to any trus- ^gtltrto^trus"-' tee or executor, such devise shall be construed to pass the tees or exeou- fee simple, or other the whole estate or interest which the stru'ed. testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable, or an estate of freehold, shall thereby be given to him ex- pressly or by implication. 26. "Where anv person to whom any real estate shall be Devises of devised for an estate-tail, or for an estate in quasi entail shaii not lapse shall die in the lifetime of the testator leaving issue, who oVthe^Xvlaee would be inheritable under such entail if such estate ex- ^''Aaforlf'th* isted and any such issue shall be living at the time of the devisee have death of the testator, such devise shall not lapse, but shall '^^"^^' take effect as if the death of such person had happened immediately after the death of the testator, unless a con- trary intention shall appear by the will. 27. Where ahy person beins; a child or other issue of pevises to tes- ^ ^ 1® 1,1111 tators children, the testator, to whom any real or personal estate shall be ac, who die devised or bequeathed for any estate or interest not deter- sha°f not 'lapse minable at or before the death of such person, shall die in issueuving.'^" the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had hap- pened immediately after the death of the testator, unless a contrary intention shall appear by the will. 28. Any person suppressing a will shall forfeit after the Penalty for sup- 1 i? xil j: i J.T.- r J ° X x J n c pressing a will. lapse of the first thirty days, twenty dollars for every month he shall so suppress such will. 29. The words and expressions hereinafter mentioned, J^rm"'°''°^ which in their ordinary signification have a more confined or a different meaning, shall in this chapter, except when the nature of the provision or the context shall exclude 51 402 JOINT TENANCY. [PART 11. Chap. 113. such construction, be interpreted as follows, viz : the word "will" shall extend to a codicil and to an appointment by- will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, and to any other testamentary disposition ; and the words " real estate" shall extend to manors, messuages, lands, rents and here- ditaments, whether freehold or any other tenure whatso- ever and wheresoever, and whether corporeal, incorporeal or personal, and to any undivided share thereof, and to any estate, right or interest, other than a chattel interest therein ; and the wofds "personal estate" shall extend to leasehold estates and other chattels real, and also to monies, shares of government and other stocks or funds, whether in this province or the United Kingdom or else- where, to securities for money not being real estates, to debts, rights of action, rights, credits, goods, and all other property whatsoever, which by law devolves upon the executor or administrator, and to any share or interest therein. TITLE XXX. OF TITLES TO EEAL PROPERTY BY SPECIAL PROVISIONS OF LAW. CHAPTER 113. OJ? JOINT TENANCY AND TENANCY IN COMMON. An estate to two 1. Evcrv estatc ffrautcd or devised to two or more or more persons .*', . ■ t ^ i m i ±_ unless declared pcrsous in their owu light Shall be a tenancy in common, tenancy" shau' udIcss exprcssly declared to be in joint tenancy ; but every estate vested in trustees or exei by them in joint tenancy. T well to estates already created after to be granted or devised. nn™n,'^n''Jl7„i'J ostatc vBstcd in trustees or executors as such shall be held when Tested in bv tlicm in loiut tcnancv. This section shall applv as tees or execu- Well to cstatcs already created or vested as estates here- title xxx.] sale op land under foreclosure, 403 Chap. 114. CHAPTER X14. OF THE SALE OF LANDS UNDER FORECLOSURE OF MORTGAGES, 1. "When actions of ejectment by a mortsjaffee or i° """ons for , • , T , •' 11, CO money secureij actions on bonds or notes secured by mortgage, or on any by mortgage covenant in the mortgage, are brought in the supreme ply^'into'cSurt court, and no suit touching th.e same matter is pending in rMonTOy^ance, the court, the person having the right of redemption on appearing as defendant may pay to the plaintift or bring into court the amount due with costs, and thereupon the court by a rule may compel the plaintiff to re-convey to such defendant the land mortgaged, and deliver up all writings in his custody relating thereto. 3. In case such mortgagor or any one of several of Proceedings , , ", " r TIT where one or such mortgagors be an absent or abscondmg debtor, a more of the declaration in ejectment or other process may be served S)se'nt''may be upon the tenant, if any, in possession of the lands, and absenrdlbtor?, upon any of such defendants who shall not be absent or absconding, and a copy thereof sh^ll also be left at the last place of abode of any of the defendants who may be absent or absconding ; and such service if made the usual time limited by law for service of process shall be suffi- cient to give jurisdiction to the court, and the plaintiff may proceed to final judgment and sale of the lands as hereinafter mentioned ; but before such declaration shall be served the same affidavit shall be made and filed in the office of the prothonotary of the county where the decla- ration is returnable, as is necessary in ordinary cases of proceeding against absent or absconding debtors. In cases under this section it shall not be necessary to wait two terms before going to trial as in other cases against absent or absconding debtors. 3. In case any persons beside the mortgagor are inte- Notice to be rested in the lands who would require to be made defend- fart/es*°as^m^ ants, if proceedings were had in chancery, then, in addition be d'eftSdlnt's.'' to the service ot process upon the defeudant, or proceed- ings in the second section mentioned where he is an absent or absconding debtor, a notice in writing shall be served on all such persons, their attornies or agents, specifying the proceedings that have been or are about to be taken, and requiring them to appear at the supreme court to protect their interests ; which notice shall be served the same length of time as is required in notices of trial. 4. In case the defendant shall neglect tq pay the saie of mort- amount found due tq the plaintiff by the court, with costs, ^"^^"^ pie^'se^ the court may order the lands mortgaged tq tie advertised by handbills in the pounty for at least thirty days, and thereafter to be sold at public auction by the sheriff of ^he county wherein the lands lie. 404 SALES OF LAND UNDER EXECUTION. [PART II. Chap. 115. 5. In case the defendant shall be an absent or abscond- Be-hearing lag debtor he shall be entitled to a re-hearing at any time SrfeiXuA'n within three years after judgment ; and the plaintifl; upon absent debtor, obtaining a rule for the sale of the mortgaged lands, shall give security for the re-payment of the sums levied, if judgment should be reversed on such re-hearing. ftTeflfcl'^whea 6. The dccd shall be executed and delivered by the reooided' shall sheriff to the purchaser, and shall be taken as presumptive goJ's'right;'^^''" evidence of the requisitions of this chapter having been ^ionmay^fs'sl'I: Complied with, and on being recorded in the books of registry for the county in which the lands lie, shall be sufficient to convey all the estate and interest of the mortgagor in the landa therein described, and the court may award a writ of possession upon judgment being had. Proceeds of sale ^ The sheriff shall out of the procccds of the salc pay how applied. , ■, . . m ■• -. ■, • '^ iiii j_i to the plaintiff the sum due to him, and shall pay over the residue if any to such person as the court shall direct. Powers of su- §_ The suprcmc court shall have the same powers as adjust equities, are possesscd by the court of chancery in reference to the proceedings in such suits, and for the equitable adjust- ment of the rights of the different parties interested. havV" oH°er°of ^- "^^^ powcrs hereby conferred upon the court may court. be exercised by a single judge thereof, except where the Exception. .j.j,^^j ^f ^jj issue beforc a jury may become necessary, subject to an appeal from any order of the judge to the court at its next term in the county. OHAPTEE 115. OF THE SALE OF LANDS TO SATISFY EXECUTION DEBTS. wnltend^'so" "'■• Judgments rccovcred in the supremc court shall bind soona's record- thc real cstatc of thc dcbtor from the time such judgment be'ievied tiii°° shall be Tccordcd in the books of registry for the county or after one year, (jig^rict whcrcin such real estate is situate ; but no lands shall be levied upon until one year after such registry. A beneficial in- 2. The interest of the party beneficially interested in hil'd in^tru-^t ^ lauds held in trust for him, may be taken in execution for iS^LeSutfo'Jf.'^ the payment of his debts in the same manner as if he were seized or possessed of such lands. a|am"t'hfnd's^ ^- Exccution as agaiust lands may issue at any time may issue with- within fivc years from the signing of the judgment, without ye years. ^ scive fucias Or Icavc of the court. Execution may 4. The plaintiff may order execution to be levied on the aVarto? ti?™ whole or any portion of the real estate lying within such TandB^as^ain- COUnty Or district. tiflf shall direct. 5. "Where a judgment has been so registered for the fud^menure- fcriod of One year, and qq levy |ia§ been made on the real TITLE XXX.] SALES OF LAND UNDER EXECUTION. 405 estate bound thereby, any judgment creditor whose judg- Chap. 115. ment has been subsequently registered, may, by a written ditors may re- notice, require the prior judgment creditor to levy on the hldgmenuie real estate within three months. di'or to levy. 6. If the prior judgment creditor shall not levy, the in case of neg- party giving the notice shall acquire a preference over the q'ifent eredSt'or " judgment creditor to whom such notice had been given. prefer''e'^noo"'*°' 7. The sheriff' upon receiving such execution, shall, at Lands to be the expiration of the one year, levy on such lands without wuholii^^" appraisement, and shall cause to be inserted for thirty ^aren'i'sld'lo"^ days next preceding the day of sale in the royal gazette "^Fa^^^ert-sl"*^ newspaper, and also, except in the county of Halifax, in ments. any newspaper which may be published in the county or district wherein the lands are situate, an advertisement containing a description of the lands directed to be levied on, stating that such lands have been taken in execution at the suit of the plaintiff" against the defendant, the time and place fixed for such sale, and having appended thereto the name of the sheriff and the attorney of the plaintiff". 8. The sheriff after causing copies of such advertise- copies of ad- ment to be posted up in the most public places of the be posted twen- township or settlement wherein the lands lie, for at least the'^hlghlst^ '° twenty days previous to the time appointed for the sale, ^•'•der. shall proceed to sell the same by public auction to the highest bidder. 9. If the defendant by notice in writing delivered to ^^y"^™' ""^ the sheriff at least ten days previously to the sale, require notice select that certain portions of the land so advertised be first potion \Thl sold, the sheriff' shall cause the same to be first put up fl'''*'^"''*- for sale, and if a sufficient sum should be realized there- from to satisfy the execution, interest and expenses, no other part of such lands shall be sold; otherwise he shall proceed with the sale of the remainder. 10. The sheriff shall deliver to the purchaser a deed of ft^^'operation'^' such lands, which shall be sufficient to convey to the pur- and effect. chaser all the interest of the defendant in the lands therein described, subject to prior incumbrances. 11. The sheriff's deed shall be presumptive evidence to be presump- of the defendant's title having been thereby conveyed to co^vTyanJTof the purchaser. _ ^tie."'"''''' 12. "Where the lands so conveyed shall be in the posses- where lands sion of the tenants of the defendant, the purchaser shall "on^of^ten- become the landlord, and shall have the like rights and se'shaiFbe-''^" remedies against the tenant as the defendant would have {=°™« 'i*® i''° cxccpt rc-priuts of books, the copyright whereof is books pro;^ protected by the acts of the imperial parliament. periai act. 10. On the importation of any reprint of books, bound UctidVn°book3 ^^ ^^ covcrs, the Copyright of which is protected by the protected by acts of the imperial parliament, there shall be paid an hSSTemiaed'to udvalorem duty of twenty per cent, but this duty shall not the proprietor, g^tcud to ncwspapei's Or othcr regular periodicals contain- •ing extracts only from such books. The duty when collected shall be paid into the treasury and remitted by the governor to the commissioners of customs at London, with a detailed account thereof, once a year, that the same may be paid to the registered proprietor of the copyright of the books respectively ; such reprints, however, shall not be liable to duty unless the originals shall have been registered according to the provisions of the imperial act passed in the fifth and sixth years of her majesty's reign, intituled " an act to amend the law of copyright." ■^eri* ^rn'ort-"^" ■'■■'■• "^^J persou who shall import or bring into the pro- ing, selling or viucc for salc, usc Or Hrc, any reprints hereby made liable re-prin ts,"how ^ to duty without paying the same, or shall knowingly sell, appi™d7re-''°"' publisli or cxposc to salc, or let to hire; or have in his prints forfeited, posscssion any such reprint, shall be liable to a penalty of twenty dollars and double the value of every copy of such reprint, which may be sued for before two justices of the peace as an ordinary debt, eight dollars thereof to go to the officer who shall sue for the same, and the remainder to be jjaid into the treasury and remitted for the registered proprietor of the copyright ; and every reprint imported contrary to these provisions shall be forfeited and sold, and one half of the proceeds thereof shall be paid into the treasury to the use of the registered proprietor, and the other to the seizing officer. ^o?tcd"tob^" ^^' ^^'^^ reprint on its importation shall be stamped Bt°am%d° by the officer before whom the entry is made, and the form of the stamp shall be furnished by the receiver general to the several outports if required. TITLE XXXI.] PATENT^. 40d Chap. 117. OHAPTEE 117. OF PATENTS FOR USEFUL INVENTIONS. 1. "Whenever any person resident in the province, and how'in/'b^'''' who shall have resided therein for the space of one year whom to b» previous to his application, shall apply to the governor, alleging that he has discovered any new and useful art, machine, manufacture or composition of matter or any new or usefal improvement thereon not heretofore used or known, and pray that a patent may be granted him for the same, the governor may direct letters patent to be issued, reciting therein the allegations of such petition, and giving a short description of such invention, and shall thereupon grant to the person so applying for the same and his representatives for a term not exceeding fourteen years the exclusive right of making, using and vending the same to others, which letters patent shall be good and available to the grantee, and shall be recorded in the secretary's office in a book for that purpose, and shall then be delivered to the patentee. 2. "Where any letters patent , shall be obtained by any pfttentees of person for any such invention, and thereafter any other n^fTo^u^g any person shall discover any improvement in the principle or original inyea- process of any such invention, and shall obtain letters patentee not to patent for the exclusive right of such improvement, the p?07ed^pkTe"iit. person who shall obtain such new patent shall not make, use or vend the original invention, nor shall the original patentee make, use or vend any such improvement. 3. The simple change of the form or proportions of changes of fom any machine or composition of matter shall not be deemed not''dTemed"/n a discoveivjf or improvement within the meaning of this improvement. chapter. 4. Persons applying for letters patent, on delivering in Fees on patents. their petition, shall pay into the secretary's office four dollars, to be applied as other fees payable therein. 5. Any person may receive from the secretary's office copjeiofietiers any copy of such letters patent, or of the petition whereon drawing, how the same were granted, or of any paper or drawing con- "^^^^^ '°'' nected therewith, on paying ten cents a folio, and a reason- able fee for every copy of such drawings. 6. Before any person shall obtain any letters patent he oath prernrato- shall make oath in writing that he verily believes that he [Jtte?s pa'tent* is the true inventor or discoverer of the art, machine or composition of matter, or improvement, for which he solicits letters patent, and that such invention or discovery has not been known in this province or in any other country, which oath shall be delivered in with the petition for such letters patent. 62 410 PATENTS. [part II. The affidavit may be sworn by the person making application before any judge or commissioner for secretary- office. Chap. 117. 7. Affidavit may SUCh ty whtr6°ap"°" taking affidavits in the supreme court or the custos of the piicant resides, county in which such pcrson shall reside. elpfanauons ^- Beforc any person shall obtain any letters patent he and models to shall deliver into the secretary's office an intelligible and tiie provincial" cxact description of such invention, and of the manner of using, or process of compounding the same, so as to enable any person skilled in the science of which it is a branch to make and use the same ; and in case of any machine, shall deliver a model, and explain the principle by which it may be distinguished from other inventions, and shall accompany the whole with drawings and written refer- ences where the case admits of drawings, or with speci- mens of the ingredients sufficient for the purpose of experiment where the invention is a composition of matter, which description, signed by such person and attested by two witnesses, shall be filed in the secretary's office, and copies thereof, certified by the provincial secretary, shall be competent evidence in all courts where matters concerning such letters patent may come in ques- tion ; but the governor may upon special grounds being shewn dispense with the delivery of the model at the secretary's office if he shall deem it right to do so. 9. Any patentee may assign all his right in such invention and discovery to any person ; and the assignee thereof, having recorded such assignment in the secretary's office, shall stand in the stead of the original patentee as well as regards all his rights as all his liabilities ; and the assignee of any such assignee shall also be considered to be in the stead of the original patentee. 10. Whenever any letters patent shall be granted to any person, and any other person, without the consent of the patentee or his representatives first had in writing, shall make, use or sell the invention or discovery whereof the exclusive right is secured to such patentee, the person so ofi^ending shall be answerable to him or his representa- tives in damages. 11. The defendant in such action may give this chap- ter and every special matter in evidence to prove that the specification filed by the patentee does not contain the whole truth relative to the invention or discovery alleged to have been made by him, or contains more than is necessary to produce the described eff'ect, which conceal- ment or addition shall fully appear to have been fraudu- lently made, or that the invention or discovery so secured by letters patent was not originally discovered by the patentee, but had been in use or had been described in some public work anterior to the supposed invention or •discovery of such patentee, or that such patentee had surreptitiously obtained such letters patent for the inven Patentee's rights may be assigned ; as- signments to be recorded. Actions for ille- gally using or selling a patent, Defence, how pleaded, and what may be §iven in evi- ence. TITLE XXXII.] FRAUDS AND PERJURIES. 411 tion or discovery of some other person, in either of which Chap. 118. cases, upon proof thereof, the verdict shall be found and judgment entered thereon for the defendant with costs, and such letters patent, by the court, shall thereupon be adjudged void. TITLE XXXII. OF FRAUDS, PERJURIES AND SECRET BILLS OF SALE. OHAPTEE 118. OF THE PREVENTION OP FRAUDS AND PERJURIES. 1. All leases, estates, or other interests in lands not put Leases and in writing and signed by the parties creating or making noUn wdting"*^ the same, -or their agents thereunto authorized by writing, ^°i^'^^^f^°t as shall have the force of leases or estates at will only, except *« 'eases under leases not exceeding the term of three years from the ''®®^®''"' making thereof whereupon the rent reserved shall amount at least to two-thirds of the annual value of the lands demised. 2. ]N"o interest in land shall be assigned, granted or sur- interest in rendered, except by act and operation of law, unless it be we'^on'iy 'fy^ by deed or note in writing, signed by the party assigning, ^r?ting'^.'^°'^'° granting or surrendering the same, or by his agent there- unto authorized by writing. 3. ISTo action shall be brought whereby to charge any Previous con- executor or administrator upon any special promise to Sro'lnJents answer damages out of his own estate, or whereby to ^ ^e'ln'^^^i'to charge a defendant upon any special promise to answer for and signed by the debt, default or miscarriage of another person, or chlrleawe. whereby to charge any person upon any agreement made upon consideration of marriage, or upon any contract or sale of lands or any interest therein, or upon any agree- ment that is not to be performed within the space of one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof shall be in writing, signed by the party to be charged therewith, or some other person authorized by him — provided always that it shall not be necessary that ^^°^^^°- such agreement, memorandum or note shall specify the consideration upon which it was given. 4. No contract for the sale of any goods for the price °°°^'3^<=ig/°e' of forty dollars or upwards shall be good, except the buyer forty dollars not 412 SECRET BILLS OP SALE. [PAET 11. Chap. 119. accept part of the goods so sold and actually receive the valid unless the Same, Or givc Something in earnest to bind the bargain or pan^' fve^eara- i" P^^"* of payment, or that some note or memorandum in est money, or a -writing of the bargain be made and signed by the parties be'dgned'"'"^ to be charged by such contract, or by their agents there- unto authorized. fnd'"?«tions 5. 'No declaration or creation of a trust in lands shall of trust in lands be Valid uulcss it shall be in vs^riting, signed by the party impfiecrandle' entitled to declare or create the trust, or by his last will ; Ixoe^fed""'^ but this provisiou shall not extend to any trusts in lands arising or resulting by implication or construction of law, or which may be transferred or extinguished by act or operation of law. A«signment of g_ j^q grant or assignment of any trust shall be valid wrfting." * '" unless it shall be in writing, signed by the party granting or assigning the same, or by his last will. OHAPTEE 119. OP THE PREVENTION OF FRAUDS ON CREDITORS BT SECRET BILLS OF SALE. Bills of sale or 1. Evcry bill of sale of personal chattels made after the '""flildTith*" passing of this chapter, either absolutely or conditionally, deldsThe"*^ or subjcct Or not subject to any trust, and whereby the maker resides, assigncc shall havc powcr either with or without notice on the execution thereof, or at anj* subsequent time to take possession of any property and effects comprised in or made subject to such bill of sale, and every schedule an- nexed thereto or therein referred to, or a true copy of such bill of sale and schedule, shall be filed with the regis- trar of deeds of the county or district where the maker resides, and in case a copy be filed the same shall be accompanied by an affidavit of the execution of the original bill of sale, otherwise such bill of sale as against the assignees of the grantor, under the insolvent debtors act, or for the general benefit of his creditors, or as against the execution creditors, or sheriffs and constables, and other Only to take pcrsous levying on or seizing the property comprised date of'^fiihlg. therein, under process of law, shall only take effect and have priority from the time of the filing thereof. Defeasance to 2. In casc such bill of Sale is subject to any defeasance the same shall be considered as part thereof, and such defeasance, or a copy thereof shall be filed with the bill of sale or copy, otherwise such bill of sale shall be null and void as against the same persons and as regards the same property and effects, as if such bill of B9,le or copy thereof TITLE XXXII.] SECRET BILLS OF SALE. 413 had not been filed according to the provisions of this Chap. 119. chapter. ' 3. The registrar of deeds shall cause the bills of sale or Bius of snie copies thereof, so deposited with him, to be numbered and- mimbelld a°nd° indexed, and an alphabetical list thereof to be made in a '°'''^''«'^- book to be kept by him for that purpose, containing the name and description of the grantor and grantee, the date of execution and filing, and the sum for which the same has been given, and every bill of sale and copy may be inspected by any person paying a fee of twenty cents ^^®^°'' ^"^p^"- therefor. 4 When a bill of sale shall have been discharged an Discharge, how entiy of such discharge may be made in the registry list upon the production of a certificate from the holder of such bill of sale duly attested to by the oath of a subscribing witness made before the registrar of deeds or any justice of the peace, or otherwise as required for the registry of deeds of real estate, and such certificate shall be indexed and entered on the list, and on the files kept by the registrar. 5. The registrar shall be entitled to twenty cents for Eogistrai's fees his trouble in filing, indexing and entering every bill of sale and copy, and to twenty cents for administering every oath under this chapter, and to twenty cents for entering and indexing every certificate of discharge of a bill of sale. 6. In constrains: this chapter the following words and Meaning of TTii^ .1 ^ - 1 -, ^ • T . terms used in expressions snail nave the meanings hereby assigned to chapter. them, unless there be something in the subject or context repugnant to such constructions, that is to say : The expression "bills of sale", shall include bills of "buis of sale.- sale, assignments, transfers, declarations of trust without transfer, and other assurance of personal chattels, and also powers of attorney, authorities or licenses to take posses- sion of personal chattels as security for any debt; but shall not include the following documents, that is to say, assignments for the general benefit of the creditors of the person making or giving the same, marriage settlements, transfers or assignments of any ship or vessel, or any share thereof, transfers of goods in the ordinary course ot busi- ness of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, warehouse keepers certifi- cates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control af goods, or authorizing or purporting to authorize either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented, assignments of personal property to creditors under proceedings for the relief of insolvent debtors. 7. The expression "personal chattels" shall mean ^'P|rfonai chat- goods, furniture, fixtures and other articles capable of 414 REGISTRATION OP MARRIAGES, ETC. [PART II. Chap. 120. complete transfer by delivery, and shall not include chat- ■ tel interests in real estate, nor shares or interests in the stock, funds or securities of any government, or in the capital or property of any incorporated or joint stock com- pany, nor choses in action. 'JfJS^n^"' •""" 8. Personal chattels shall be deemed to be in the " ap- parent possession " of the persons making or giving the bill of sale so long as they shall remain or be in or upon any building, land, or other premises occupied by him, or as they shall be used and enjoyed by him in any place whatsoever, notwithstanding that formal possession thereof may have been taken by or given to any other person. TITLE XXXIII. OF THE DOMESTIC EELATIONS. OHAPTEK 120. Governor in council to pre- ■cribe forma. Definition of terms. Persons who may solemnize marriage. Marriage by publication of banns. OF THE SOLEMNIZATION OF MARRIAGE AND THE REGISTRA- TION OF MARRIAGES, BIRTHS AND [DEATHS. 1. The governor in council may from time to time pre- scribe and change forms to be used in the carrying into operation of and for facilitating and rendering uniform the duties to be performed under this chapter, and which forms shall be used under the provisions, penalties and obligations of this chapter, in the same manner as if set out in a schedule hereto and specially referred to, unless from the context the meaning is evidently different. The terms " deputy registrars " mean the issuers of marriage licenses and deputy registrars of marriages, births and deaths; and "occupier" shall include master, governor, keeper, steward, resident medical officer or superintendent of gaol, prison or penitentiary, poors' asylum, hospital, lunatic asylum, or other public or private charitable insti- tutions. 2. Every person recfbgnized as a duly ordained minister by any congregation or body of christians within this province, may solemnize marriage by license, or after pub- lication ..of banns, in conformity with the provisions of this chapter. 3. No person shall officiate in the solemnization of any marriage unless notice of such marriage shall have pre- viously been given publicly during the time of divine TITLE XXXII.] BEQISTBATION OF MARRIAGES, ETC. 415 seryice at three several meetings at a place of public Chap. 120. worship on two or more Sundays — provided there shall be ~~^ more than one public service in the said place of worship on each Sunday, otherwise at two several meetings on two Sundays in the place where at least one of the parties resides, or unless a license shall have been obtained as herein prescribed for the solemnization of such marriage. 4. The officiating minister of a congregation at the pffloiatingmin- place where either of the parties desiring to be married ffanL? '*" resides, shall give the notices in the preceding section mentioned, after having been requested to do so, iinless in cases where compliance would be illegal or inconsistent with the rules and discipline of the church or congrega- tion to which the minister or parties respectively belong. OP LICENSES FOR THE SOLEMNIZATION OE MARRIAGE. 5. The governor may from time to time sign and seal fignTc°e'nses; marriage licenses in blank, which shall be deposited by '^°«'<^'^*"''"'^^ the provincial secretary with the postmaster general for distribution, who shall place them in such number as may from time to time be required, together with an equal number of blank bonds, in the hands of persons to be appointed by the governor in council throughout the pro- vince to be issuers of marriage licenses and deputy regis- trars of marriages, births and deaths, and who shall be so located as that no part of any county shall be at incon- venient distance from one of them. "When it can be ^ , conveniently and properly done, postmasters and way Acto be issuers office keepers shall be selected, and due publicity under ^ent."™^"' the direction of the governor in council shall be given to these appointments and the objects of this chapter. 6. The deputy registrars shall deposit with the post- g|P"'y "^''" master general, a receipt for all the blank marriage licenses receipts for they shall respectively receive, for which they shall be '"'®°'®'' answerable to him at the rate of two dollars and fifty cents for each license. 7. When a marriage license is required for use, applica- Marriage licen- . ri, ■, -i."-! . -i -u ' ^^ . ses, how issued. tion shall be made to a deputy registrar, who on receiving for the license two dollars and twenty-five cents, and for his own use a fee of twenty-five cents, and on execution by the man contemplating marriage and sufficient sureties, of one of the bonds properly filled up, shall insert in one of the blank marriage licenses in his possession the name of the minister to whom it is to be directed, and the names, abodes and additions of the man and woman to be married, and having subacribed it with his own name and the exact date of issuing, shall deliver the license so perfected to the party applying, and a marriage license shall not be issued or delivered except thus perfect and adapted for some particular marriage clearly expressed in it; and it shall not on any pretence be used for any other marriage. The 416 EEaiSTRATION OF MARRIAGES, ETC. [PABT II. Chap. 120. bond among other things may be conditioned for return of the license. rOE OBTAINING THE MATERIALS FOB THE REGISTKATION OP MARRIAGES, BIRTHS AND DEATHS. 1. — For Registration of Marriages. ^Z°Ktam^os 8. The deputy registrars shall record the issue of every licenses. license with the date, and the names of the clergyman, the parties and sureties ; and shall record the return of every license, with the date when received by him, and the particulars of the marriage, and the name of the offi- ciating clergyman as certified in the return. Clergyman to 9. Everv clers-yman authorized bv law to perform the record particu- • " i ti i r i i_ n t .lars. marriage ceremony shall apply tor, and shall, on applica- tion, obtain from the nearest deputy registrar, forms in which he shall register with the required particulars, all the marriages celebrated by him, whether by banns, license, or otherwise. But this shall not be construed to interfere with the keeping of any othei marriage register he may be otherwise required or may see proper to keep. 2. — For Registration of Births. t^°bi° giveBto'^ 1^- The father of any child born in this province, or in ^eTstrar'^'^^"'^ casc of his death or absence, the mother, or in case of the death or inability of both parents, any person standing in the place of the parents, or if none such be, then the occu- pier of the house or tenement in which to his knowledge such child was born, or the nurse or some person present at the birth, shall, as soon after the birth as possible, give notice thereof to the nearest deputy registrar, who shall His duty there- fill Up the form to be provided for that purpose with the °°' several particulars required in it, according to the know- ledge of the informant, who shall thereupon sign the same. The deputy registrar shall subscribe his name as witness, and in case of his absence, some person authorized by him shall perform the duty and subscribe the record in his stead. Birth to^i^e^j^ n. After the expiration of six months from the day [n^six'moJths ; of the birth, it shall not be lawful for any deputy registrar exception. ^^ register the birth of any child, except children born at sea. ^hnf'wrfh ^^' -^^ registering the birth of an illegitimate child, it how registered, shall uot be lawful for the name of any person to be entered as the father, unless at the joint request of the mother and of the person acknowledging himself to be the father, who, in that case shall sign the register as informant, along with the mother; and in such case the deputy registrar shall write the word " illegitimate " under the child's name in the register. TITLE XXXIII.J REQISTRATION OF MAERIAaES, ETC. 417 13_. If any child of a parent usually resident in Nova Chap. 120. Scotia shall be born at sea*and an entry of birth made in ^i^^JT^T^ir" the vessel's log book, the deputy registrar may, on suffi- how registered. cient proof of the correctness of such entry, cause the same to be registered in a book kept for that purpose, called " the mayne register book of births." 8. — For the JRegisiration of Deaths. 14. Some person present at the death of any person, or f°*-lf %^^^^^ the occupier of the house or tenement in which a death n°earlsPd?puty shall take place, or if the occupier be the person who shall ''^«""'"- have died, then some one or more of the persons residing in the house in which the death took place, or if such death shall not have taken place within a house, then any person present at the death, or having knowledge of the circum- stances attending the same, shall before the interment of the body, or within ten days after such interment, supply to the nearest deputy registrar, according to his or her knowledge or belief, all the particulars required to be registered touching such death by the form to be provided, and shall sign the form or certificate when filled up in pre- sence of the deputy registrar, or of a witness in case of his absence. 15. If any person shall find exposed any new born New bom child child, he shall forthwith give notice of the finding of the nXef&?°'"^' same to the nearest deputy registrar, who shall after the proper enquiry take from the informant a certificate signed by him of so much of the particulars required to be regis- tered as shall have been ascertained. 16. In every case in which an inquest shall be held on inquest, notios any dead body, the coroner shall communicate the finding of the jury by certificate, in writing under his hand to the nearest deputy registrar within seven days after the hold- ing of the inquest. IT. Every duly qualified medical practitioner who shall ^tfone^^^'fn^at- have been in attendance during the last illness, and until tendance to the death of any person, shall within seven days after the orcaSses' oT * death of such person transmit to the nearest deputy regis- '*®'''^' trar a certificate under his signature of the cause of death, according to a form .to be provided by the deputy regis- trar ; and it shall be the duty of every duly qualified medi- cal practitioner to apply for blank forms for this purpose. 18. If any person usually resident in Nova Scotia, or Deaths at sea, the child of any such person which shall be born at sea, how registered, shall die at sea, and an entry of the death be made at the time in the vessel's log book, the deputy registrar may on sufiicient proof of the correctness of such entry cause the death to be entered in a book kept for that purpose, called "the marine register book of deaths." 19. It shall be the duty of every deputy registrar to JJ^P^'^J'^f^^of, ascertain as far as may be in his power the several 53 418 EEGISTRATION OF MABEIAGES, ETC. [PAKT II. Chap. 120, Governor in council to de- fine limits of jurisdiction. marriages, births and deaths occurring in his vicinity, and to cause the same to be registered under the provisions of this chapter : "When persons whose signatures are required are unable to write, their cross or mark made in the presence of, and attested by, the deputy registrar or a witness, shall be equivalent to signature. And it shall be in the power of the governor in council, should it be found expedient for carrying out this chapter, from time to time to cause the limits to be defined of all, or of some only, of the deputy registrar's jurisdiction under this chapter, and as occasion may require to alter the same, of which due publicity shall be given. Errors in en- tries ; how corrected. Registration returns to be free of postage. OF THE REGISTRATION OP MARRIAGES, BIRTHS AND DEATHS IN EACH COUNTY OR DISTRICT. 20. If any error shall be discovered to have been com- mitted in the entry of any marriage, birth or death in any register, the person discovering the same shall forthwith give information thereof to the deputy i^egistrar, and such deputy registrar is hereby authorized and required to investigate the circumstances of the case ; and if he shall be satisfied that an error has been committed in any such entry it shall be lawful for him to correct the erroneous entry, according to the truth of the case, by entry in the margin, without any alteration of the original entry. 21. Envelopes enclosing the papers or returns required to be transmitted and made under this chapter shall be marked " registration returns," with the signature of the officer or clergyman transmitting subscribed, and no post age shall be paid or payable thereon. RETURNS. 1. — By Clergymen. Keturns by clergymen ; when and how -frar made. ^''^^ Clergyman to transmit regis- ter annnally. 22. Every clergyman shall return to the deputy regis- by whom the same is subscribed, every marriage license used by him for the celebration of marriage within ten days after such celebration, with the blank certificate endorsed thereon, fully filled in and subscribed by himself, stating the fact of the celebration,' the names, abodes and additions of the couple married, the time and place of such marriage, and the names of at least two persons present thereat besides himself. 23. Every clergyman authorized by law to perform the marriage ceremony shall annually in the first week in January transmit under his signature to the deputy regis- trar from whom he received the blank forms, or if he shall not continue deputy registrar then to his successors, or otherwise to the nearest deputy registrar, the register TITLE XXXIII.] REGISTRATION OF MARRIAOES, ETC. 419 of all marriages solemnized by Mm in the preceding year, Chap. 120. and -which he is required by this chapter to keep. The ~ deputy registrar shall give to every clergyman a receipt for licenses returned and registry of marriages given in under this chapter ; and in case of removal of the clergyman i" '="^^3 of re. from the county he shall make such return before his ^"' '' removal or immediately thereafter, and in case of his death the same shall be immediately thereafter liiade by his executors or administrators. 2. — Bi/ Deputy Registrar. 24. Every deputy registrar shall in the second week in Deputy regis, January in each year return under his signature to the annual returns financial secretary as regards the year ending on the thirty- secretly*' first day of December preceding as follows : I. AH the licenses issued by him and returned to him, with all certificates of marriage returned to him. II. All bonds taken by him on the issue of marriage licenses. III. All the registers of marriage returned to him by clergymen. IV. His own records of marriage licenses issued by and certificates of marriage returned to him. V. All the declarations or certificates of birth made to him. VI. All the certificates or declarations of deaths and causes of death made to him. Yn. And generally all the entries and returns required under this chapter to be made by the deputy registrar m relation to births, marriages and deaths, together with an exact list of the documents returned, signed by him. 25. Every deputy registrar shall also within the first To return ae- week of January, April, July and October in each year, m^Jter genera' return to the postmaster general an account verified under ^"^""^"y- oath of all marriage licenses issued by him, and of the number of marriage licenses remaining in his hands, and shall pay and with such account transmit to the post- master general the full amount of fees on all licenses issued by him, at two dollars and fifty cents for each license, deducting the sums paid by him to clergymen under the twenty-eighth section, and of which he shall render an account under his signature. 3. — By Postmaster General. 26. The postmaster general shall, within the first week postmaster gen of February in each year, return to the provincial secre- |Jcou'nts"nn™- tary, for the information of the legislature, a separate ^"^oiaVs'lcreta". account of monies received for marriage licenses and paid ry. out of that fund under this chapter ; also, an account of the marriage licenses issued, and to whom, and the num- ber standing still charged against each deputy registrar. 420 Chap. 120. Fees of deputy- registrars. EEaiSTRATION OF MABRUGBS, ETC, [PART II. OP REMUNERATION OF OFFIOERS. 1. — The Deputy Registrar. 27. The deputy registrars shall be entitled to receive the following fees, that is to say : I. A fee of twenty-five cents on the issuing of every marriage license,, to be paid by the party applying for or obtaining the license. II. Also, a fee of twenty-five cents for every clergyman's annual return of marriages, which he shall transmit to the financial secretary v/ithin the period hereinbefore pre- scribed, to be paid him by the postmaster general out of the marriage license fund, on the certifiaate of the finan- cial secretary ; but he shall not be entitled to this fee if any of the returns he is required under this chapter ten make to the financial secretary, or the quarterly return and the payment of money he is required to make to th& postmaster general, be not severally made within the time^ required by this chapter. III. Also, on making entry of each birth, a fee of ten cents, to be paid by the county treasurer out of the county funds. rV. Also a fee of ten cents for every entry of death made by him under this chapter, to be paid by the county treasurer out of the county funds. Fees of clergj'' men. 2. — The Clergymen. 28. Every clergyman shall be entitled to twenty-five cents for every return of maariage made as hereinbefore directed to the deputy registrar — provided it be made within the time and in the manner and to the effect here- inbefore prescribed, to be paid by the deputy registrar at the time of the return out of the fee deposited with him for the mai-riage license so returned; and also shall be entitled to a fee of twenty-five cents for every annual return made by him within the period directed by this chapter, to be paid by the deputy registrar at the time of the return out of the marriage license funds in his hands. PENALTIES. Penalty for solemnizing marriage with- out license o: banns. 29. Every person who shall officiate in the solemniza- tion of marriage, unless under license issued in conformity with the provisions of this chapter, or under banns, or notices given in conformity with the provisions of this chapter, shall forfeit two hundred dollars. For neglecting 30. Evcry officiating minister of a congregation, who to give notices. ^^Xl in violatiou of the fourth section refuse or neglect to give the notices directed by that section, shall, except as therein excepted, foffeit two hundred dollars, and shall be TITLE XXXIII.] EEQISTBATION OF MARRIAGES, ETC. 421 liable to an. action for damages at the suit of either of the Chap. 120. parties aggrieved. ' ' 31. Any minister who shall use, and all persons who For using \m- shall be instrumental in the using of, a marriage license ^^^ '"^' loenso. that shall not have been perfected and filled up and sub- scribed by a deputy registrar in manner as herein directed, and any person who shall alter or assist, or be concerned in altering, any marriage license that has been so perfected. For altering or shall celebrate or assist or be concerned in celebrating ''°^°^®- any marriage under pretence of a marriage license issued for another and different marriage, shall, for every and each of the said offences, be liable to a penalty not ex- ceeding two hundred dollars. 32. Every clergyman who shall not withm ten days ,^°g''uooVse'"™" after the celebration of a marriage by him under license, return the license with a certificate of the performance of the ceremony as required by this chapter, and every cler- gyman entitled to solemnize marriage who shall not within the time and in the manner required by the twenty-third section make the annual return of marriages therein For not making directed, to the deputy registrar from whom he received ^™"^ the blank forms, or if he shall not continue to be deputy registrar, then his successor, or otherwise to the nearest deputy registrar, or in case of absence from home or illness, then within ten days after return or recovery, shall, for each neglect, forfeit for the use of the deputy registrar to whom the return should be made four dollars, and for every day after such ten days until return shall be made as required by this chapter, twelve and one half cents. 33. Every deputy registrar who neglects or refuses, or For omitting to without probable cause omits to make any entry or fulfill ™"''® entries, anj^ duty, which by this chapter he ought to make or do, or who shall carelessly lose or injure any license or bond, register, entry, document or paper which was in his pos- session under this chapter, or who shall not within the periods herein prescribed make all the several returns and payments which by this chapter he ought to make, or who shall part with or allow to go out of his possession any marriage license, except in conformity with the provisions of this chapter, or who shall in any other particular do anything contrary to the provisions of this chapter, or omit to do anything therein-required, shall forfeit, to be paid to the financial secretary for the use of the marriage license fund, a fine of four dollars, and the further sum of twelve and one half cents for every day for which any such return or payment shall be delayed after the time within which the same should be made. 34. Every person who shall knowingly or wilfully |j^g|°"tXmen^ make, or shall cause to be made for the purpose of being to be guiuy of inserted in any register of births, marriages or deaths, any '^^"'^'""^■ false statements touching any of the particulars herein 422 REGISTRATION OF MARRIAGES, ETC. [PART II. OiiAP. 120. required to be known and registered, shall be subject to the same pains and penalties as if such person were guilty of wilful and corrupt perjury. ?e^1ster'"birth ^^- -^"^ pcrsou who, being required by this chapter to or death. notify Or enter for registry any birth or death, shall fail to do so within the periods specified, shall be liable to a penalty of five dollars. Neglecting to 3g jf ^ny pcrsou required to give notice of the find- notify finding . J f i,-ij i ii° i j. x • i of new born mg of any uew born child, shall neglect to give such ''^^^^' notice to some deputy registrar near the place within one week, such person shall be liable to a penalty not exceed- ing five dollars. tio^Sailin^lto 37. Any duly qualified medical practitioner, or any s^w'y certil- coroner, failing to supply any certificate of cause of death, or any information required of them by the provisions of this chapter, within the time specified therein, shall be liable to a penalty not exceeding five dollars. Pubiisiiing gg^ Evcry person who shall wilfully send to any news- false statement ii.i^ t pit .« of marriage, paper publisher, or other person, tor publication m any newspaper in this province, a fictitious or false statement of the marriage or death of any person, or of the birth of any child, shall be guilty of a misdemeanor, and liable to fine or imprisonment, or both, at the discretion of the supreme court. EECOVERY AND DISTRIBUTION OP PENALTIES AND FINES. reo°Tered''°" ^^* -^^^ fines and fees made payable to or for the use of a deputy registrar may be sued for in the name of the party entitled as a private debt ; and it shall be sufficient to state in the writ that the money is claimed for the defendant's neglect of duty, or for services performed by the plaintiff", under this chapter, as the case may be. S'ciued™ ''™" ^^" -^^^ fines, penalties and forfeitures which are not made payable to or to the use of the deputy registrars, may be prosecuted by the financial secretary in the county or district wherein the offence occurred. The money when How appropri- rccovercd, after deducting expenses, shall be applied one- half to the use of the married license fund and the other half to the use of the county, to be paid to the county treasurer. conduited^' 41. The actious shall be conducted as for private debts, and it shall suffice if the writs briefiy state the offence committed. Financial 42. The financial secretary shall cause to be transcribed transcribe par- in Separate books, all the particulars communicated to him paper" '""'^'* by the deputy registrars of the marriages, births and deaths, within each county ; and after having extracted and entered in such books their contents, shall place in safe keeping, in separate and appropriate files, all the papers and docu- ments, certificates, entries and returns thus received. TITLE XXXIII.] GUARDIANS AND WARDS. 423 43. He shall also keep separate alphabetical indices of Chap. 121. the contents of the said hooks, and in the index to the ^;~ '. marriage record there shall be entered reference to the dices ^of con- husband by his surname, and to the wife by her maiden '^"'^ °^ ^°°^^' name, and also by the surname of any husband she may have had. 44. All persons shall be entitled at all seasonable hours Books open for to search these records, and to require and to receive "'''^^° '*"'■ extracts duly certified by the financial secretary, which shall be evidence of the entry certified and prima facie evidence of the facts asserted or claimed in the entry. The financial secretary shall annually transmit to the ^jj^^^JJ^j.*' several registrars of deeds thi'oughout the province, tran- transmit manu- scripts of the entries in the books and alphabetical indices trar'^oVdeeds!" mentioned in this section, so far as the same are applicable to each county during the previous year, which transcript, be^fifed ?i*^ re- certified by the financial secretary, shall be filed by the gistrar of deeds said registrars, and be accessible for examination on pay- May be ex- ment of twenty cents, and shall be prima facie evidence p™mett"Sf° of the facts therein stated. twenty cents. CHAPTER 121. OF GUARDIANS AND WARDS. 1. The father of unmarried children under the age of Guardians may . . . . ..... ° be appomted twenty-one years may by any instrument in writing, execu- by the father, ted in the presence of two witnesses, dispose of the custody and tuition of such children, or of any child who at the time of his father's death may be unborn, so long as they shall respectively remain under the age of twenty-one years, or for any shorter period ; and the father may make such disposition, though he be not himself of the age of twenty-one years. 2. Judges of probate may appoint guardians to minors Guardians, where none have been appointed by the father, the next of TpMlnted by* kin to be appointed if any of them shall apply, unles^ on f^^ °* p''°" special cause shewn the judge of probate shall decide to the contrary, otherwise such person as the judge shall think proper ; but if the minor be of the age of fourteen years, or having had a guardian appointed by the judge of probate shall arrive at the age of fourteen years, he may appoint his own guardian, and such appointment shall be confirmed by the judge of probate, on the guardian giving the security hereinafter specified. 3. All guardians appointed under the provisions of this ^f^^^^ of guaN chapter shall have the exclusive control of their wards, and 424 MASTERS, APPRENTICES AND SERVANTS. [pART It. Chap. 122. Bonds to be given; their conditione. Letters, how applied for and when granted. Apprentice- snips entered upon jiot affec- cd thereby. may maintain actions against any person who shall take them away or detain them, and shall recover damages for their benefit. They may take possession of all their pro- perty, real and personal, receive the rents and profits thereof, and manage the same during the period of their guardianship, and may maintain all actions at law or in equity in relation thereto as Such children could do if of full age. 4. Every guardian appointed by the judge of probate, or nominated by the minor and confirmed by him, shall, previous to the letters of guardianship being issued, file in the probate court a bond, with two sureties to be approved of by the judge, and to be taken in his name, with a con- dition that he will faithfully manage and dispose to the best advantage of the property of the minor committed to his care, that he will not commit waste thereon, and will render a just account thereof to the court of probate when required, and to the ward when he shall come of age. 5. JSTo letters of guardianship shall be granted by any judge of probate unless application therefor be made by the minor or some near relation of his, or by the execu- tors or administrators of an estate in which the minor is interested ; and the judge upon such application may appoint guardians in any suit pending before him, for the purposes of such suit, without requiring a bond. 6. The provisions of this chapter shall not affect anj' apprenticeship which may legally have been entered into by or on behalf of any minor, or, by any overseers or com- missioners of the poor. OHAPTEE 122. OF MASTERS, APPRENTICES AND SERVANTS. Minors may be bound as ap- prentices or servants. Under fourteen years, how bound. 1. All children under the age of fourteen years may be bound as apprentices or servants until that age, and all minors above the age of fourteen years, may be bound as apprentices or servants ; females to the age of eighteen years or to the time of their marriage within that age, and males to the age of twenty-one years, in the manner pre- scribed in this'chapter. 2. Children under the age of fourteen years may be bound by their father, or in case of his death or incom- petency, by their mother, or by their legal guardian, and if illegitimate, they may be bound by their mother ; and if they have no parent competent to act, and no guardian, they may bind themselves with the approbation of two justices of the peace. TITLE XSXIII.J MASTERS, AVPEENTICiiS ANt> SERVANTS. 425 3. Minors above the age of fourteen years may bo Chap. 122. bound in the same manner — provided that when they are Above fourteen bound by their parent or guardian, the consent of the ^°'''' ''°"'»'^- minor shall be expressed in the indenture, and testified by his signing the same. 4. Ifo minor shall be bound otherwise than by an indenture to indenture of two parts, sealed and delivered by both seai'ed\°nrcCT- parties ; and when made with the approbation of the *' "sel'° '"'"'''''" justices of the lieace, their approbation shall be certified in writing, signed by them upon each part of the inden- ture. 5. One part of the indenture shall be kept for the use custody of „■ _ . ^ ^ , , -. ^ ^ T ^ minorspart, or the minor by his parent or guardian when executed by them respectively, and when made with the approbation of two justices of the peace, it shall be deposited with the town clerk or clerk of the peace, and be safely kept in his office for the use of the minor. 6. The overseers of the poor may bind as apprentices overseers of ,,T . T-TT n -t poor may bind or servants, the minor children ol any poor person, who out pauper has become chargeable to the district, as having a lawful """'"'^• settlement therein, or who is supported there in whole or in part at the charge of the district ; and also all minor children, who are themselves chargeable to the district as having a lawful settlement therein, or as poor persons supported by the district. 7. Such children whether under or above the age oi If^lf^^^^^;^, fourteen years may be bound, females to the age oft™*- eighteen years, or to the time of their marriage within that age, and males to the age of twenty-one years ; and pro- vision shall be made in the contract for teaching such children to read, write and cypher, and for such other instruction, benefit and allowance, either within or at the end of the term, as the overseers may think reasonable. 8. No minor shall be bound by the overseers unless by Minors, how an indenture of two parts, sealed and delivered by the seers. '' °^^'' overseers and by the master, one part of which shall be deposited with the town clerk' or clerk of the peace, and be safely kept by him for the use ot the minor. 9. ' All considerations of money or other things paid or Money, *c. paid allowed by the master upon any contract of service or mastertobe''fbr apprenticeship made in pursuance of this chapter, shall be *'"' apprentice, paid or secured to the sole use of the minor thereby bound. 10. Parents and guardians and overseers shall inquire Duty of parent'* into the treatment of all children bound by them respec- f "er^e'e?! re- '' tively, or with their approbation, and of all who shall have a?en'b"ound'out been bound by their predecessors in office, and defend them from all cruelty, neglect and breach of contract, on the part of their masters. 11. In case of any misconduct or neglect of the master, ^°^^o^Ji"f^lf' a complaint may be made in writing by the parents, guar- master. dian, or overseers, to any two justices of the peace for the 54 426 MASTBKS, APPRENTICES AND SERVANTS. [PART 11. Chap. 122. Hearing, and power of justi- ces to afford redress. Proceedings where com- plaint is dis- missed. Appeal for per- sons aggrieved. Apprentice ab- sconding or guilty of mis- conduct, how punished. county in which the master resides, setting forth the facts and circumstances of the case ; and the justices, after hav- ing duly notified the master, shall proceed to hear and determine the same. 12. After a full hearing of the parties, or of the com- plainants alone, if the master shall neglect to appear, the justices may order that the minor be discharged from his apprenticeship or service, and give the costs of suit against the master, and may award execution accordingly, and the minor may be thereupon bound out anew. ' 13. If the complaint shall not be maintained, the justices shaH award costs for the master against the com- plainants, and shall issue execution accordingly, excepting, that in case of such a complaint by overseers, the justices shall not award costs against them, unless it shall appear that the complaint was made, without reasonable cause. 14. Any person feeling himself aggrieved by the order of any justices under the three preceding sections, may appeal therefrom to the supreme court at its next term in the county, and such appeal shall be granted and deter- mined in the same manner as in civil suits. 15. If any apprentice or servant bound as in this chap- ter, shall unlawfully depart from the service of his master, or shall be guilty of any gross misbehaviour, or refusal to do his duty, or wilful neglect thereof, any justice of the peace, upon complaint on oath made to him by the master, or by any one on his behalf, may issue his warrant to ap- prehend the apprentice or servant, and bring him before the same or any other justice ; and if the complaint shall be supported, the justice may order the offender to be returned to his master, or may commit him to the common jail for a term not exceeding twenty days, unless sooner discharged by his master. title xxxiv.] supreme court. 427 Chap. 123. PART III. OF COURTS AND JUDICIAL OFFICERS, AND PROCEEDINGS IN SPECIAL CASES. TITLE XXXIV. OF COURTS AND JUDICIAL OFFICERS, TRUSTS AND ESCHEATS. OHAPTEE 123. OF THE SUPREME COURT AND ITS OFFICERS. 1. The supreme court shall have within this province Powers of the the same powers as are exercised by the courts of queen's ""P"'^"'® '^°^" bench, common pleas, chancery and exchequer in England. 2. The terms and sittings of such court at Halifax SJC^Srand dma- shall be held as follows ; that is to say, there shall be two tion of terms terms of such court at Halifax annually — one to commence " on the third Tuesday of July, and to continue for three weeks, if the business of the court shall require such continuance, and the other to commence on the first Tuesday of December, and to continue for four weeks, if the business of the court shall require such continuance ; and the court is authorized to extend each of such terms ^^'^i^^'o"- for a further period of three days, if they shall see fit so to do; and there shall be two sittings of the supreme f^^^^sf^j^'^^^'' court at Halifax annually, one to commence on the fourth mencementand Tuesday of October, and to continue for four weeks, if business shall require such continuance, and the other to commence on the fourth Tuesday of April, and to con- tinue for three weeks, if the business of the court shall require such continuance ; and the court or the presiding judge is authorized to extend each of such sittings for a Extension. further period of three days, if such extension should be deemed necessary, and for such further time as may be requisite in consequence of anj- trial being protracted beyond the periods now provided. At Halifax, on the ^^^''gn^fgfday first day of sittings, the judges shall have the same powers ^^'^^if^f^^^^g as in term, and where the sittings are closed by termina- toTbave same tion of the business, or of the allotted time, the judges ^e™" shall sit for three days, if business so long require, with 428 SUPEEME COUKT. [PABT III. Chap. 123. the same powers as in term — motions relating to the business of the then sittings to have precedence. '^i'™'*a't"end''"' ^' '^"'^^ grand jury shall attend at the sittings, and ance o!."'"^ ' shall uot bc required to attend at the terms of such court ; and all jurors required to attend sueh sittings shall be subject to the penalties for non-attendance now by law established. Sittings in 4. Thc suprcmc court shall sit twice a year in the wiilii heid,"lu' other counties at thc times and places following, viz. : LUNENBURG. At Lunenburg on the last Tuesday of April, and on the second Thursday after the first Tuesday of October. QUEENS. At Liverpool on the first Tuesday of May and on the first Tuesday of October, and to continue sitting for seven days, exclusive of Sunday. SHELBURNE. At Barrington on the second Tuesday of May. At Shelburne on the last Tuesday of September. YARMOUTH. At Tuskct on the third Tuesday of May. At Yai'mouth on the Tuesday next before the last Tues- day of September. KINGS. At Kentville on the first Tuesday of June, and on the second Tuesday of October. DIGBY. At Digby on the second Tuesday of June. And at Clare on the last Tuesday of September. ANNAPOLIS. At Annapolis on the third Tuesday of June, and the first Tuesday of October. HANTS. At Windsor on the first Tuesday of June, and the last Tuesday of September. COLCHESTER. At Truro on the second Tuesday of June, and first Tuesday of October. CUMBERLAND. At Amherst on the third Tuesday of June, and second TITLE XXXIV.] SUPREME COURT. 429 Tuesday of October ; aud to sit each term if necessliry Chap. 123. fourteeu days. CAl'E BKETON, At Sydney on the first Tuesday of June, and second Tuesday of Octob(?r. VICTOKIA. At Baddeck on the second Tuesday of June, and the third Tuesday of October. INVERNESS. At Port Hood on the third Tuesday of June, and the fourth Tuesday of October. RICHMOND. At Arichat on the fourth Tuesday of June, and on the Tuesday next after the fourth Tuesday of October. GUYSBOROUGH. At Guysborough on the last Tuesday of May, and the first Tuesday of October. ANTIG0NI8HE. At Antigonishe on the first Tuesday of June, and second Tuesday of October ; and to sit seven days each term, exclusive of Sundays. PICTOU. At Pictou on the Thursday next after the second Tues- day of June, and the Thursday next after the third Tues- day of October ; and to sit each term if necessary fourteen days. 5. The respective terms or sittings of the supreme Duration oi court in the preceding section mentioned, shall continue tfngs** ment'k.n- so long as the business shall require, but the same shall secUonT'''"''" not be continued longer than the Saturday before the day hereby appointed for opening the court at the next place to which the judge presiding at such court shall be about to proceed on his circuit, nor longer than the second Saturday after the first day of such terms or sittings respectively, except as otherwise provided in this chapter. 6. The presiding judge may direct one or more addi- J^s for ex- tional panel of jurors to be drawn and summoned to ™ ^ ''' ^°^^' attend such continued sittings, in the same manner as jurors are now drawn and summoned for the second week 7. The presiding judge, if such large arrears shall be judge may ad- found to exist at the end of the term or sitting of any iutoe^day circuit court that may hereafter be held by him, having requu""''''^ 430 • riUPREME COURT. [PART III. Chap. 123. regard to the time which other official duties may leave at the disposal of himself or some other judge, may, if he shall think fit, proclaim in open court on the last day of such term or sitting, notwithstanding the period now by law limited therefor, an adjournment thereof from such day of proclamation to some future day, being a Tuesday, to be then and there named by him, when such term or sitting shall be continued and held by adjournment accordingly. ScauTe°'suJh- §• The prothouotary of such court shall thereupon be^^bh^h^d '° with all Convenient despatch, cause such adjournment to be published by notice posted in his office and on the court house door. Prothonotaij 0. That officcr shall also, in open court on such day of to draw and , . , . ^ K -. i • , t summonjury proclamation, draw in manner as is now by law appointed, joHrned 'terra, a panel of petit jurors, consisting of the number of twenty- four, for the remainder of such adjourned term or sittings, and shall have the list signed by the presiding judge, and shall immediately thereafter issue writs of venire facias for the summoning of such jury, and deliver them to the sheriff of the county at least ten days before such adjourned day, and the sheriff shall cause such jurors to be summoned at least five days before such adjourned day. Attendance of 10. Thcjurors SO summoncd shall be bound to attend jou?ned^e^m". accordingly, and be subject to such fines and penalties, and entitled to such fees and compensation, as are now by law respectively provided in respect of petit jurors. "Causes to be 11. At such adjoumcd term or sittings, all jury causes, journedterm clvil and Criminal and those only, which shall be at issue niucTof" Mfli. and ready for trial when such proclamation of adjournment shall have been made, shall be tried and disposed of with- out any new notice of trial. term,w'h'en,Ac. 12. ITotwithstanding the last five sections, the said day of proclamation shall be considered the last day of the term, except as regards matters arising during the said adjourned term or sittings. In case of 13. In casc a judgc shall be prevented froHi arriving at nTa^'^in fa°me'' the placc ou the day appointed for holding the court or postponTcourt. such adjoumed term or sittings thereof, the sheriff shall give public notice that the c6urt will meet on the day next following such day; and shall continue to give such notice from day to day for three successive days, unless a judge shall in the meantime arrive. notto°pa''r*t''w^th ^^^ ' ^^c prothouotary shall not permit any original original papers paper to be taken out of his custody without a written judge's order. Order froui a judge, which order shall be filed. ^ot toTansmit ^^' '^^^® prothonotarics shall not transmit original pa- oriRinai papers pcrs to the officcrs ill Halifax without special order from a ordCTfti^gfye" judgc, but shall, whcu required by any suitor or his attor- nPTtified copies jjey^ provide Certified copies to be used in place of the originals. TITLE XXXIV. J EQUITY. 4-31 16. On the lirst day of each term the prothouotary and Chap. 124. clerk of the crown shall make out and deliver in open statements or court a correct statement of all lines which shall have been 5irsh'ed°by ^the" imposed by the court at the preceding term or. sittings, prothonotaries together with a statement of all such as have been collected o? term/and"^ and paid to him by the sheriff" since the last preceding mad™" ^° ^^ term ; and he shall annually return to the board of statis- tics a return in triplicate of all convictions had before, and of all fines and forfeitures imposed by, the supreme court, the amounts collected and the appropriation thereof, under a penalty of twenty dollars. 17. A calendar of the criminal causes shall be sent by dar^nTdeposT- the clerk of the crown to the grand jury in each term, tions to be^sent together with the depositions taken in each cause, and the jury;^in^dtet- names of the different witnesses ; and the indictments are madfii7t!"'° not to be made out, except in Halifax, until the grand jury shall so direct. 18. The prothonotary shall not be obliged to issue any ^q" ii'o°und"o'"' execution until the fees and costs due him on the iudgment issue execu- ■ J J ^ tions till fees are paid. are paid. ' 19. The commissioners for taking affidavits to hold to ^^""'t^^^i^'""^ bail and recognizances of bail in the several counties, shall davits and re- be appointed by the governor in council. bafi?hmv''!'fp-° 20. Such commissioners shall have authority to allow pointed. writs of certiorari, and also to take affidavits in causes mirBlonerr™ depending in court, and affidavits for holding to bail, and on which to found writs of attachment, and of summons against absent or absconding debtors, and specially to endorse writs in manner as now practised by judges of the supreme court, and subject to the same rules. They shall have the same power as the judges in relation to the ren- dering by bail of their principal, and they shall also have power to take the examination of witnesses aged, infirm, or about to leave the province, and to administer oaths to such witnesses. CHAPTER 124. OF PROCEEDINGS IN EQUITY. 1. In this chapter the term "thesupreme court" includes J^^^"J"°" °^ the equity judge and his courts; the term "the court" means the court of the equity judge, except otherwise expressed or clearly indicated; and the jurisdiction ex- pressed to be transferred to and to be exercised by the supreme court means the jurisdiction and powers of the judge in equity, alone, or with the associated judges, and 432 EQUITY. [part III. Chap. 124. of the judges of the supreme court on circuit, and of the supreme court bench on appeals. Absence of 2. In the illness or absence of the equity judge, or in equity judge, ^^ggg requiring attention in the country, the duties im- posed on him shall be exercised by the other judges as the case may require. Chancery juris- 3. The suprcmc court has jurisdiction in all cases ^npr°mfcoart. formerly cognizable by the court of chancery, and exer- cises the like powers and applies the same principles of equity as justice may require, and as has formerly been administered in that court. In all causes in the supreme court in which matters of law and equity arise, the court before which they come for consideration, trial or hearing, shall have power to investigate and determine both the matters of law and equity, or either, as may be necessary for the complete adjudication and decision of the whole matter according to right and justice, and to order such proceedings as may be expedient and proper ; and all writs issuable out of chancery now issue out of the supreme court. preml°couruo ^- ^^ ^^^ cascs formerly determinable in chancery and bo observed, now conductcd in the supreme court, the practice of the supreme court now or hereafter to be established, as far as it is applicable shall be observed, except in so far as altered or modified by statute or by rules made in pursuance of law in relation thereto ; in other cases the practice of the English chancery shall be adopted. coids "iJf '"" 5. All suits remaining undetermined when the chancery fcrred'^to 'the ^" court was abolishcd, together with all the rolls, records and ^nprenno court, proceedings of the court, are transferred to the supreme court; and such suits shall be there heard and deter- mined according to the provisions of this chapter, but with such modifications thereof as may appear to be right and proper, and for the attainment of justice in the hearing and trying of such suits so remaining undetermined in chancery. In such causes the proceedings up to the first day of August, 1855, shall continue of unimpaired efficacy and effect in the further progress of the cause, and the costs of all proceedings up to that period shall be allowed as if this chapter had not passed. rtlcnoe'Jf" ''°™" ^' "^^^ ^'^^^^ hcrctofore cognizable in chancery shall be commenced in the same manner as personal actions, by writ of summons, in which the cause of action and the relief or remedy sought by the plaintiff, shall be briefly and clearly stated ; and it shall not be necessary that the sanie should be set forth in any technical Or formal lan- guage or manner, or that any technical or formal statement should be used. ^^'^- 7. The plea ot- answer of the defendant shall in like manner be briefly and distinctly stated; and where the writ seeks discovery, and the plaintiff would heretofore TITLE XXXIV.] fiCjUITY. 438 in chancery have been entitled to discovery, the defendant Chap. 124. shall answer on oath fully according to the nature of the subject inquired of, although not specially interrogated. The defendant may at the same time, succintly plead any matter of defence, the subject of a plea in such case. "When the answer or plea contains new matter by way of avoidance, and not of denial merely, the plaintiff may reply succinctly. 8. Either party may demur to the pleading of the Demurrer. adverse party, on the same grounds ; and such demurrers shall be heard and determined on the same principles as obtain in the supreme court. 9. After plea or answer the plaintiff may brinig: the Hearing on , T_ •'^ . -ill • j_T plea, and cause to a hearing on writ, plea and answer, in the same answer. mianner as a suit has been rormerly heard in chancery on bill and answer ; but the plaintiff shall give the defendant reasonable notice that he does not intend to produce evidence. 10. In the final decision of cases on equity principles. Judgments. the court shall give judgment according as the very right of the cause and matter in law shall appear unto them, and so as to afford unto the parties a complete remedy upon the principles which prevail in courts of equity, and may be applicable to the particular case. 11. The court shall have power to direct enquiries into ma?r™°° *° matters of fact and account, by masters appointed by the governor in council, who shall act on the same principles and with the same powers as masters in chancery. Every Kepoi t. report of a master must be submitted to the court, by whom it may be confirmed, modified, or set aside, after hearing the parties. 12. Obedience to any judgment, rule or order of the enimaed^'^^°'" court may be enforced by attachment or execution. 13. In all cases wherein the subject in controversy, where^dTflnd- whether it be real, personal or mixed estate, be within the ™^ ■uri'sdietion province, or where a trust has been created therein, or of the court. which may affect such subject, defendants residing without the jurisdiction of the court may be served withsummons in like manner as if they resided within the province ; but before the issue of such summons the court shall deter- mine the form thereof, and the period to be limited for the appearance of the defendant after the service thereof, and no further proceedings shall be had against such absent parties till it shall be made to appear by affidavit to the court, that such service has taken place ; and the plaintiff shall be at liberty to proceed in such manner, at such time, and subject to such conditions as the court may see fit. 14. In cases of foreclosure when it shall be made to ^^^1^^^°^^°^^' appear by affidavit that a defendant is out of the province, an order may be made by the court or prothonotary for 55 434 •EQUITY. [part III. Chap. 124 Discretion of the court re- garding costs. Power of the court in cases of default of appearance. Several causes of action may be united. Rules regard- ing parties to such defendant to appear on a certain day therein named, whic]i order shall be published in the royal gazette, or in such other way, and for such time as the c6urt or protho- notary shall direct ; and the publication of such order shall be deemed good service on such defendant. 15. The court shall, in all equitable cases, have the same discretion in awarding or withholding costs, or directing* the fund out of which they shall be paid, that is now exer- cised by the court of chancery. 16. In cases of default for want of appearance and plea, or where all the material facts of the case which entitle the plaintiff to equitable relief are admitted by the defendant, the court may thereupon make such order as the right and justice of the case shall require, both as regards the relief prayed for, and the costs of the suit. 17. The plaintiff may unite several causes of action in the same writ, whether they be such as have heretofore been denominated legal or equitable, or both. The causes of action so united must accrue in the same right, and affect all the parties to the action, and must not require different places of trial. 18. Fo defendant in any suit shall be permitted to object for want of parties, in any case to which the follow- ing rules extend : Rule 1. — Any residuaiy legatee or next of kin may, without including the remaining residuary legatees or next of kin, have a judgment for the administration of the personal estate of a deceased person. Rule 2. — Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, may, without including any other legatee or person interested in the proceeds of the estate, have a judgment for the administration of a deceased person. Rule 3. — Any residuary devisee or heir may, without including any co-residuary devisee or co-heir, have the like judgment. Rule 4. — Any one of several persons for whom a trust is held under any deed or instrument, may, without includ- ing any other of such persons, have a judgment for the execution of the trusts of the deed or instrument. Rule 5. — In all cases of suits for the protection of pro- perty pending litigation, and in the nature of waste, one person may sue on behalf of himself and of all persons having the same interest. Rule 6. — Any executor or trustee may obtain a decree against any one legatee, next of kin, or person for whom a trust is held, for the administration of the estate or the execution of trusts. Rule 7. — In all equitable cases the court may require any other person to be made a party to the suit, and may TITLE XXXIV.J EQUITY. 435 make such, order in any particular case as lie or they may Chap. 124. deem just, for placing the defendant on the record on the same footing, in regard to costs, as other parties having a common interest with him in the matters in question. Rule 8. — In all suits concerning real or personal estate vested in trustees under a will, settlement, or otherwise, •such trustees shall represent the persons beneficially interested under the trust, in the same manner and to the same extent as the executors in suits concerning personal estate represent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested under the trust, parties to the suit with the trustees or executors, but the court may, upon consideration of the matters on the hear- ing, if he or they shall think fit, order such persons, or any of them, to be made parties. 19. It shall be competent for the court to dismiss any dlsmissTcf fw suit for equitable relief where the plaintiff shall not prose- ™nt of prose- cute it with eftect, in such reasonable time aS shall be ""°°' allowed him by an order in that behalf. 20. The court may make an order for the appointment Keceivei- may J. . 1 "^ ... -J. 1 ■ 1 T be appointed. 01 a receiver, when necessary in any suit, which order shall state the amount of security to be given, and the terms and conditions on which the assets shall be held by him. 21. All costs shall be taxed by a judge, and the fees ^^^''tf'"" °^ in equitable suits shall be taxed and allowed as in the title of fees. 22. Any person taking greater fees shall for such faldng^eaier oftence forfeit to the party aggrieved forty dollars, and fees. also the amount of such excessive fees. Actions for such forfeitures shall be brought in the county where the forfStures. offence was committed, and within six months next after the date of such oftence. 23. In all cases whenever security is required to, be security, uow given by any parties by bond or recognizance under any order of the court, except in the case of security for costs, the same shall be taken to the prothonotary of the court, eo nomine, and may be put in suit in the name of the prothonotary of the court for the time being. MOETGAGES. ' 24. It shall be competent for a mortgagor to bring Forccio.5iue. suit for the redemption of his mortgage, and for a mortgagee to bring suit for the foreclosure thereof, on the same principles as now obtain in the court of chancery. SPECIFIC PEKFORMANCE, ETC. 25. The plaintiff in any suit to be brought under this spe^ific_j)er- chapter, may claim from the defendant a specific perform- When party re- fuses to PXO' cute 436 EQUITY. [part III. Chap. 124. ance of his contract, and the court shall award or refuse " the same, according to the right and justice of the case, and the principles which obtain in courts of equity. 26. Where a party to any cause shall neglect or refuse, ^an instru- ^fter an Order has passed therefor, to execute or acknow- ledge an instrument, such instrument may be executed or acknowledged by a master, and when confirmed by the court, shall have the same efficacy as if made by the party so neglecting or refusing. der exe'J'uHoS'" '^'^ • '^^^ court shall havc power, if they or he shall see for return :of fit SO to do, upou the application of the plaintifi", in any action for the detention of any chattels, to order that execution shall issue for the return of the chattels de- tained, without giving the defendant the option of retain- ing such chattels upon paying the value assessed ; and that if the said chattels cannot be found, and unless the court shall otherwise order, the sheriff shall levy on all the defendant's lands and chattels, till the defendant render such chattels, or at the option of the plaintiff that he cause to be made, of the defendant's lands or chattels, the assessed value of such chattels — provided that the plaintiff shall, either by the same or a separate writ of execution, be entitled to levy for the damages, costs and interest in such action. chatlcls. WRITS or MANDAMUS. Action for man- 28. In all cascs in which the plaintiff shall claim that damus. the defendant ought to fulfil any duty, in the fulfilment of which the plaintiff is personally interested, the plaintiff may bring his action by issuing a writ of summons, claim- ing, either together with any demand which may now he enforced in such action, or separately, a writ of manda- mus, commanding the defendant to fulfil such duty. Form of writ. 29. The Writ in such action shall set forth sufficient grounds upon which such claim is founded, and shall set forth that the plaintiff is personally interested therein, and that he sustains, or may sustain, damages by the non- performance of such duty, and that performance thereof has been demanded by him, and refused or neglected. Pleading. 30. The plcadiugs and other proceedings in any action in which a writ of mandamus is claimed shall be the same in all respects, as nearly as may be, and costs shall be recoverable by either party, as in an ordinary action for the recovery of damages. Judgment and 81. In case judgment shall be given to the plaintiff that a mandamus do issue, it shall be lawful for the court, if it shall see fit, besides issuing execution in the ordinary way for the costs and damages, also to issue a peremptory writ of mandamus to the defendant, commanding him forthwith to perform the duty to be enforced. TITLE XXXIV.J EQUITY. 437 32. The writ need not recite the declaration or the Chap. 124. matter therein stated, but shall simply command the per- Formofexeou formance of the duty, and in other respects shall be in the *'"°- form of an ordinary writ of execution, except that it shall be directed to the party, and not to the sheriff, and may be issued in term or vacation, and returnable forthwith ; and no return thereto, except that of compliance, shall be allowed, but time to return it may, upon sufficient ground, be allowed by the court, either with or without terms. 33. The writ of mandamus so issued as aforesaid, shall Effect of writ. have the same force and effect as a peremptory writ of mandamus issued out of the court of queen's bench at Westminister, and in case of disobedience may be enforced by attachment. 34. The court may, upon application by the plaintiff, recT'the^Lu" besides or instead of proceeding against the disobedient be done at ex° party by attachment, direct that the act required to be Sefendant**' done may be done by the plaintiff, or some other person appointed by the court, at the expense of the defendant ; and upon the act being done the amount of such expense may be ascertained by the court, either by writ of enquiry or reference to a master, as the court may order, and the court may order payment of the amount of such expenses and costs, and enforce payment thereof by execution. 35. Nothing herein contained shall take away the Mandamus may jurisdiction of the supreme court to grant writs of manda- nlrftofore, *" mus as heretofore, nor shall any writ of mandamus issued out of that court be invalid by reason of the right of the prosQ,cutor to proceed by action for mandamus under this chapter. 36. Upon application, by motion, for any writ of man- f^mu'/""^ ""*"" damns in the supreme court, the rule may, in all cases, be absolute in the first instance, if the court shall think fit ; and the writ may bear date on the day of its issuing, and may be made returnable forthwith, whether in term or in vacation, but time may be allowed to return it by the court or a judge, either with or without terms. WRITS OF INJUNCTION. 37. In all cases of breach of contract or other injury suit for injunc where the party injured is entitled to maintain and has *'°°' brought an action, he may, in like case and manner as hereinbefore provided, with respect to mandamus, claim a writ of injunction against the repetition or continuance of such breach of contract or other injury, or the com- mittal of any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right ; and he may also, in the same action, include a claim for damages or other redress. 38. The writ of summons in such action shall be in the '"'"' "f s«™- same form as the writ of summons in any personal action ; .438 EQUITY. [part in. Chap. 124, Pioceedings. Writ of injunc- tion, when and liow issued, How enforced. Effect of plea entitling riglit to perpetual injunction. Order of the court in the' nature of an injunction. but on every such writ and copy thereof there shall be endorsed a notice, that in default of appearance the plaintiff may, besides proceeding to judgment and execu- tion for damages and costs, apply for and obtain a writ of injunction. 39. The proceedings in such action shall be the same, as nearly as may be, and subject to the like control as the proceedings in an action to obtain a mandamus under the provisions hereinbefore contained ; and in such action, judgment may be given, that the writ of injunction do or do not issue, as justice may require ; and in case of dis- obedience, such writ of injunction may be enforced by attachment by the court. 40. It shall be lawful for the plaintiff at any time after the commencement of the action, and whether before or after judgment, to apply ex -parte to the court, for a writ of injunction to restrain the defendant in such action, from the repetition or continuance of the wrongful act or breach of contract complained of, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating t9 the same property or right ; and such writ may be granted or denied by the court upon such terms as to the duration of the writ, keeping account, giving security or otherwise, as to such court shall seem reasonable and just ; and in case of disobedience such writ may be enforced by attachment by the court. 41. It shall be lawful for the detendant in any action to plead by way of defence thereto, any matter which would entitle him to have a perpetual injunction in a court of equity against the maintenance of such action ; and the matter of such defence shall, if proved, or if judgment pass by default, be a bar to such action, and the defendant shall have judgment thereon, with costs. 42. In any action in which a right shall be involved, it shall be lawful for the supreme court by a summary order, in the nature of an injunction, to be made on motion in the cause, to restrain, prevent or modify the exercise of such right by any pai'ty in the action, until a judgment shall be had establishing such right, or until such other earlier time as to the court or a judge shall seem fit, and on such terms, if any, as the court may require, and in like manner as it would have been competent to the court of chancery to have done, if such right had been contested in a suit pending therein ; and in like manner to renew, vary or set aside such order from time to time as the case may require ; and it shall be lawful for the court at the time of making such restraining order, if he or they shall see fit, or if it shall be required by the party against whom such order is made, to direct that an issue shall be submitted to the jury, who shall try the principal matter respecting the existence or extent of such right ; referring it to the jury TITLE XXXIV.] EQUITY. 439 also to try and inquire whether any damage, or injury has Chap. 124. been sustained by the party so injured, by the granting of such order, and the amount of such damage, if any, and such jury shall find upon the issue accordingly, and their finding shall be returned with the other findings in the case, and judgment and execution shall be given and had for the amount so found, together with the costs of the defendantoccasioned by the trial of such issue. EQUITAQLE DEFENCES. 43. It shall be lawful for a plaintiff" in replevin, or for EquitoWe de- the defendant in any cause in the supreme court in which, if judgment were obtained, he would have been entitled to relief against such judgment on equitable grounds, to' plead the facts which entitle him to such relief by way of defence, and the court shall receive such defence by way of plea, provided that such plea shall begin with the words, "for defence on equitable grounds," or words to the like effect. 44. The plaintiff' may reply, by leave of the court or a Replication. judge, in answer to any plea of the defendant, facts which avoid such plea upon equitable grounds, provided that such replication shall begin with the words, "for replication on equitable grounds," or words to the like effect. 45. "When such plea or replication on equitable grounds demand"' "^ is put in, the particulars of demand and set off" may be ob- tained as in other cases. 46. On the trial of any action of ejectment, the defen- Equitable de- dant may set up any equitable defence which would be sirup. ""'' available in the court of chancery, in case the subject mat- ter were under adjudication in that court ; and if the plaintiff shall claim title under a mortgage or other con- tract, or the defence be founded on any defeazance, bond for a deed, contract, or other agreement, whether the action be brought for the foreclosure of a mortgage, or otherwise, the defendant may give in evidence, tender, payment, set lender, pay- off or other equitable defence, if he shall, at the time of when'piea°da'b]e filing his plea, or subsequently by leave of the court, who are hereby empowered to grant sUch leave in any stage of the cause, have given notice in writing of the nature of the defence on which he intends to rely ; and particulars of particulars of demand and set off" may be obtained as in other actions ; demand' and and in all such cases the defendant having the right of ^^ redemption or equitable estate in the lands, may pay to the plaintiff or bring into court the amount dtie with costs ; ^^g]^^ ^f j.^. and thereupon, the court, by tule, may compel the plaintiff fg^^'^p^^""' "" to make such conveyance or release as tnay be agreeable to equity. 47. If the justice of the case fequil-e it, the court or a ^Stion°'i/p?o'; judge may make an order for the sale of the premises oeeds. sought to be recovered or any part thereof, and for the 440 EQUITY. [part III. Chap. 124. Non-compli- ance with order for sale or re- conveyance. Writ of posses- sion not issued without leave. Proceedings in equity, when barred by pro- ceddings here- under. application of the proceeds, and for the release or other re-conveyance of the same, or any part thereof, at any time before the sale — provided always that before the court or a judge shall order such distribution of the pro- ceeds, it shall be made appear that all persons interested have had reasonable notice, by advertisement or otherwise, of such application. 48. In case the plaintifl" or any defendant shall refuse or neglect to make or perfect any such conveyance, the court may order such conveyance to be made by the sherift, which when confirmed by the court or a judge, shall have the same operation and effect as if made by a master of the court of chancery under a decree or order of that court. 49. Where the proceedings are had under the three last sections, no writ of possession shall issue without the leave of the court. 60. Any defendant having an equitable defence of which he might avail himself under section forty-six, and neglecting or refusing so to do, shall not be at hnerty, without leave of the supreme court to apply for relief in equity. Conrt may or- der sale of real estate of infants, when. REAL ESTATE OF INFANTS. 51. An infant seized of real estate, or entitled to any term of years in lands, may, by his next friend or guardian, petition the court for an order to sell or dispose of the said property, who shall proceed in a summary way, on afSda- vits, to enquire into the merits of such application ; and if the disposal of such property, or any part thereof, be neces- sary for the support of such infant, or for his education, furnished or to be furnished, or if the interest of the infant will be substantially promoted by such disposal, on account of any part of his said property being exposed to waste or dilapidation, or being wholly unproductive, or for any other reasonable cause, the court may, on the filing of a bond by such guardian or next friend, or other person approved of by the court, in case he be not already a law- fully appointed guardian, with such sureties, in such form, and on such terms and conditions as shall be directed, order the letting for a term of years, the sale, mortgage, or other disposal of such real estate or interest, whether possessory or reversionary, by such guardian or next friend, in such manner, and with such restrictions as shall be deemed expedient, but not in any case contrary to any lastwill or conveyance by which such estate or term was devised or conveyed to such infant, unless where the sup- port or maintenance of the infant shall have required or shall then require it, and it shall be so expressed in the order. TITLE XXXIV.] BQtJITt. 44l 52. All sales, leases, mortgages, or conveyances iiiade Chap. 124. in good faitli by any guardian or next friend, in pursuance Effect of con- of such order, shall be as effectual as if made by such gSSX- infant after he had attained the age of twenty-one years ; and it shall not be necessary in the conveyance to recite any part of the proceedings required by this chapter, but the same shall briefly refer to the order and the sale, leasing, or other disposal of such property. The party making the sale shall file a report thereof with the pro- thonotary of the county in which the lands are situate. 53. Upon any order for the sale of any property being pi? , ^ ■* . i' n t , T-.t in administra- sidcrcd by the judgc bcst qualified to administer in any next'of'kS^ estate shall desire it, the judge may associate with him in the administration, such person as he may think fit and proper for that purpose. An administra- 13. When administration of the estate of aily person d°/in°g out^^r dying out of the province shall have been granted in the TITLE XXXIV.] PROBATE COURT. 449 place where the deceased was last domiciled out of the Chap. 127. province, and the person to whom the same was granted the jirovmce shall apply to have administration of such part of the SUnSuon*'^' estate as may be within the province, he shall be prefei-ably '■^^ef '?rid '° *" entitled thereto, and the administration to him granted by ""^"^ "^"^ ' the judge of probate shall supersede any other adminis- tration thereof. 14. Every administrator shall before entering on the 4"^™'"' ^ond^ execution of his trust, give bond with two sureties to*be approved of by th« judge in such sum as he shall order, and in the form in the annexed schedule. 15. The judge of probate may, if he shall think fit, on may bl'requfr summary application and due proof that any bondsman on ne^y^bond'*" any administration bond has died, or become insolvent, order the administrator to enter into a new bond with two sureties, to be approved by the judge in such sum as he shall order ; and if the administrator shall not obey such order, may cancel his authority, and thereupon proceed to appoint a new administrator in the same manner as if such administrator were deceased. 16. The bond to be taken on such new administration. Bond to be in shall be as near as may be in the form of the administra- f°''™ °°^ "^« . ' ,i cate to be on justicc 01 the pcacc, truly and impartially to appraise the the warrant, property which may be exhibited to them according to the best of their knowledge and ability ; the taking of the oath shall be certified on the warrant of appraisement by the person administering the same. to'advOTfee^Fn ^^- ^very executor or administrator, previous to the the royal ga- payment of debts or distribution of the estate of the to be atSed" dcccascd, shall, by advertisement in the royal gazette form fc"ale*3° of newspaper, in all cases where the estate shall be under tat°™pJo?idld ^^g^* hundred dollars for one month, and in other cases against. for six mouths, call on all persons who have any demands upon the estate of the deceased, to exhibit such demands within one year from the date of the advertisement, — all which demands when exhibited shall be attested to by the party, or in his absence from the province by his agent, before the judge or registrar or a justice of the peace, and the affidavit shall be in the form in the annexed schedule, but no account shall be rejected by a judge in his final decree for any mere informality in the same, or the attestation thereof, unless he shall be satisfied that the party claiming to be a creditor shall have had notice of such informality. License for 26. lu casc the personal estate of the deceased shall be lf%tting^lf found by the judge on affidavit insufficient for the pay- wherl'plrsonai mcut of his dcbts and legacies, such judge, upon security I'ciinlto lly'^' ^^i°S S^^^^ ^y *^® administrator or executor to account debts. for the proceeds of the sale or sum obtained by mortgaging TITLE XXXIV.] PROBATE COUKT. 451 or leasing the same, may, at his discretion, grant a license Chap. 127. for the sale of the whole or such part of the real estate of the deceased as he shall deem necessary, or for the mortgaging or leasing thereof — provided such lease be for a term not exceeding twenty-one years. 27. ISTo such license shall be in force more than one Lieenoetobein _ ^ , _ ^ force for one year after the gra'ntmg thereof. year only. 28. Every license shall be entered in the registrar's License to be book, and a copy thereof duly certified by the judge or registered. registrar shall be registered in the office of the registrar of (deeds for the county or district in which the real estate may lie, and such certified copy, or a copy thereof from Sf be^lvideSoe. the registry certified under the hand of such registrar of deeds, shall be evidence of such license in all courts, without further proof. 29. The security to be given by any executor or ad- fioens6^o*^°be rainistrator before the granting of such license, shall be a given by bond. bond to the judge of the court of probate in a sufficient penalty with two sureties to be approved by him, the bond to be in the form in the schedule. 30. In case any executor or administrator shall not in <=ase the ex- , .•'.,. 1 1 i- iT • -I ecatorie., shall give such security within a reasonable time, the judge not give the may, on the application of any person interested, order Judg" may ''ap- point another person to act. such executor or administrator having been first duly cited Serso™°"^''' to give such security within a period in the order to be named ; and if such executor or administrator without sufficient cause shall neglect so to do, the judge may appoint some other person interested in the estate to act as administrator for the sale of the real estate and appro- priation of the proceeds, upon his giving the security- required. 31. When any part of the real estate of the testator undevised real has been undevised, and the personal estate shall be insuf- bfloldtoTfo? ficient for the payment of debts, legacies and expenses, §t^™^iegades the undevised real estate shall be first sold, unless it shall Re- appear from the will that a different arrangement of his assets for the payment of his debts or legacies was intended, in which case^hey shall be applied for that purpose in conformity with the provisions of the will. 32. "Where the executor or administrator shall have Notice of sale obtained a license for the sale of the real estate of the byif*ente,'how deceased, he shall give public notice of the time and place ^''^''"' thereof by advertising the same in the royal gazette at Halifax, and by posting up notices thereof in the township or settlement wherein the lands lie, for thirty days previous thereto, and shall proceed to sell the same by public auction at the time and place named in the advertise- ment. ^^^^ 33. Where the executor at the time appointed for the ad^ourVsaie if sale shall deem it for the interest of all persons concerned t^^rof adj'ouni- therein that the sale should he postponed, he may adjourn ^i™n.'° ''*' 452 PROBATE COURT. [PAET III. Chap. 127. it for any time not exceeding thirty days, and shall give ■ notice of such adjourned sale by posting up notices thereof. t^tol'ie!!n- ^4- The affidavit of the executor or administrator, donee of skie. made before a judge or registrar of probate or justice of the peace, and filed in the registry within one year after the sale, shall be admitted as evidence of the time, place and manner of the advertisement and notices. b'e''1?s''eftb'ctSai ^5. All deeds of conveyance, mortgages or leases, aa if made by made pursuant to the license, shall have the same effect as if made by the deceased. Administrator 36. If the deccased at the time of his death, were liable red'tooonvey to pcrform any contract for the sale and conveyance of any testl'tetal'TOn- real or personal estate, the judge shall have power to sale!^'^ '™ ^^"^ declare the administrator trustee thereof, so far as may be necessary for performing such contract ; and thereupon such administrator shall have power to execute the neces- sary conveyances for the performance thereof, and shall hold the purchase money, subject to the same rules of descent and distribution, as if the conveyance had been made and the consideration received in the life time of the deceased. SdI7ehr!ptor. ^'^ • Evcry Conveyance made under the provisions of this chapter, and registered in the county where the lands lie, shall be taken as presumptive evidence that all the proceedings on which the same is founded were rightly had. deSlm'fnon' ^^' ^^ ^"^ trustcc or executor, empowered by any last may execute a will and testament to sell and convey lands of the testator, agreed upon by shall havc heretofore made and entered into any contract eeStor'* '^^" for sale thereof, but shall have died before the full payment of the purchase money, and without having executed a conveyance, and there be no executor or administrator of such testator, the administi-ator de bonis non of the testator, may, upon receipt and payment of the purchase money, execute a conveyance of such lands to the purchaser or any other person entitled thereto. Admmistrator 39. jf such trustcc or cxccutor shall ha-«e brought an may 1 eooTer ' action On such coutract or agreement against the purchaser, ^deceased ex- and obtained a judgment therein, the administrator de bonis ceutor, io. ^j^jj q£ ^^^ tcstator, may take proceedings to recover the amount due on such judgment under the one hundred and thirty-fourth section of chapter one hundred and thirty- four, part first; and shall, for that purpose, be held to represent the said trustee or executor. derliTiS of' '^^^ ^hc judge of probatc may order the real estate of , real estate the tcstator Or intestate, wherever situate within the pro- ?f"km.^ °*^ vince, to be divided among the next of kin, and if devised according to the terms and conditions of the will, if terms and conditions be therein expressed, if otherwise, then according to the provisions of this chapter — as in cases of intestate property; and whenever the share or interest of TITLE XXXIV.] PROBATE COURT. 463 any sucli person being next of kin, shall have been trans- Chap. 127. ferred, the purchaser shall have the same rights and privileges, and be subject to the same liabilities as the person whose share he represents. 41. In cases where the estate is divisable amone: the where division ,., , p , --,.,."-01 portion ean- children ot a testator or intestate, and such division, or the not be, made division of any particular portion thereof, cannot be made dice.°" '^^^'^^' without prejudice to the whole estate, he may order the whole, or after the division of the residue, the whole of such particular portion to the eldest son, and on his refusal, to the other sons successively, and on their refusal, to the eldest and other daughters in like succession ; such son or daughter paying to the other children their shares of the value of such estate, or giving satisfactory security for the payment thereof with six per cent interest thereon. 42. Such order for division shall be made upon the ^^^I'^^l^^i^^ application of a party interested, and guardians, when for minors. necessary, shall be appointed for such of the parties as shall be under age. 43. "Where there shall be a claim for dower, or the Assignment of widow shall claim any individual share or right devised by tViow. *"'' '° will, the judge of probate shall have power to order the same to be assigned and set off. 44. All divisions and valuations of real estate made J^ga/Sate"^ under order of the judge of probate, shall be made by three howtobemaae. disinterested freeholders, to be appointed by the judge for that purpose, who shall, before acting, be sworn by the judge or registrar, or by a justice of the peace, to the faithful discharge of their duty. 45. !N"o such division or valuation shall be valid unless Two freehoid- two at least of the persons so appointed and sworn shall cur 'fadiy'isfou concur, and the judge shall approve thereof. 46. Before such approval shall be given, the parties Notice to be interested, or in case one or more of them are minors the filfonappToveci guardians, shall have eight days notice of the time and ^^J'^'^b^' place appointed to consider the same ; and where any one or more of the parties interested shall be absent, or cannot be personally served, publication of such notice in the royal gazette, at least four weeks before the day named, shall be considered sufficient service of notice. 47. The judge shall confirm or reject the division, or ^''i'^/^^jj'gogtf make such amendments thereof, as he may deem right, "'" ^^ ^^ and shall tax and award the costs of such division and valuation, and apportion the same among the parties interested in the estate as he shall deem just; and such taxation and order shall have the same effect, and be enforced in the same manner as the taxation and order mentioned in the sixty-second section. 48. "Where such division is made the judge may, if J^^^^e^by *** necessary, order a surveyor to prepare a plan to be filed judge. with the registrar. 454 PROBATE COUET. [part III. Chap. 127. When sale of divisable estate cannot be made without preju- dice judge may order the wliole to one heir on liis giving seen* rity, &c. Order, how made, Ac. Age of heirs how ascer- tained. Desperate debts. Executor, ic, a creditor to file accounts one month be- fore distribu- tion. Naming a debtor execu- tor shall not extinguish a debt. Estates, when and how de- clared insol- vent ; order of insolvency may be pleaded ; power of judge 49. In cases where the estate of a testator or intestate iff divisible amongst the next of kin, being collateral heirs, and such division, or the division of any particular portion thereof, cannot be made without prejudice to the whole estate, the judge of probate may order the whole, or, after the division of. the residue, the whole of a particular por- tion, to the eldest of the heirs that may be in the province, and oh his refusal, to the other heirs so being in the pro- vince, successively, in the order of their ages, such heir paying to the other heirs their shares of the value of such estate, or giving satisfactory security for the payment thereof, with six per cent, interest thereon. 50. Such order shall be made, and guardians appointed, and other proceedings had, as prescribed by the forty- second section. The relative ages of the heirs shall be ascertained by the affidavit of the applicant as to the facts, according to his belief. 51. An executor or administrator, at any time after the lapse of twelve months from the issuing of probate or let- ters of administration, may file an affidavit in the registry of the court, with a schedule of desperate debts attached, containing the particulars of dates, names, and amounts, setting forth therein that such debts are, as he believes, desperate, and that he has been unable to collect the same ; and thereupon the j udge of probate may make an order for the equitable division of the same amongst the credi- tors, next of kin, or other parties entitled, or may appoint auditors for that purpose, whose judgment shall be subject to confirmation by the court ; and on the division which may be ordered by the court, the parties to whom the debts are allotted shall have all the rights and remedies for the recovery in their own names of the debts assigned, which such executors or administrators possessed. 52. When the executor or administrator shall be a creditor of the estate, he shall file in the office of the regis- trar at least one month before the distribution of the estate, a true and correct account of all dealings between the deceased and himself, verified by affidavit in the form in the annexed schedule. 53. The naming of any person executor in a will shall not operate as a discharge of any claim which the testator had against him, but such claim shall be included as part of the estate of the deceased in the inventory, and such executor shall be liable for the same as for so much money assets of the estate in his hands at the time when such debt or demand shall be due, and shall apply and distribute the same as part of the personal estate of the testator. 54. Any executor or administrator may make oath before the judge of probate who has granted administration of the estate, that he believes the same to be insolvent, and the judge may, if he shall think fit, by an order for that TITLE XXXIV.] PROBATE COURT. 455 purpose, declare the estate insolvent, and the executor Chap. 127. may plead such order in bar of any legal proceedings to adjust claims instituted aarainst such executor or administrator for anv ™ pe'":>o>i; , „ o. . ■ , J 1 1 T 1 -Ti appeals in such cause ot action accruing against the deceased ; and all cases. proceedings shall thereupon be stayed for such time as the court or a judge may order : the costs to be in the discretion of the court. 55. Upon being required by the judge of probate on Proceedings the petition of any creditor or other person interested in' io.'require'd to"^ any estate to render an account or settle the estate, the coSntTcitatlons, executor or administrator may apply to the judge for a {'heVfonS'^ic citation requiring the creditors and next of kin of the deceased, and the legatees, if any, to appear before him on a day therein to be specified, and to attend the settlement of such account, the adjustment of the clainls of credi- tors and all parties interested, and the settlement of the estate; and where the judge shall decide against any creditor, or other person interested, in respect of any controverted claim, such creditor or other person may appeal to the supreme court in like manner as is provided in this chapter in respect to appeals. Such citation shall be served personally on all those to whom it shall be directed living in the county or district of the judge, at least fifteen days before the return thereof, and upon those living out of the county or district, or whose residence may be unknown, either personally fifteen days previously or by publishing the same in the royal gazette at least four weeks before the return thereof. The citation to be in the form in the schedule. 56. It shall not be necessary to serve any citation pre- citations on paratory to the final settlement of an estate upon any ment, to*whom creditor whose debt shall have been paid, nor upon any di«cted. legatee or next of kin, unless the judge of probate shall order such service and shall in such order name the parties to be so cited. 57. Any literate person may serve such citation, and who may serve an affidavit in writing of the service having been regularly ?ice!'ho4 'eri- made, by the person serving the same, taken before the how tOTn^e"^*' judge or registrar or any justice of the peace, and filed in the registrar's of&ee, and specifying the time and place of service, shall be sufficient ; the expense of which service shall be borne by the party at whose instance the same was granted, or paid out of the estate or otherwise, as the judge may direct. * 58. Any person interested in the estate of the deceased aii persons in- may attend the settlement of such account and contest cS'lt'* the ^ the same, and any account against the estate, if not pre- flnai settlement, viously paid, and may obtain from the judge process to compel the attendance of witnesses. 59. On making his account, every executor or adminis- iJxeoutors, &ct trator shall produce vouchers for all debts and legacies vouoheraTmay 456 PROBATE COURT. [part III. Chap. 127. be examined upon oath ; sums under forty shillings, how vouched. Hearings may be adjourned ; auditors ap- pointed. Final settle- ment and allow- ance of account, of what facts it shall be conelu- siYe evidence. Costs, how al- lowed, taxed and recovered; review of taxa- tion provided. Executor, ic, after eighteen months to pay all debts and make distribu- tion. paid, and for all funeral charges and expenses ; and such executor or administrator may be examined upon oath by a master under an order of the court or by the judge of probate, touching any property or effects of the deceased which have come to his hands or knowledge, and the disposition thereof, and such executor or administrator may be allowed any item of expenditure not exceeding eight dollars, for which no voucher is produced, if such expenditure be supported by his own oath positively to the fact of payment, specifying when and to whom the same was paid, and such oath being uncontradicted. 60. Any hearing may be adjourned from time to time as shall be necessary, and the judge may appoint one or more auditors- to examine the accounts before him and to make report thereon under oath, subject to his confirma- tion, and may make a reasonable allowance to such auditors, to be paid out of the estate. 61. The final settlement of the account and the allow- ance thereof by the judge, or upon appeal, shall be con- clusive evidence against all creditors, legatees, next of kin of the deceased, and all persons in any way interested in the estate upon whom the citation shall have been served, either personally, or by publication as herein directed, of the following facts : First. — That the charges made in such account for monies paid to creditors, to legatees, to the next of kin, and for necessary expenses, are correct. Second. — That such executor or administrator has been charged all the interest for monies received by him and embraced in his account, for which he was legally account- able. Third. — That the monies stated in such account as col- lected, were all that were collectable on the debts stated in such accounts at the time of the settlement thereof. 62. The judge shall tax and award such costs as are allowed by law, to be paid by the party against whom the decision may be made in any matter contested before the court, and if against the executor or administrator, to be paid out of his own estate or out of the estate of the deceased, as may be just and proper, which taxation and order shall have the like effect as a judgment in a court of record, and execution may be issued by the judge in the form in the schedule. Any such taxation or order may be reviewed by the supreme court, or by any judge at chambers, upon notice given to the party in whose favor the taxation and order may be made, without any appeal being entered and perfected, and such order made therein as to such court or judge shall seem just and proper. 63. Every executor or administrator, at the expiration of eighteen months from the date of the letters testa- mentary or letters of administration, advertisement having TITLE XXXIV.] PROBATE COURT. 457 been made as hereinljefore prescribed, shall pay all such Chap. 127. legal and just claims as shall then be exhibited, so far as the estate of the deceased in his hands will enable him ; and shall make such distribution of the surplus as directed by the will of the deceased or by this chapter. 64. The judge of probate on the application, after Executor or ad - eighteen months from the date of the letters of adminis- may^brcfted to tration or probate, of any party interested as a creditor, "'^'^o""*- legatee, or next of kin, or as surety on the administration bond, may cite the executor or administrator to render an account, and to proceed to have the same settled accord- ing to law ; and on the settlement of any administrator's or executor's account, the judge of probate may proceed to adjust the claims of creditors, sujbject to appeal, as in other cases. The costs of the proceedings on citation to render an account shall not be allowed against the execu- tor or administrator, unless the party at whose instance such proceedings shall have been had, shall first have given ten days notice to such executor or aclministrator, requiring him to render such account. 65. After eighteen months from the date of letters of J^Srato? "'*' administration, anv executor or administrator may cite a may cite his po'Gxscutor or co-administrator, or co-executor to account before the oo-administra- judge; and thereupon the judge may compel the party *°'' *° '"^°°™*' cited to proceed to the settlement of his account, as be- tween him and the party at whose instance he was cited, or may order all the administrators or executors to proceed to the settlement of their accounts as prescribed in the fifty-fifth section. 66. In the settlement of the accounts of executors or i^ settlement administrators, or in any matter pertaining thereto, the court of pro- court of probate shall have the same power which was sl'mep'owe'^as enjoyed by the court of chancery. chancery. 67. In the settlement of any estate, the executors or commissions to administrators may be allowed over and aboye all such how adjusted.' actual and necessary expenses as may appear just and reasonable, a commission not exceeding five per cent on the amount received by them ; and the court further may apportion such commission among the executors or admin- istrators of any estate as may appear just and proper, according to the labor bestowed, or responsibility incurred by them respectively. 68. The judge of probate tnay order the surplus assets Distribution of remaining after the settlement of an executor's or adminis- ^^^^ "'^ ^^^^ '^' trator's account to be distributed among the parties entitled thereto. 69. In the settlement and distribution of the insolvent ]r"'S®^^°^ '^Ifi^x- estate of any deceased person, the whole of the real and entiai claims. personal estate remaining after payment of, the funeral charges, the necessary medical and other attendance on Mm during his last illness, and the ejcpeiises attendant on 58 458 PROBATE COURT. [PART III. Chap. 127. the settlement of the estate, shall be distributed, among those, creditors who shall have rendered their accounts duly attested, within the period before prescribed, in the following manner : First. — Clerks, domestic and farm servants, and rent, to be paid in fall for the last year previous to the death, when not more than a year's wages or rent is due ; the excess to be on the same footing as other claims. Secondly. — All other creditors to be paid in proportion to the amount of their respective debts. jSdgmente and '^^' ^othiug in the preceding section contained shall overclaims affect dcbts duc ou niortgagcs of real or personal estate, rd™y"the fa°st or On judgments registered in the lifetime of the deceased section. person, so far as the value of the property so mortgaged or lands bound by such judgment shall extend and no more, leaving the mortgagee or judgment creditor at liberty to claim as any other creditor for any balance that may remain due to him after the value of such property or lands shall have been realized ; or as affecting the widow'S dower in real estate, or to prevent any creditor who may not have exhibited his attested account, as before prescribed, from recovering his demands against the estate of any deceased person to such amount as may remain in the hands of the executor or administrator for distribution after the settle- ment of the estate ; nor to affect mortgages duly executed and recorded, and judgments docketed and duly recorded before the nineteenth day of March, one thousand eight hundred and forty-two. taav^noT bo^be 71. ISTo judgc or registrar shall be directly or indirectly counsel, Ac. employed or professionally concerned as counsel, attorney, solicitor, proctor, or advocate, for any party in any matter pending or to be brought before the court of which he is judge or registrar. haTilhecharge '^^- "^^^ registrar shall have the care and custody of all of books, &c.- papers and books to the probate office belonging, and in glstrsfr'liow^' casc of the death, sickness or necessary absence of the appointed. registrar, the judge may appoint and swear into office some fit person to oj0B.ciate in his stead until the s'tanding registrar shall be able to attend his duty, or until a new one be duly appointed. to bl'^ko't*'™'" '^^' ^^^ registrar shall keep a book for the registration registrar. of wills, a boolc for the registration of decrees and orders of sale of real estate, a book of acts or a book containing a short abstract of the proceedings of the court, properly indexed. wiushowregis- 74. Jq ^ the book for the registration of wills, all original wills are to be registered, and all interlineations, alterations or apparent erasures not noticed in the attesta- tion, are to be noted at the foot of the record, so as to be as nearly as possible an exact and liberal transcript of the original. TITLE XXXIV.] PROBATE COURT. 459 75. All decrees are to be regularly filed and regis- Chap. 127. tereu. Decrees to be~ 76. All letters of guardianship and letters ad colligendum fe're^'cr^'^"^'" are to be registered. Letters of guar- 77. Any person may appeal from any order, sentence, registered? decree, or denial of the iudsre of probate, to the supreme Appeals to su- j , ■ , J.J,- . ji J T ,1 , preme court court at its next sitting in the same county, or directly to provided ; time the supreme court in Halifax, whenever the supreme court appeSTSmd'^ shall meet in Halifax, previously to the sitting in the whentobefiied. county from whence such appeal is made; which courts shall have power to confirm, alter or reverse the same, and the appellant shall, within thirty days from the making of such order, sentence, decree or denial, enter his appeal, and file in the registry of the court of probate a statement of the grounds on which the appeal is sought ; and also, within ten days thereafter, shall file a bond to the judge, with two sureties to be approved by him, in the penal sum of two hundred and forty dollars, conditioned for the payment of such costs as may be awarded against him upon such appeal, and such appeal, when so perfected, shall be a stay of proceedings. 78. In case it shall appear that the ends of iustice -will cause inay be 1 J 1 ,1 1 iT 1 J • -I remitted- be promoted thereby, the appeal court may remit the cause to the probate court for a further investigation of facts, or more perfect consideration, with such instructions and upon such terms as may be deemed advisable. 79. When an appeal shall have been duly perfected. Hearing of the appellant may cause the same to be heard before any ^^^^'^ ' two judges of the supreme court, at chambers, upon a rule nisi there to be obtained ; and their decision shall in all cases be subject to appeal to the supreme court in term, security for the costs of such appeal being given by the party appealing to the satisfaction of the judges who shall have given such decision, and within a time to be limited by him or them. 80. In case the appellant, after fourteen days notice to Entering of the be given,him by the respondent requiring him to enter the ^^^"^ ' appeal for argument at chambers, shall neglect so to do, then the respondent shall be entitled to enter the same, and it shall be in the discretion of the judges to grant or refuse a rule nisi, to confirm the decision of the judge of probate. 81. Upon the appeal being perfected, and the fees for Judge to trans- making the copies hereafter mentioned being paid, the SipieTo/plpers judge of. probate shall immediately transmit to the court of'd°pea?. in which the appeal is to be heard and determined, a copy of the appeal, and of all such papers, documents and testi- mony-, as shall be ordered by the court, or any judge thereof at chambers, on the subject of the appeal, with a statement of the decision made by him, certified under his hand or that of the registrar, he court 460 PROBATE COURT. [PART III. Chap. 127. 82. If upon the appeal haviDg been perfected, and the Court of .ipre.-!! ^'^'^s allowed in the previous section tendered, the judge of Di.'.y m.fyr,-a ppobatc shall nefflect to transmit the appeal and papers return ot papers -^ ., ^ o .^ .i i • x on neglect of conuccted therewith to the court wherein the appeal is to ji'dge -jjg iieard and determined, on due proof thereof the court may proceed to enforce the return by attachment as for a contempt. rauselhelu ^3. The supremc court or any judge at chambers, upon aRowe'fi within'' ^pccial CEUsc shewn at any time within six months after six months the time limited for entering and perfecting an appeal, after the ordi- ^^ i i j. • j. • narytime has may allow an appeal upon such terms as may seem just, in eiapseri. which case the same proceedings shall be had as if the appeal had been originally entered in the court of probate. aiiowed'by tiie ^4. Thc court lu which the appeal is heard may direct coitrt of appeal the costs thereof to be paid personally by the parties may issue: against whoixL such costs shall be awarded, or out of the wh" nVo bl p?o''- estate which may be the subject of appeal. The payment scented. ^f ^-j^Q costs may be enforced against the appellant by execution or suit on the bond, and against other parties by execution ; but no such suit on the bond shall be com- menced without the order of the court of appeal or a judge thereof. Feigned issues 85. The coui't of appeal when anj' matter of fact shall ed.'' ^ "' arise, may, if they think fit, order a feigned issue to be made up, and prescribe the manner of making the same, and direct the county in which the same shall be tried; and shall have x^ower to grant new trials thereof, and to order by whom, and in what manner the costs attending the determination of the issue shall be paid : the final determination of such issue shall be conclusive as to the facts therein controverted. Forfeiture for 86. Any exccutoi', kuowiiig of his being named as Sfe'euo^prove such, and neglecting, without sufficient reason, to cause a will. jT^-^Q ^y^iY ^Q ]-,g proved and recorded in the probate court of the proper county, or to present such will and declare his refusal of the executorship, shall forfeit, after the lapse of the first month, twenty dollars for every month he shall neglect his duty therein, which may be recovered to his own use by any person having an interest in the estate of the deceased, in an action of debt. Ad-ninistra-^ 87. Upoii the refusal of the executor to accept the will annexed ti'ust, the judge of probate shall commit administration of wherelileoutor the cstatc, with the will annexed, to those who would have refuses to act, ]3ggj^ eutiticd to the administration thereof if the deceased had died intestate. maybeOTdered ^^- 'p'^^ Supreme coui't Or court of probate may, if they to give bonds shall think fit, upon summary application and upon due pfa'iStVf°raste. proof that the executor is wasting the estate, order the executor to give security for the performance of his duty, and if he shall not obey such order shall cancel his autho- rity ; and the court of probate shall thereupon appoint TITLE XXXIV.] PROBATE COURT. 461 another executor, who shall have full authority to proceed Chap. 127. with the settlement of the estate. 89. The judges of probate shall have power to issue judge cinp.nv- such process as may be necessary for the discharge of the eomVi^isOTy" trust reposed in them, and also to issue subpoenas to compel '""{i^ff Vot cot" the attendance of witnesses and the production of papers tempt. material to any enquiry pending before them. The party ' refusing or neglecting to obey such process, or any order or decree of a judge of probate, maybe punished as in the supreme court tor a contempt ; and all such process shall be executed by the officer to whom it is directed. 90. All compulsory process shall be directed to the compulsory sheriff or his deputy, or to the coroner. S?ected.'"'"' 91. No letters ad colligendum shall be granted by the Letters ad com- judge without due security being first taken. |ranSd.''°" 92. No judge of probate shall permit an original will wuis vyiien and ,,. °j_i ,_ ly n ^ • '',1 how taken from to be in any case taken out oi the province, or to be re- otHce. moved from the office but for the purpose of being pro- duced in the supreme court, and then only on security being taken for its safe custody and return. 93. It shall not be necessary in any case for a party to Parties may tiia employ a proctor or advocate in the court of probate, but ^ocltltheii^ " every party may prepare and file his own papers and advo- °"" '^''"^<=«- cate his own cause therein. 94. The value of an estate in reference to the fees ]Day- vaiue of estates able thereon, shall be ascertained in the first instance by eltimattd 'TiT the oath of the administrator or executor to his belief of stane'lf.^' '"" the value thereof, to be regulated, however, eventually by the actual amount. 95. When the authority of an executor or administra- a previous ex- tor shall cease he may be cited to account before a judge besotted b/ws of probate, at the instance of the person succeeding to the aorafmt^ie" administration of the estate. 96. The judge of probate may, on summary applica- Judge may tion, if he shall think it for the interest of the estate so to b?paw gy ex-° do, order any money in the hands of the executor or ad- mMstratorfnto ministrator to be paid into any chartered bank in this pro- -'' ^ank. vinee, to the credit of the estate ; and when money shall be so paid the bank shall not permit the same to be with- drawn without the order of the court of probate. 97. When any provision shall be made by any will for a speciflo le- specific compensation to an executor, the same shall be flnL'tion to'an deemed a full satisfaction for his services in lieu of any t^ssTeniu^aed commission or his share thereof, unless such executor by of^'o^misslo™ declaration under his hand, filed in the court of probate, shall renounce all claim to such specific legacy. 98. A judge of probate shall have power to appoint a ^^[^^^ate, ap- surrogate during any temporary absence, subject to the ap- powers of,4c. proval of the governor in council ; and such surrogate during such absence shall possess all the powers, and dis- charge the duties, of the judge of probate. 462 PROBATE COURT. [PART III. Chap. 127. 99. "Where any oatli prescribed by this chapter is re- .ludge may au- quircd to be taken before a judge or registrar, and, the 'o°admim8fe°"° P^rty to make such oath lives out of the province or more oath in certain than thirty miles distant, or by reason of age or sickness IS unable to appear before such judge or registrar, the oath of such party taken in writing before any person duly authorized by such judge, shall have the same eiFect as if taken before the j udge or registrar. Forms to be IQO. The forms in the annexed schedule shall be oh- serve . gervcd as near as may be in the court of probate, SCHEDULE. Form of affidavit to he annexed to any account or claim ren- dered by a creditor to an executor or administrator. A. B. of , maketh oath and saith, that the fore- going paper writing doth contain a true and correct account of his demand against the estate of , de- ceased, and that all the credits to which the deceased was honestly and justly entitled, so far as deponent believes, have been given on said account ; and that the balance of is justly and truly owing to deponent. A. B. Sworn before me at , this day of , A. D., 18—. Citation. Nova Scotia. County of , ss. To A. B. of , in the county of , Greeting : Whereas, A. B., executor [or administrator, or other person interested as the case may 6e,] hath prayed that you may appear and [here state in short forms the object,'] you are therefore required to appear before me at a court of pro- bate, to be held at , within and for the said county, on the day of next, to [here state in short forms the object.'] Given under my hand and seal of the said court, this day of , 18 — . C. D., judge of probate. - E. F., registrar of probate. Attachment. Probate court. County of , ss. To the sheriff of . Greeting : You are hereby required to attach by his body, if found within your bailiwick, and him safely keep, so that you may have his body before me at my office in , on the day of next coming, to answer concerning TITLE XXXIV.] PROBATE COURT. 463 a contempt lately by him committed in neglecting to OiTAP. 127. appear before me pursuant to a subpoena issued in that behalf, [or in case it mtty be for refusing to testify after appear- ing, for refusing to testify before me] in a certain matter lately pending before me as a judge of probate for said county, and have then there this writ. Given under my hand this day of , 18 — . C. D., judge of probate. E. F., registrar. Execution. Probate court. County of , ss. To the sheriiF of the said county of . Greeting : You are hereby required \or in case it he an alias execu- tion, as before,] to levy of the goods and chattels of , within your bailiwick, the sum of , for costs awarded in favor of , in a certain proceeding lately had before me as judge of probate in and for the said county, and have that money before me at my office in - — —— , within •thirty days from the date hereof, to be rendered to the said , and for want of such goods and chattels whereon to levy you will take the body of the said - — — , and him safely keep until the said sum and your costs of levying this execution be paid, and make return hereof within thirty days from the date hereof. Given under my hand this — — day of — — — , 18 — . C. I)., judge of probate. E. F., registrar. Wo.rrant of appraisement, Fova Scotia. County of-- — , ss. To A. B., &c. Greeting : You are hereby appointed and empowered to take an inventory of all the real estate, goods, chattels and credits, of which - -"- - ■-- , late of "" ' ' ■^ , in the county aforesaid, died seized or possessed within the province, and accord- ing to your best skill and judgment truly to appraise the same, which, when completed, you are to deliver to the executor or administrator of the said deceased, to be re- turned together fvith this warrant, in three months from the date hereof. Given under my hand this day of , 18 — . C. D., judge of probate. E. E., registrar. S.S. ' The above named appraisers personally appeared before 464 PROBATE COURT. [PART III. Chap. 127. me and made oath that they would faithfully and impar- tially perform the services to which they are appointed by the above warrant. Bond on appeal. (The bond to be taken for dollars, payable to the judge of probate in the same manner as administration bonds, and conditioned as follows :) Whereas the above boundeu hath appealed from the decision of the judge of probate, made in a certain matter now pending before the said judge. !N"ow the condition of this obligation is such that if the said shall well and truly pay such costs arising from such appeal, and to such person as the court of appeal may order and direct, then this obligation to be void, otherwise to remain in full force. Signed, sealed and delivered \ in the presence of . / Administration bond. Know all men by these presents, that we, A. B. C. D., and E. F., all of , in the county of , are held and firmly bound unto , judge of probate for the county of , in the sum of , to be paid to him or his successors in office, for which payment we bind ourselves, our and every of our heirs, executors and admin- istrators, jointly and severally by these presents, sealed with our seals, dated this day of , 18 — . The condition of this obligation is such, that if the above bounden A. B„ administrator of the goods and effects of , deceased, do make a true inventory of the goods and effects of the deceased which have or shall come to the possession or knowledge of the said A. B., and the same do exhibit into the registry of the court of probate for the county of , on or before the day of next ensuing ; and the same goods and effects, and all other the goods and effects of the deceased, at the time of his death or which at any time after shall come to the pos- session or knowledge of the said A. B., do administer according to law, and further do make a true account of his administration, on or before the day of , in the year of our Lord one thousand eight hundred and ; and all the residue of the said goods and effects which shall be found remaining upon the said administra- tor's account, the same being first examined and allowed by the judge of the said court, shall deliver and pay unto such persons respectively as the judge by his decree shall appoint ; and if the said A. B., administrator, shall per^ form all orders and decrees made by the court, touching the goods and effects of the deceased, and if it shall here- TITIiK XXXIV.] POWER OF MAGISTRATES IN CIVIL CASES. 465 after appear tliat any last will -was made by the deceased, Chap. 128. and the same be proved and allowed by the court, then if the above bounden A. B., being thereunto required, do deliver the said letters of administration to the said judge, or his successor in office, then this obligation to be void. Signed, sealed and delivered \ in the presence of . | Bond on sale of real estate. Know all men by these presents that we \_as in adminis- tration bond.^ Whereas, license has been granted by the above named judge of probate to the above bounden executor of. the last will and testament [or administrator of all and singular the goods, chattels, credits and estate, as the case may be,'] of , deceased, to sell [or lease or mortgage, as the case may be,] the real estate of the said deceased for payment of his debts and legacies. Now the condition of this obligation is such, that if the said A. B., executor [or administrator] as afore- said, shall faithfully apply all monies arising from the sale [lease or mortgage] of any of the real estate of the said deceased, or otherwise from the rents and profits thereof, in payment of the debts or legacies of the deceased, agree- ably to law, and shall truly account for the same in his administration account, before the court of probate for the county of or other court of competent authority in that behalf; and shall pay any surplus monies which may be found remaining in his hands upon such accounting unto such person as the court of probate fpr the said county of or other court of competent authority in that behalf shall by decree appoint, then this obligation to be void. Signed, sealed, and delivered "I in the presence of . J OHAPTEE 128. OF THE JURISDICTION OF JUSTICES OF THE PEACE IN CIVIL , CASES. 1. In actions for debt, where the whole dealing or cause Jarisdiction of of action does not exceed twenty dollars, one justice, and'$2o'roAwoYus^ where the whole dealing or cause of action exceeds twenty *'°'''*^''- dollars and does not exceed eighty dollars, two justices of the county wherein the defendant resides or wherein the debt was contracted, shall have jurisdiction; and they shall have power to sue executors or administrators. 59 466 POWER Of MAGISTRATES IN OIVIL CASES. [PART III. Chap. 128. Snit, how con- ducted. Jury in cnscs over $20. .^ceount with particulars, or note, to be filed before writ shall issue. Note to be filed on final judg- _ ment, &c.\ Particulars to be annexed to summon.'-'. Judgment by default on non- appearance. Writs directed to and served by constable. Copy .'of .sum- mons delivered to defendant five days before return. Return of writ; how made. Affidavit of ser- vice required when defen- dant does not appear. No arrest by capias for a debt under four dol- lars, nor for any debt unless under special affidavit. 2. The suit may be conducted and the amount collected upon the same rules in a summary form, and subject to a like defence as if the suit were brought in the supreme court. 3. When the whole cause of action exceeds twenty dollars and does not exceed eighty dollars, either party may obtain a jury by applying to the justices therefor at least two days before the return day of the process. No justice shall issue any writ of summons or capias unless the party applying therefor shall file a statement in writing contain- ing the particulars of his cause of action, or of the promis- sory note or other instrument on which he is suing, a copy of which shall be furnished to the defendant by the justice if required. When final judgment shall have passed thereon, the statement, note, or other instrument shall be filed with the justice, and in cases of appeal shall be trans- mitted with the other papers in the cause. 4. A statement in writing of the particulars of the plaintifl''s claim shewing both debts and credits, shall be annexed to the original summons, and a copy thereof to be prepared by the justice issuing the writ shall be annexed to the copy of such summons, and served therewith; and in case of the defendant not appearing the plaintiff shall be entitled to a judgment on default for the amount of his particulars. 5. All writs shall be directed to and be served and executed by a constable of the county wherein the writ is made returnable. 6. A copy of the summons or capias shall be delivered to the defendant at least five days when the amount is under forty dollars, and when above forty dollars ten days before the return day thereof, and the constable serving the same shall, if required, explain such writ to the defendant. 7. The constable shall make return of such writ, with his doings thereon, on or before the return day, and if required by the justice shall make an affidavit of the manner in which he has served the same, and the date thereof. 8. When the defendant does not personally appear, the justice shall not proceed in the cause unless the constable shall make an aflidavit that he has delivered a copy of such writ, with a statement in writing of the plaintift^'s particulars annexed, to the defendant, and if by the de- fendant at the time of service required so to do, that he explained the contents thereof to the defendant. 9. ISTo person shall be arrested for a debt under four dollars, nor for any debt, unless the affidavit contain an allegation that the plaintiff verily believes that unless such writ be granted the debt will be lost, and that he verily believes the defendant is about to leave the county. TITLE XXXIV.] POWER OF MAGISTIUTES IN CIVIL CASES. 4(i7 10. No female or minor shall be arrested on a writ of Chap. 128. capias issued by a justice. Female or mi- 11. Any person arrested on any such writ shall be ^"lerteVou"" admitted to bail by the officer in the same manner as in capias. other cases of arrest ; but in case the party arrested shall Td to°be admu- be committed to jail, the constable who committed him, t^'ito^aii, or the sheriff, on demand of the prisoner, shall take him before the justice or justices, when and where the cause is to be tried as often as may be necessary for the trial of the cause, that he may be present during such trial, and Jfumf'^tnT^-"' attend to the same, and shall have him in his custody during such time, and the constable or other officer so conveying him shall, if judgment be against him for any sum, unless he shall forthwith pay the same, re-convey him to jail ; but should the party so arrested appeal from any judgment, he shall, on perfecting his appeal, be forth- charged on "per with discharged from prison — the constable or other officer f'^'^t'Ds appeal. so conveying him shall be entitled to ordinary constable cont^ubiBV fees per mile travel, to be taxed in the costs on judgment against the unsuccessfal party ; and the sheriff shall not sh\°dffn'ot"ii-''" be liable for any escape of the party while out of his •*'®- actual custody under this section. 12. All causes shall be tried between the hours of ten ^'^l""?-. «;h«" JT1-T/. T-)ii.i n ptobe tried, o clock m the forenoon and six o clock m the afternoon of the day on which process is made returnable. 13. When from the number of causes to be tried a y^Jed byjSs- cause cannot be heard and determined within the time tiocsifDece.'-. specified in the preceding section, or when sufficient cause terms?™ on affidavit is shown, the justice may continue the cause till some further time, not exceeding thirty days, upon such terms of costs, security, or otherwise, as he may deem right ; of which continuance he shall notify the- parties, plaintiff and defendant. 14. When a iury has been demanded the justice shall •'"'■y'i""^'""- • . T'T 11 i.r»i* moned. issue a venire, directed to a constable not being or km to either party or interested in the suit, commanding him to summon a jury of three persons qualified to act as petit jurors from the township or place wherein the action is to be tried, to appear at the time and place therein to be specified. 15. Any juror so summoned who shall neglect to ap- Fine roriion- pear, and shall not show to the justices some sufficient [,"0"^™™ °' excuse therefor, shall forfeit one dollar, to be levied by warrant of distress upon his goods — such warrant to be issued by the justices upon the oath of the officer that he had summoned the juror at least twenty-four hours before the time appointed for his appearance. 16. The jury shall be sworn by one of the justices in '^|;.o°.J;'p'ro'Jeed- open court "well and truly to try the cause according to inss nntii ver- the evidence," and the evidence of the witnesses produced '"'' shall be made and delivered in the hearing and presence 468 Chap. 128, Cliallengo for cause may be made; jury how filled up. Proof en cath of oue witness, M here action not confessed. Plaintiff's proof confined to statement filed . Defendant to file or serve set- off two days he- fore return of writ. If defendant prove r.et-off equal to or ex- ceeding plain- tifPs demand proved, judg- ment accord- ingly. Where tender before suit and amount paid in, judgment for defendant. Successful party to havo costs. Execution, how issued in case of death of jn.'^tice. POWER Of MAaiSTRATES IN CIVIL CASKS. [PART III. of the justices and jury so empanelled ; and having heard the directions of the justices, the jury shall, if they require it, retire to some convenient room under the charge of some constable, or in case no constable shall be in attendance such other person as shall by such justices be appointed for that purpose, who shall be sworn "to keep such jury together without meat or drink, and not to suffer any one to speak to them, nor to speak to them himself, without leave of the justices;" and when agreed,'^ the jury shall return their verdict, whereupon judgment shall be given accordingly. 17. Either party may challenge for cause any of the jurors, and if the challenge be allowed, or any of the jurors do not appear, the justices shall direct the constables forth- with to summon any person duly qualified, and not liable to be challenged, to fill up the jury. 18. In all cases under this chapter, whether the defend- ant appears or not, and the plaintiff's demand or cause of action is not confessed by the defendant in person or in writing under his hand, the same shall be established on the oath of one witness. 19. The plaintiff" shall not be permitted to give evidence of anything not contained in the statement filed by him previous to the issue of the writ. 20. A defendant who intends to rely upon a set-off" shall file the same with a justice, or serve it on the oppo- site party, at least two days before the return day of the summons and before trial, and he shall be precluded from giving in evidence by way of set-off anything not con- tained in the statement. The justice, if required, shall furnish the plaintiff" with a copy thereof. 21. Whenever the defendant shall establish a set-off equal to or exceeding the demand proved by the plaintiff", or any other sufficient defence thereto, the defendant shall have judgment; if the set-off be less than the plaintiff's demand the plaintiff" shall have judgment for the residue only with costs ; and if the set-off exceeds the plaintiff's demand as proved, and the whole amount of such set-oft" do not exceed forty dollars, the defendant shall in that case have judgment for such excess. 22. When it shall appear that the defendant had ten- dered the amount due before suit brought, such defendant may before the trial pay the same into the hands of the justice, and shall thereupon be entitled to his costs, which shall be deducted by the justice out of the money so paid into his hands. 23. The party succeeding shall in all cases be entitled to his costs, 24. Where judgment has been awarded, the justice or justices before whom the suit was tried, and in case of the death, resignation, or removal of such justice or justices, any other justice, and when such cause has been tried TITLE XXXIV.] POWER OP MAGISTRATES IN CIVIL CASES. 469 before two justices, in case of the death, resignation or Chap. 128. removal of one of them, the remaining justice shall issue execution against the goods and chattels, and for want thereof against the body of such person, for the sum awarded, with costs. 25. All executions shall be made returuable in thirty Retumofexo- -, *' culion. days. 26. No execution shall issue after the lapse of one Execution not year from the time of giving judgment, unless it shall be one'year fro?n made to appear by affidavit that a balance is still due iepf^u'ce/tain thereon, and that due diligence has been used to levy the special cases. same, in which case further executions may issue for the balance at any time within four years after the rendering of the judgment. 27. The constable to whom the execution shall be Duty of c>on- delivered shall proceed forthwith to levy for the sum due, Lg exleution and shall take sufficient goods of the party against whom pro^CTt?""' the execution is issued to satisfy the same, and shall cause an advertisement, describing the goods taken, and specify- ing the time and place of the sale, to be posted up in two or more public places in the township or place wherein such sale is to be held, at least five days before the time appointed for such sale. 28. At the time and place so appointed, if the amount saio; how con- . -T 1 n^ ,• .1 -in 11 T ducted; return remain unpaid, the officer acting therein shall sell the of execution : goods at auction to the highest bidder, and shall forthwith p"ayaWe°rd-°'" return the execution, with his doings thereon, to the iaie;™oods°un- justice who issued the same, and pay the debt and costs ^("ored" '""^^" levied thereon to the plaintiff or his agent duly authorized, after deducting the fees of levy and sale, returning the surplus, if any, to the person against whom the execution issued or his agent duly authorized, or in his absence to the justice for the use of such party ; and if the goods shall remain unsold for want of buyers the constable may adjourn the sale for any period not less than twenty-four hours nor more than six days, and may in such case proceed to advertise anew, and sell the same after the return day of the execution. Immediately after such sale he shall make return and payment as above specified; and whatever goods remain unsold after satisfying the execution and expenses, shall be restored. 29. No constable shall, directly or indirectly, purchase constables not any goods at any sale made by him under this chapter ; '° p""''='^'*«^- and every such purchase shall be absolutely void. 30. For want of goods whereon to levy, the constable, ^°o;i"p°r°/ unless otherwise directed, shall commit the person against maybeoom- whom the same is directed to jail. "" 31. In case of an appeal the appellant, or in his absence Appeal and _ _ ^ ^^ ^ ^ 11 1 11 1 1 n 1 manner of pro- his agent, betore the appeal shall be allowed, snail make oeeding thevo- an affidavit in writing that he is dissatisfied with the judg- ""' ment and feels aggrieved thereby, and that such appeal is 470 POWER OP MAGISTRATES IN CIVIL CASES. [PART III. Chap. 128 Sureties xnny render appel- lant. Parties contin- ed to original case. Justice, to re- turn papers to prothonotary, unless by con- sent of the parties in writing. Fine for con- stable neglect- ing to return writ. Fine and pro- ceedings where constable ne- glects to return execution. not prosecuted for the purpose of delay, and shall file the same with the justice ; and the party so appealing, or in his absence his agent, shall, within ten days-after the judg- ment, enter into a bond with sufficient surety in a penalty double the amount of the judgment, with a condition that the appellant shall enter and prosecute his appeal and per- form the judgment of the court, or render the body of the appellant and pay the costs accruing on the appeal ; or shall before the first day of the term of such court pay the amount of the judgment together with all costs thereon subsequently aecniing, and such justice, or if the action be before two justices then the first one applied to therein, if thereto required, shall prepare the aflidavit and appeal bond ; which appeal, if applied for at any time within ten days after judgment in such cause, such justice or justices shall be bound to grant returnable to the next term of the supreme court in the county in which the trial was had ; and execution if not issued when the appeal is applied foi-, and the appellant or his agent shall make or be ready to make the aflidavit, shall be stayed ; but in such case, if the defendant have given bail, his bail shall continue liable, notwithstanding his personal appearance, imtil they shall render him, or he shall give an appeal bond within the ten days herein prescribed ; and if execution has issued before the appeal is applied for, it shall be stayed on the ^same being perfected, on the order of the issuing justice to be granted at the instance of the appellant, and duly served upon the constable. 32. The securities to the appeal bond shall have the power to render the appellant, and the sheriff' shall be bound to receive him at any time after the trial de novo, in the same manner as defendants are now rendered by bail to a capias issued out of the supreme court. 33. The judge before whom the trial de noco shall take place shall confine the parties to the particulars and set-off" filed before the magistrate, and shall permit no amendment therein. 34. In case of appeal the justice, unless he shall receive a notice in writing signed by both parties or their agents to the contrary, shall return to the prothonotary of the supreme court, before the opening of the court on the first day of the next term in the county, all papers in the cause, with a transcript of the judgment, and the affidavit and bond whereon the appeal was allowed. 35. Any constable neglecting to serve or make return of a writ of summons or capias, besides being liable to an action on the case for any damage that may have been sustained, shall forfeit four dollars. 36. Any constable neglecting to return an execution for the space of ten days after the return day thereof, unless with the consent of the party in whose favor it was tITLE XXXIV.] POWER 01' MAGISTRATES IN CIVIL CASES. 471 issued, or to pay over within five days the mouies received Chap. 128. thereon, or to pay the surplus, if any, on demand, shall forfeit four dollars, and may also be sued in an action for money had and received ; and the justices shall have jurisdiction though the sum claimed exceed forty dollars. 37. Stipendiary magistrates shall severally within their ^"|i"trites to jurisdiction have and exercise all the powers and juris- have same jn- diction conferred by this chapter on two justices of the two justices. peace. 38. The forms shall be as in the schedule. Forms. SCHEDULE OF FORMS. Sum7no7h'). County of , ss. To any of the constables of the said county : You are hereby required to summon A. B., of , to appear before , at , on the day of , at o'clock, in the noon, to answer to C. D. in the sum of , and to make return thereof, on or before the said day. "Witness hand and seal the day of , 18 — . E. F., J. P. (seal.) G. H., J. P. (seal.) * Capias. County of ss. To any of the constables of said county : You are hereby required to take A. B. of , and him safely keep, so that you may have him before at on the day of at o'clock, in the noon, to answer to C. D. in the sum of' , whereof fail not, and to have there then this writ, with your doings thereon. "Witness hand and seal at the day of , 18-. E. E., J. P. (seal.) G-. H., J. P. (seal.) Note. — On the back of the capias, and copy thereof, to be endorsed the sum sworn to in words at length, as fol- lows : By oath for the sum of E. E., J. P. Execution. County of ss. To any of the constables of the said county : "Whereas judgment hath been awarded against C. D. of at the suit of A. B. for the sum of and more for costs. These are therefore to command ^'^^ POWER OF MAGISTRATES IN CIVIL CASES. [PAKT III. Chap. 128. you to levy from off the goods and chattels of the said C. D., such sums making together by sale of such goods and chattels, after duly advertising the same, and for want thereof you are hereby required to take the body of the said 0. D. and him commit to her majesty's jail, [or ivhere there is a lock-up house or other place of confinement in any county nearer the residence of the party to be arrested, insert the name of it in place of the j"ai7,] in , the keeper whereof is required to take the said C. D. into his custody, and him safely keep until he pay the sum above mentioned, with your fees and jailer's fee, or that he be discharged by the said A. B. or otherwise by due course of law. Where- of fail not, and make due return of this writ with your doings thereon to within days. "Witness hand and seal the day of , 18 — . E. F., G.H.,J.P. (seal.) Subpoena. County of , ss. To J. K., L. M., K 0. and P. Q. [according to the number.'] You and every of you are required to appear at , on the day of at the hour of o'clock, in the noon, to give evidence on the part of the [plaintiff or defendant, as the case may be] in a suit now depending between A. B., plaintiff', and G. D., defendant, and then and^there to be tried, which you are not to omit under penalty of the law in such cases made and provided. Dated the day of , 18 — . E. F., J. P. (seal.) Subpoena ticket for each witness, (A. B., plaintiff", Between I and ( C. D., defendant. J. K. is required to give evidence in this suit, on the part of the [plaintiff or defendant, as the case may ie] at , on the day of , at o'clock, in the noon. Dated the day of -, 18 — . E. F., J. P. Venire. County of — ss. To any of the constables of the said county : Tou are hereby required to summon three persons duly qualified to sit as jurors, who are not of kin to either of the parties, to come and be present at , on the day TITLE XXXIV.] POWER 01? MAGHSTRATKS IN CIVIL CASES. 473 of , at o'clock, in the noon, to make a jury Chap. 128. between , plaintiff, and , defendant. Dated the day of , 18—. E. F., J. P. (seal.) Note. — All writs of summons, capias, subpcena, and venire require but one seal, and the same, as well as all executions in cases before two justices, are to be prepared by the justice first applied to in the suit. In all cases the capias is to be endorsed by the justice first applied to, who is to prepare the affidavit also. In all suits triable before two justices, the summons and capias must be signed by two justices, and the execution in such case to have two seals, and to be signed by the two justices that issued the mesne process and tried the cause. Writs of subpoena and venire and the subpcena ticket are to be signed'by one justice only; all affidavits are to be taken before and all oaths under this chapter to be administered by one justice only ; and in all suits before two justices all acts required to be done by one justice only, are to be had and done by and before the justice first applied to, who i's to be the keeper of all papers in the cause, and to make return of the proceedings therein in cases of appeal. Affidavit to obtain a capias. A. B. of , in the county of ■, maketh oath and saith, that C. J), is justly indebted to the deponent in the sum of after giving full credit, to the best of deponent's knowledge or belief, for all payments or offsets, and that the cause of action does not exceed eighty dollars. A. B. Sworn at , the day of , before me. E. F., J. P. RETURNS TO THE FOLLOWING WRITS. To a summons. The within process was duly served on the said C. D. on the day of by me. 0. P., constable. If required, the following affidavit to be made by the officer serving the process : O. P. of in the county of — , maketh oath and saith, that he did on the day of- personally serve the defendant in the annexed process named, with a true copy thereof, and at the same time acquainted with the contents thereof. 0. P. Sworn before me at , the — day of ^ , 18—. E. F., J. P. 60 474 POWER OF MAGISTRATES IN CIVIL CASES. [PART HI. CnAP. 128. To a capias. The Avithin named defendant was arrested and served with a copy of the within process on the day of ■ , and was admitted to bail by me. O. P., constable. To a venire. I have summoned the within jurors as jurors for the trial of the within cause ; namely, Or. H., J. K., L. M. and N. 0. O. P., constable. To an execution, I have levied the debt and costs as within directed. O. P., constable. For want of goods and chattels whereon to levy, I have taken the body of the within named C. D. and committed him to jail as within directed. 0. P., constable. I have levied the sum of , part of the debt and costs within mentioned, the remainder not satisfied. 0. P., constable. I could not find any goods and chattels, or the body of the said CD. 0. P., constable. OATHS TO BE TAKEN BT WITNESSES, JURORS AND CON- STABLES, ON TRIALS. Witnesses. The evidence you shall give to the court \or to the court and jury sworn'] touching the matter in question, shall be the truth, the whole truth, and nothing but the truth. So held you God. Jurors, You shall well and truly try this cause between A. B., plaintiff, and CD., defendant, and a true verdict give according to the evidence. So help you God. Constable or other person appointed to attend jury. You shall keep every one of the jury sworn, and how about to make up their verdict, in some convenient place without either meat or drink ; you shall not suffer any person to speak to them, nor shall you speak to them yourself, except it be to ask if they are agreed on their verdict, without the leave of the court. So help you God. TITLE XXXIV.] POWER OF MAGISTRATES IN CIVIL CASES. 475 Bail bond on capias. Chap. 128. Know all men by these presents that we [iiames, place of residence, and prof ession or calling of the defendant and his hail,'] are held and firmly bound unto [name of the plaintiff in the suit, adding his place of residence and profession or calling'] in the sum of [tioice the amounnt sworn to and endorsed on the capias] to be paid to the said {name of the plaintiff,'^ his cer- tain attorney, executors, administrators or assigns, for which payment, we bind ourselves, and eveiy of us by himself, our and every of our heirs, executors and adminis. trators, firmly by these presents, sealed with our seals, and dated the day of . — ., 18—=. The condition of the foregoing obligation is such, that if the above bounden [the defendant] shall appear before [name the justice or justices issuing the capias] on the — =.^ day of — ~~ — , [insert the day appointed for the trial] to answer to the suit of the above named [name the plaintiff] in the sum of [here insert the sum sworn to,] then the above obligation to be void. Signed, sealed and delivered, "| (seal.) in the presence of > fseal.) . j (seal.) Affidavit to be made by the party appealing. In the .court before [name the justice or justices before whom the trial icas had,] justices of the peace, 1 A. B., plaintiff, Between > and j C. D., defendant. A. fe., [the party making the appeal] of — , in the county of , the above named [plaintiff or defendant, as the case may be, or if the party for whom the appeal is made be absent, say " agent for the above named plaintiff " or defend- ant, as the case may be,'] maketh oath and saith that he is really dissatisfied with, and feels aggrieved by the judg- ment given in this cause, and that he does not appeal therefrom for the purpose of delay, but that justice may be done therein. Sworn at , the "j To be signed by the party day of , > appealmg, or in his ab- 18 — , before me, j sence, the agent. , J. P. Bond to be given on appeal being made. Know all men by these presents, that we, A. B., C. D., and E. F., [names of the appellant if he be present, or if absent, of the agent, and the sweeties, with their places of residence] are held and firmly bound to Q. H. [the party against whom the appeal is allowed] in the sum of [double the amount ofthejudg- 4 76 BTIPKNDURy OB POLICK MAGISTRATES. [PAET III. Chap. 129. meni, debt and cosis,2 to be paid to the said G. H., bis certain " attorney, executors, administrators or assigns, for wbicb payment we bind ourselves, and every of us by himself, our and every of our beirs, executors and administrators, firmly by these presents, sealed with our seals, and dated the day of , 18 — . Whereas a certain cause between the above bounden A. B. [if the party appellant be the principal in the bond, or if he he absent then say between. — name the appellant] and the above named G. H. in which the said [name the appellantj was [plaintiff or defendant, as the case may be] tried before [name the justice or justices before whom the trial was made] justice of the peace for the county of on the day of , and judgment was given in favor of the said G. H. for the sum of , debt and costs, and an appeal therein hath been deaianded on behalf of the said [name the party appealing]. Now the condition of the above obligation is such that if the said [name the appellant] at the next sitting or term of the supreme court for the county of [nume the county in lohich the caus^ was tried] shall duly enter and prosecute his said appeal, and shall proceed therein .to final judgment, and shall abide by and fulfil the judgment of the said court to be given in such appeal, or render the body of the appellant and pay the costs accruing on the appeal, or shall previous to the first day of the sitting of such court pay the full amount of judgment in such cause, together with all costs subsequently accruing thereon, then the above obligation to be void. Signed, sealed and delivered,^ A. B. ^seal.^ in the presence of > C. D. (seal.) . j E. F. (seal.) CHAPTER 129. OF STIPENDIARY OR POLICE MAGISTRATES. Police diyiBiou. I "pj^g general sessions of any county or district, upon application by petition, signed by at least fifty freeholders in any proposed police division, may, if they think fit, appoint a committee of three disinterested persons to inquire into and report upon the propriety and expediency of creating such division. Proceedings to 2. Such committeo, if approving thereof, shall assign the limits, and assign a name to any such proposed division, and report the same in writing to the court, and thereupon the clerk of the peace ghall qa^se the substance of such TITLE XXXIV.] STIPENDIARY OR POLICE MAGISTRATES. 477 report to be advertised bv notice, put up in at least two of Chap. 129. the most public places of the proposed police district, and that the confirmation of the same ■will be considered at the next general session, but such notice shall not be required on reporting any application from the towns of New Glasgow or Truro ; but the court may proceed at once to the confirmation of any report of a committee recommending the appointment of a stipendiary magis- trate for said towns. 3. On such report being approved of by the grand Report to be jury and confirmed by the court, the place within the limits contained therein shall thenceforth be and become a police division, by the name assigned in such report, and shall be subject to the provisions of this chapter. 4. "Within ten days after the creation of any such police ^^ItfJ^g^s^of ^ division, the clerk of the peace for the county shall sum- ikfe division. mon the justices residing within the limits of the division to meet at some central place therein, to carry out the provisions of this chapter ; and shall attend at such meet- * ing and record the proceedings thereof. 5. The majority of the justices present at such meet- j?j^ip?'^^j^''y^ ing shall proceed to select one or more of their number to appointed, 4c. be stipendiary justices for the divisions, who shall continue in office until superseded by the order of the majority of the justices residing within the division, or until they cease to be a justice of the peace. 6. The stipendiary justice or justices selected, or one of ^heb powers, them, shall whenever occasion may require, or he or they may think necessary, act as a police court within the afore- said limits, and shall have and exercise all powers neces- sary for the preservation of the public peace and good order, the protection of property, and the repressing ofifences against the sabbath, or using profane or obscene language, and also shall have power to hear and determine in a summary manner, all larcenies where the value of the goods stolen shall not exceed twenty dollars, receiving of stolen goods, assaults, batteries, riots, petty trespasses, malicious or wanton injuries to property, and breaches of the peace, committed within the limits aforesaid. 7. In districts where only one stipendiary police magis- ^^^^^3'';°?'' trate has been appointed, such police magistrate shall re- trate appointed, quire two justices of the peace to preside with him on the cenies,t°wo*'^' trial of all larcenies, and a jury of three persons shall be ^^th^wmr °'' sworn to try the offender, if required by him. Jury. 8. The court shall have power to punish offenders upon punishment, conviction of any offences within their jurisdiction, by''"®*'*"' imprisonment in the lock-up house or county jail, for a period not exceeding sixty days, or by fine, not exceeding in any case twenty dollars and costs of prosecution ; and in case of non-payment of the fine and costs, may commit the offender to the lock-up house or jail, for any time not exceeding sixty days. 4T8 STIPENDIARY OR POLICE MAGISTRATES. [PART III. Chap. 129. 9. Oftences shall be prosecuted in every case within Limitation of two months after commission. conwetion 4c ^^' "^^ ^^^^ conviction shall be quashed for want of noitoboquasii- form, and no warrant of commitment shall be held void form."^ ^™' ""^ by reason of any defect therein, so as it be therein alleged that the party has been convicted of some oft'ence, named therein. ' ^eTognTzTnces" "'■■'■• '^^^ police court shall have power to hold persons for sessions or charged with offences, as under recosrnizances with sureties, supreme court. , ° j -ii j.j.1 xi to appear and answer in the supreme court or the court oi sessions, and for want of recognizance to commit to" the lock-up house or county jail. Process, how 12. All proccss issucd by the court shall be signed by signed. J? ii • i- ° one or more oi the justices. Appointment of 13. Such justice Or justiccs OH their appointment, shall stawe, hiTpow- appoint a policc constable, who shall have power within ers, &c. |.^g g^j^ limits to arrest any person who, in his presence, shall be guilty of any of the offences within the cognizance of such police justices, and take them before one or more * of the justices, and if such justice shall consider it neces- sary, the police court shall meet and adjudicate upon the hei"dVj''a?r st '^^^^ ' ^^^ ^^ person sliall be detained in custody from the of parties re- time of his arrcst until the hearing of his case more than man e , ai , .j-j^jp^y hours, cxccpt the arrcst be made on Saturday, until his case shall be brought to a hearing ; but upon a hearing the person in custody may be remanded for the procuring of evidence or other sufficient cause ; but nothing herein shall prevent any person so arrested from being delivered on bail, if entitled to be so delivered ; and such justice or justices may dismiss any such police constable and appoint another. All persons to 14. AH persons shall be bound On request to assist the stable. °°°' constable in the execution of his duty, and any person Pine. refusing shall be fined not less than one dollar, nor more than four dollars, by any one of such justices. Salaries. 15. The Salaries of the Stipendiary justiccs and cousta- bles over and above their fees hereinafter prescribed, shall be fixed by the court of sessions, and shall be assessed and collected by an equal rate upon the rateable inhabitants of the police division, in the same manner as poor rates are collected. How collected. iQ. The clcrk of the peace for the county shall make out the collector's roll for the police division, and the same shall be collected by a collector for the police division, to be approved by the sessions in the same manner as other county officers. Sessions may 17. The general sessions shall have power to make S(«s^ "^"^°' regulations for the preservation of the peace within any, such police division — provided the same shall not be repugnant to law. TITLE XXXIV.] BARKISTERS AND ATTORNIES. 479 18. Any such police magistrate shall in all civil matters Chap. 130. have the same jurisdiction as is now conferred upon two jurisdiction of justices. police magis- -in mi- J} 1 • o 11 nil trate in civil ly. ine tees hereinafter enumerated shall be charge- ™*^"®'^- able for the services herein mentioned, viz. : For affidavit — twenty cents. For warrant — fifty cents. Service of process — twenty-five cents. Recognizance — sixty cents. Judgment — twenty cents. Warrant of commitm-ent — twenty cents. Subpcena— ten cents. 20. The seventeenth clause shall be applicable to the app^iy{*"lwnV police court for the town of Pictou ; and appeals in that Pictou. court shall only be granted under the provisions of said clause. 21. A party aggrieved by any judgment for any sum Appeal. of money as debt, damage or penalty under this chapter, shall be entitled to an appeal therefrom in the same way and on the same terms as appeals are allowed from the judgments of justices of the peace, but in no other cases. CHAPTER 130. OF BARRISTERS AND ATTORNIES. 1. Ko person shall practise as an attorney or barrister blnSirlto ba unless he shall have been duly admitted. admitted. 2. Every person intending to apply for admission as a to^e^'os^ed of barrister or attorney shall cause notice thereof to be posted intention to ap- up in the prothonotary's office at Halifax at least one sion!"" ""^' month before the commencement of the term, and his admission shall be moved for in open court within the first four days thereof. 3. N'o person shall be admitted an attorney unless he of ™rk'sh*r'°* shall have actually served under articles of clerkship with preparatory 'to some practising barrister, whether such articles shall be attMnly™*'*" the original articles for the whole term, or any transfer- ence thereof, or new articles for the residue of such term, for a period of five years, or if a regular graduate of any college in her majesty's dominions for the period of four years — provided such graduate shall have passed through a regular collegiate course and kept terms to entitle him to a degree and produce certificates to that effect before being articled, or shall have kept terms for a portion of the time prescribed at one of the inns of court in Great Britain or Ireland, reckoning four terms for one year. 480 BARRISTERS AND ATTORNIES. [part III. Examination as CO education- al qualification. Time from which service Judges may make rules as Qualifications requisite for admission. Chap. 130. 4. No person hereafter shall be admitted as an attorney or be received as an articled clerk by any barrister until he shall have undergone an examination as to his educa- tional qualifications, and shall have produced a certificate of his moral character, which certificate, together with that of his having passed a satisfactory examination, and a copy of his collegiate degree, if any, shall be filed with his articles in the office of the prothonotary at Halifax. 5. The term of service shall commence from the time shall be reckon- of filing a dupHcatc of the articles of clerkship, and the certificates required by the last section, in the prothono- tary' s office in Halifax. 6. The judges of the supreme court may from time to examination, to time make Tulcs regarding the examination of clerks applying to be articled, and the mode of conducting the same ; and such rules made and published in the royal gazette shall have the force of law. 7. Any student of the age of twenty-one years who shall file satisfactory certificates of his having complied with the requisites of the third section of this chapter, and of his good moral character from the barrister with whom he last served, and shall also undergo a satisfactory examination as to his qualification before a judge and two barristers, shall be entitled to be admitted an attorney on taking the following oath : Attorney's oath. " i^ A. B., do swear that I will truly and honestly de- mean myself in the practice of an attorney, solicitor, or proctor, in all and every of the courts of this province in which I shall be employed as such, according to the best of my knowledge and ability." Barristers of 8. A barrister of any court in Great Britain or Ireland or Iceland e'nti- shall be entitled to be admitted to practise as a barrister *\ot*on''fiUn5 and attorney on filing a satisfactory certificate of his being ?atM "^ °*''*^*'" a barrister at the time of application and of his good moral character. Colonial barris- 9. A barrister or attorney of any court in her majesty's nies, and atior- colouics, and an attomcy of any court in Q-reat Britain or Bdtainand^'re- Ireland, ou filing a satisfactory certificate of his being a aTmils^on^^n*" barrister or attorney at the time of application and of his good moral character, and also of his having served as an articled clerk for a term equal to that hereinbefore pre- scribed for articled clerks in this province, and who shall undergo a satisfactory examination as hereinbefore pro- vided for, shall be entitled to be admitted an attorney on taking the foregoing oath. 10. An attorney of the supreme court shall be entitled to be admitted a barrister immediately after his admission Attorneynot;to as au attorney. allow any either n. jvjo attorney shall permit any pcrsou uot an attor- arttded clerk ney. Other than his articled clerk actually serving in hia torneyt'o''sue'"or officc, to suc out any Writ of process, or to prosecute or i^a hS'iamr' defend any action in his name. filing proper certificate Barristers when admitted. TITLE XXXIV.] TRUSTS AND TKUSTEES. 48J 12. Barristers of the supreme court shall be counsel, Chap. 131. advocates, proctors and solicitors of the court of chancery, uan-iaters.theiv court of vice admiralty, court of error, court of marriage PJi^edlnce"'* and divorce, and all courts within this province, and as power of courts such shall be entitled to prosecute and defend all causes pra'(?tHi™e"'iH, therein, and shall have such seniority and pre-audience therein as they are entitled to in the supreme court; but nothing herein contained shall interfere with or affect the wholesome control which the queen's courts are authorized to exert over the several practitioners therein, or to pre- vent such court from suspending, silencing, dismissing or striking off the roll any barrister, advocate, attorney, soli- citor or proctor for mal-practice or misconduct. 13. No barrister shall have at any one time more than No barrister to ,^ , . 1 T 1 T •' have more than three articled clerks. three articled 14. No barrister not actually practising his profession, p^'^tiginVbar' except only the prothonotary at Halifax, being a barrister, f t*'"'^, "'J^'f '° shall take or retain any clerk. a e c er cs. 15. Every notary public, being a barrister of the befn'^^'bOTS- supreme court of this province, is hereby empowered to ter to take take acknowledgments of married women of the execution ment^lVc.fto of deeds throughout this province, and to administer oaths j-Sfoe onhe*' to subscribing witnesses to deeds relative to the execution pea«e- of the same throughout this province, and to certify all such acknowledgments of married women and of the attestations of such witnesses in the same manner and to the same extent as a justice of the peace is now authorized to do. No fee shall be charged or taken by any notary such oervices. public for services performed under this section. CHAPTER 181. OF ttlUStS AND TRUSTEES. 1. The several words hereinafter named are herein used Definition of and applied as follows respectively, that is to say : The word "seized" shall be applicable to any vested "®«'''®''-" estate for life, or of a greater description, and shall extend to estates at law or in equity, in possession or in futurity, in any lands. The word "possessed" shall be applicable to any vested "Possessed." estate less than a life estate at law, or in equity, in posses- sion, or in expectancy, in any lands. The words "trust" and "trustee" shall extend to and ',;Truat." ^ include implied and Constructive trusts, and shall extend to and include cases where such trustee has some beneficial estate or interest in the subject of the trust. 61 482 TRUSTS AND TRUSTEES. [PART III. Chap. 131. All other worda not hereinbefore defined, but herein- construction ^^t^i" used, shall be construed, as nearly as may be, in the of words not seuse iu which correspondin s: words are defined in the denned. ^^ ,. _ rF^^^^ ,^ Enghsh 'trustee act of 1850.' trastee°eom™' ^- Where any infant shall be seized or possessed of any may make lauds upon any trust it shall be lawful for the supreme ""^ '^'^' court to make an order vesting such lands in such person in such manner and for such estate as the court shall direct, and the order shall have the same effect as if the infant trustee had been twenty-one years of age, and had duly executed a conveyance or assignment of the lands in the same manner and^for the same estate. of^jSrisdiotion' 3. When any person solely seized or possessed of any make Sv ' ^^^^^ upou any trust, shall be out of the jurisdiction of the orde?/"'^ court, Or caunot be found, it shall be laTvful for the court to make an order vesting such land in such person in such manner and for such estate as the court shall direct ; and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands in the same manner and for the same estate. ?Jout"ofturi3^^ 4. When any person shall be seized or possessed of any diction. lauds jointly with a person out of the jurisdiction of the court or who cannot be found, it shall be lawful for the court to make an order vesting the lands in the person so jointly seized or possessed, or in such last mentioned per- son, together with any other person, in such manner and for such estate as the court shall direct ; and the order shall have the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance or assignment of the lands in the same man- ner and for the same estate. is'tS^vhich™'^* 5- Where there shall have been two or more persons trustee was sin- jointly seized or possessed of any lands upon any trust, and it shall be uncertain which of such trustees was the survivor, the court may make an ordey vesting such lands in such person in such manner and for such estate as the court shall direct ; and the order shall have the same eflect as it the survivor had duly executed a conveyance or assignment of the lands in the same manner for the same estate. knoTO whether ^- Where any one or more persons shall have been trustee last seized Or possesscd of any lands upon any trust, and it or dead. " shall not be known, as to the trustee last known to have been seized or possessed, whether he be living or dead, the court may make an order vesting such lands in such ]Der- son, in such manner and for such estate as the court shall direct ; and the order shall have the same effect as if the last trustee had duly executed a conveyance or assignment of the lands in the same manner for the same estate. d"ecrfnte™a'e° 7. Whcu any pcrsou seized of any lands upon any without heir or ^j-^g^ gj^j^U have died intestate as to such lands without an TITLE XXXIV.] TRUSTS AND TRUSTEES, 488 heir, or shall have died, and it shall not he known who is Chap. 131. his heir or devisee, the court may make an order vesting ),eirs or de- such lands in such person in such manner and for such wg,*;.^,""' estate as the court shall direct ; and the order shall have the same effect as if the heir or devisee of such trustee had duly executed a conveyance of the lands in the same manner for the same estate. 8. Where any person jointly or solely seized or pos- ^^iS 0™™° sessed of any lands upon any trust shall, after demand, by to person enti- a person entitled to require a conveyance or assignment thereof, or his lawful agent, have stated in writing that he will not convey or assign the same, or shall neglect or refuse to do so for twenty-eight days next after a proper deed for that purpose, shall have been tendered to him, it shall be lawful for the courts to make an order vesting such lands in such persons, in such manner and for such estate as the court shall direct ; and the order shall have the same effect as if the trustee had duly executed a con- veyance or assignment in the same manner for the same estate. 9. "Where lands subject to a trust have been or shall be ^^^^.^'1 Y:^^, ^ converted into money by the operation of any law relating has-been" on-'' to provincial railways, such money shall be considered as money by'opcr- land for the purpose of this chapter, and shall be dealt reiaSng'to'raii- with, as nearly as may be, in conformity to the provisions ways. thereof. 10. In every case where the court shall, under this *^X\' "^''^ "''"t chapter, be enabled to make an order having the eff'ect of convey!'^^°" a conveyance or assignment of any lands, it shall be law- ful for the court, should it be deemed more convenient, to make an order appointing a person to convey or assign such lands, and the conveyance or assignment of the per- son so appointed shall, when in conformity with the terms of the order by which he is appointed, have the same Effect of con- effect in conveying or assigning the lands as an order of veyance, the court would, in the particular case, have had under this chapter. 11. An order under anv of the hereinbefore contained Persons upon •^ WilOSG tlDXillCil~ provisions concerning any lands subject to a trust, may be tionordersmny made upon the application of any person beneficially ''"'''"''^• interested in such lands, whether under any disability or not, or upon the application of any person duly appointed as a trustee thereof. 12. Where any person shall deem himself entitled to Person appiy- an order under this chapter from the court, he may exhi- to^obtain cer'ti- bit before any one of the masters of the court a statement mTsfer!"™ of the facts whereon such order is sought to be obtained, and adduce evidence in support thereof ; and if such evi- dence shall be satisfactory to the master, he shall give a certificate under his hand of the several material facts found by him to be true, and of his opinion that such per- 484 TRUSTS AND TRUSTEES. [part III. Chap. 131. Motion thercuu May Jijiply liy petition and' affidavit. Proceedings upon liearing petition, &c. Cusls. AVlien facts proved, court may make order. Order^founded on allegation of incapacity or absence of trus- tee to be evi- dence of matter alleged. Court may di- rect re-convey- ance and pay- ment of coats of order improper- ly obtained. Proceedings when process cannot be ser- yed on trustee. son is entitled to an order in the form set forth in such certificate. 13. Any person who shall have obtained such certifi- cate, may apply by motion to the court for an order to the effect set forth in such certificate, or for such other order as such person shall deem himself entitled to upon the facts found by the master. 14. Any person so entitled to apply for an order may, should he so think fit, present a petition in the first instance to the court for such order as he may deem him- self entitled to, and may give evidence by affidavit or otherwise in support of such petition before the court, and may serve such person as he may deem entitled to ser- vice thereof. 15. The court may, upon the hearing of such petition, direct a reference to a master to enquire into any facts which require such an investigation, or the court may direct such a motion or petition to stand over, to enable the petitioner to^ adduce evidence or further evidence before the court, or to enable notice or further notice of such motion or petition to be served upon any person. 16. Upon the hearing of such motion or petition, whether any certificate or report of a master shall have been obtained or not, the court may dismiss such motion or petition with or without costs, or make an order there- upon, in conformity with this chapter. 17. Whensoever, either by the evidence or the admis- sions of the parties or by a report of a master, the facts necessary for an order under this chapter sh'all appear to the court to be sufficiently proved, the court may, either upon the hearing of the cause or of any petition or motion, make such order under this chapter. 18. "Whenever any order shall be made under this chapter for the purpose of conveying or assigning any lands, and such order shall be founded on an allegation of the personal incapacity of a trustee, or on an allegation that a trustee is out of the jurisdiction of the court, or cannot be found, in such case the fact that the court has made an order upon such an allegation, shall be conclu- sive evidence of the matter so alleged in any court of law or equity upon any quiestion as to- the legal validity of the order — provided that nothing herein contained shall pre- vent the court directing a re-conveyanee or re-assignment of any lands conveyed or assigned by any order under this chapter ; and it shall be lawful for the court to direct any of the parties to any suit concerning such lands to pay any costs occasioned by the order under this chapter, when the same shall appear to have been improperly obtained. 19. When, in any suit in such court, it shall be made to appear by aflidavit that diligent search and enquiry has been made after any peraon wade 9, defeudant, who is only TITLB XXXIV.] ESCHEATED LANDS. 485 a trustee, to serve Mm with the process of the court, and Chap. 132. that he cannot be found, it shall be lawful for the court to hear and determine such cause, and to make an absolute decree therein against every person who shall appear to them to be only a trustee, and not otherwise concerned in interest in the matter in question, in the same manner as if such trustee had been duly served with process, and had appeared] and filed his answer thereto, and had also appeared by his counsel and solicitor at the hearing of such cause — provided always that no such decree shall bind any rioviso. person against whom the same shall be made without ser- vice of process upon him, for or in respect of any estate or interest which such person shall have at the time of the making of such decree for his own use or benefit, or other- wise than as a trustee. 20. When any person shall, under this chapter, apply oa appucaion to a master in the first instance, and adduce evidence for raa'?^OTdei\he obtaining a certificate as foundation for an order, the mas- cati'oror^d?s''-''' ter may order service of such application on any person, miss with costs. or dismiss it, and direct the costs of any person conse- quent thereon, when taxed by a judge, to be paid by the applicant; and all orders of a master under this chapter forold. ''°^' "*" ' shall be enforced by execution when directed by a judge. 21. The court may order the costs and expenses of, and d°"coX^to°bV' relating to the petitions, orders, directions, conveyances, paid out or pro- and assignments, to be made in pursuance of this chapter, "'^'"''* °^ '''"'^'" or any of them, to be paid and raised out of, or from the lands or the rents or produce thereof, in respect of which the same respectively shall be made, or in such manner as the court shall think proper. 22. Upon any petition, under this chapter, to the court, '^™e!^'"i'*' p"**'" it shall be lawful for the court to postpone making any tn right of peti- order upon such petition until the right of the petitioner e'dlna^silft?''"" shall have been declared in a suit duly instituted for that purpose. 23. All the powers conferred by this chapter upon the Powers may ba court, may be exercised by two of the judges thereof. two^udges^^ CHAPTER 132. OF ESCHEATING LANDS FORFEITED TO THE CROWN. 1. The governor in council may direct the attorney inquests of general, or in his absence the solicitor general, to file ei'^d^'w'ifere^iS', inquests of office in the supreme court of any county where the lands lie, for re-investing in the crown lands that have^been granted; but which shall have been for- 486 ESCHEATED LANDS. [PART III. C hap. 132. feited to the crown iu whole or in part for non-fulfilment "" of the conditions in the grant. queite,how" 2. A notice of the inquest, with a brief description of ^''"="- the lands thereiu, shall be published in the royal gazette, at least twice, and posted up at the door of the court house, and in at least five other public places in the county, within the xieriod of three months before the commencement of the term ; and if any person be living on the lands, or in actual possession and cultivation of the same, or any part thereof, a copy of the notice shall also be delivered to him. fenTntVeg'S 3. If any tenant shall wilfully neglect to give informa- tord" rf^nS' ^^0^ *^^ *^^® notice to his landlord, in case he shall be how recovered! within the provincc, or to his known attorney, or agent, in case he shall be absent therefrom, he shall forfeit a sum not exceeding four hundred dollars, to be recovered by the party injured, case o'f'^ifon^-ap- 4. Upon proof of such noticc, if there be no appear- pearance. auce and plea, by a party who shall be entitled to traverse the inquest, the court, upon hearing evidence which shall t be taken in writing by the judge in the usual manner and filed with the prothonotary, and being satisfied of the non-fulment of the conditions of the grant, shall give judgment, re-investing the lands in whole or in part in the Costs, how paid, crown ; whereupon the usual costs shall be taxed, and being certified by the judge, shall be paid out of the treasury. Proceedings in 5 ghouM such appcarancc and plea be put in, the caseot appear- , m , , • -1 ^^,^ '^ ,1 '^ ' ance and plea, causc shall DC tried m the same way as other causes at common law; if judgment pass for the crown the de- fendant shall be liable for the usual costs; and if the Costs. defendant succeed, his costs to be taxed in like manner and certified by the judge, shall be paid by the commis- sioner of crown lands. cKlny num. 6. Any number of lots within the county may be OM ooin\y'but includcd in the same inquest, but the traverses and trials trials to be se- shall be Separate. whert grant 7. "Where onc grant includes several lots, or where i-afioto irfor- 'Under ouc grant separate allotments are subsequently feiture'of each assigucd to grantees or their assigns, the liability to for- uponplr'fOTm-: fciturc of cach lot shall depend upon the performance of tkiM resp°eof-' the conditions in respect of that particular lot. '°s''- 8. The plea traversing the inquest shall be confined to piea,natureof. ^ simplc denial of the liability to forfeiture under the terms of the grant, and of this chapter, and no other plea shall be allowed unless by special leave of a judge. oheated^iandf " ^- ^^^^^ ^^ escheatcd shall not be granted to any person except to the original owner, his heirs or assigns, before the expiration of one year from the date of the judgment. TITLE XXXV.} MUNICIPALITIES. 487 Cjiap. 138. TITLE XXXV. CHAPTER 133. OF MUNICIPALITIES. 1. Any county may have the benefit of mtinicipal ^o^^^r&ted" ^'^' government, and the desire of a county to be incorporated how testified, hereunder shall be ascertained and testified in riianner following : If one hundred persons, certified by two j ustices of the Meeting, votes. peace to be freeholders, shall present a requisition to the sheriff" to that effect, he shall name a day and place for holding simultaneously a meeting in each electoral district in the county, and shall appoint a presiding officer and clerk of each district ; of which meeting notice ten days previously shall be given in three of the most public places of each district, by printed handbills with a copy of the petition affixed, setting forth the object. The sheriff and presiding officers shall, at the time and place appointed in each Electoral district, convene the meeting and receive the votes for or against the county incorporation, to be given by the persons present qualified to vote for members of assembly, resident within the dis- trict, which voters and their votes, the clerk shall take down in writing. The meetings shall be held from nine o'clock in the Meetings, when morning till three o'clock in the afternoon, when the °^^"^ ' meetings shall be closed, and the presiding officer shall seal up the list of voters, and their votes, and return the same to the sheriff". The return shall be publicly opened and counted by the Return. sheriff in the presence of the clerk of the peace, on a day and at a place to be previously appointed, and a majority of the whole votes shall decide the question. The sheriff" shall return the result to the governor in Return, how council; if in favor of incorporation, the governor i^y "°*^'1"p°"- proclamation shall declare the county to be incorporated under this chapter, unless just ground to impugn the legality and fairness of the proceedings shall be shewn to the satisfaction of the governor in council, in which case the proclamation may be withheld until examinatioh into the legality of proceedings can be had, and the governor in council shall ultimately decide accordingly as the regu- larity and fairness of the proceedings or the reverse shall be established. The sheriff shall receive forty shillings, the presiding Fees. officers ten shillings each, and the clerks five shillings each, in full for their services, to be paid by the county or district. 488 MUNICIPALITIES. Chap. 133. Proceedings, when renewed. County incor- porated, &c. Council, what to consist of. Time of elec- tions. l)istricts, Ac, number of councillors re- turned. What districts to be consider- ed as separate counties. Notices of elec- tions ; presid- ing oflicers. The proceedings may be renewed at any period not less than twelve months from any rejection of incorporation. 2. The inhabitants of every county incorporated under this chapter shall be a body corporate, under the name of the municipality of — ' , and shall have perpetual succession and a common seal, with power to break, renew or alter such seal at pleasure, and shall be capable of suing and being sued, of pleading and being impleaded in all courts and places jvhatsoever, of purchasing, acquiring and holding lands and tenements, and other real and personal property within such municipality, for the use of the inhabitants thereof in their corporate capacity, and of making and entering into such contracts as may be neces- sary for the exercise of their corporate functions ; and the powers of the corporation shall be exercised by and through and in the name of the municipal council of such county. 3. The council shall consist of a warden and council- lors ; the warden to serve for one year, and the councillors after the first election for two years, and until their suc- cessors shall be sworn into office. 4. The first election of councillors shall be held on the third Tuesday of ISTovember, and shall be conducted by the sheriff" and persons named by him ; all succeeding general elections shall be held on the third Tuesday of November in each year, and shall be conducted by pre- siding officers named by the councils. The elections shall take place in and for each of the electoral districts laid off" for the election of members to serve in general assembly, and each district shall return two councillors, except when otherwise provided in the schedule A. hereto annexed, and the election shall take place in and for the several districts comprised in that schedule as therein directed, in the same manner as if the said schedule were incorporated in this chapter. For the purposes of this chapter the districts of Saint Mary's in the county of Guysborough, and Barrington in the county of Shelburne, the township of Clare in the county of Digby, and the township of Argyle in the coimty of Yarmouth, shall be treated as separate counties and incorporated accordingly. And the court houses at Ban-ington, Sherbrooke, Tusket and Clare, shall be used as county court houses in those districts respectively for the purposes of this chapter. 5. It shall be the duty of the sheriff in the case of the first election, and of the presiding officers in future elec- tions, to give at least ten days public notice, in writing, of the times and places of holding the election, and post the same in three of , the most public places in each district ; and the sheriff and persons appointed by him shall preside at such first election, and persons appointed by the council shall preside at future elections. TITLE XXXV.] MUNICIPALITIES. 489 It slia,ll be tte duty of the municipality clerk to supply Chap. 133, the presiding officers with the notices after the first elec- Notices, how tion. supplied. 6. Soon after the first election the councillors shall be DiviBion of divided by the council into two sections, to be distinguished °°^"" °'^"' by lot nunaber one and two, the numbers of which begin- ning Avith section number one shall go out of office in each alternate year. In forming these sections the councillors for districts returning two or more shall be apportioned between the sections. 7. On the third Tuesday in ISTovember, in the year next Time of eioo- foUowing that in which the first election shall be had, and lo?" composfng on the same day in each succeeding year, an election shall *^°'°'^ section- be held of the councillors in one section, beginning with number one, and proceeding m all future annual elections in regular alternation ; the members returned at each election shall be entered on the list of the section pre- viously occupied by the members then vacating office ; councillors going out of office may be re-elected. 8. Every election shall commence at nine o'clock in ^0^5,'°?^;]^°^'' the morning. No candidate shall be proposed after twelve o'clock ; at any time after that hour the poll may be closed by proclamation if no vote be polled within the hour, and the poll shall not be continued later than five o'clock in the afternoon. At the close of the poll the presiding officer shall proceed, publicly, to declare the number of votes given for each candidate, and shall proclaim the person having the majority of votes to be duly elected, and summon his attendance on the second Tuesday of Decem- ber following, at the county court house. If there shall be an equal number of votes the presiding casting vote. officer shall give a casting vote, and so determine the election. The presiding officer and his clerk shall then and there Pouiistto ba publicly subscribe the poll list and seal up the same, and felied; returns. the presiding officer, within two days after the close of the election, under the penalty of four dollars for each day's delay thereafter, shall make return in writing of the councillors elected, together with the poll list, the seals having been unbroken, at the first election to the sherifl, and at subsequent elections to the municipality clerk ; and such poll list, after having been published as hereafter provided, shall be open to the inspection of every member of the incorporation. 9. The proclamation and summons of the presiding Notice to ooun- officer shall be notice to every councillor elect, present in person or by an authorized agent or clerk; councillors elect, not so present, shall be, immediately after the elec- tion, notified and summoned by the presiding officer. 10. Before the presiding officer shall allow any votes to J^'J^'^^^s offl- be polled, he, and the clerk he may employ, shall take the to feTworn? 62 490 Chap. 133. Must vote in his own dis- trict. Elector, qunlifi cation for. MUNICIPALITIES. [part III. Councillor, qualifipfttion for. Persons di.squa- lifled. Persons ex- empted. Warden, tjuali- fication ot. oath in the schedule annexed before a justice of the peace 'or two electors, and they shall certify such oath in the poll book for the election. 11. No person shall vote except in the district in which he resides. 12. Municipal electors shall have the sanae qualification, and be liable to the same objections, questions and oaths, as electors for members of assembly shall at the time by law be required to have, and be subject to ; and the objec- tions shall be taken and questions and oaths put and administered as the law regulating elections of members of assembly shall require. 13. ISTo person shall be qualified to be elected or serve as councillor who shall not at the time of the election be possessed of the same qualifications as are required in the case of members of the house of assembly. 14. JSTone of the following persons shall be elected a councillor, or be appointed to office by any council ; nor shall any person continue to act as councillor or hold any office under a municipal council after becoming one of the persons disqualified as follows : I. Persons in holy orders, or ministers, or teachers of any religious sect or denomination; but this restriction shall not extend to school commissioners. II. Thesherifi". III. Any person having a contract, or share or interest in a contract with the municipality. IV. Any person receiving a pecuniary allowance from the municipality for his services in any office other than warden or councillor. 15. The following persons shall be exempt from being elected councillor or serving in any municipal office unless with their own consent. I. Justices of superior courts and of probate. II. Members of the executive or legislative councils, members of the legislative assembly, schoolmasters ac- tually engaged in teaching, any miller who shall be the only one employed in a mill ; persons more than sixty years of age. III. Persons who have served as councillors or in any municipality office, or paid the penalty for refusing, shall be exempt during the four years next after such service or refusal. 16. At each annual election, including the first, the electors may vote for a warden from among the body of inhabitants resident within the municipality, and qualified as is required for a councillor ; and the sheriff, at the first elections, and at subsequent elections the presiding officers, shall return under seal, the votes given for warden in each district, when they make return of the councillors elected. TITLE XXXV.] MUNICIPALITIES. 491 17. On the first meeting of the council following each Chap. 133. annual election, the council shall ascertain the votes given Return of votes for warden in all the districts, and any one person having '''"' ™r4ea. a majority of the whole number of votes given for warden shall be warden for that year, and he shall take the oaths of office ; and also if he shall not be a councillor already ^'"' ^^"'^'"^■ sworn in, the oath of qualification, and shall have all the authority of a councillor while warden, and be liable to a like fine for non-acceptance of office, or not qualifying. 18.. In case no person shall have a majority of the in case no ma- whole votes given for warden, or being so elected shall not n^tquaUfiod.™ qualify and serve, the council shall choose by a majority of votes from among themselves or from among the inhabitants, at their discretion, a warden duly qualified. 19. The warden shall hold office for one year, and ?c"™*'™ °^ °^' thereafter until his successor be appointed, but he may be re-elected. Whenever a vacancy occurs during the term ^j^g^ vacancy of office, by death, resignation or otherwise, the council oocure. shall, at its first meeting thereafter, proceed to elect a warden for the remainder of the term ; during the tem- porary absence of the warden, his place may be filled by a chairman for the time being, with all the authority of the warden chosen by the members present. 20. The presiding ofiicer, at an election of councillors, rOTitlJi^ltiras during the time of such election, shall be a conservator of p°wer of. the peace, and shall be invested with the same powers for the preservation of the peace, the appi'chension, committal, holding to bail for trial, or -trying or convicting off'enders, as are vested in justices of the peace in this province ; and for the purpose of preserving peace and good order, all justices of the peace residing in the district shall attend at the election, upon being notified in writing by the presi- ding officer ; and such officer may command the assistance of all justices, constables and other persons present at the election, and may swear in as many special constables as he thinks fit ; he may commit any person for a breach of the peace, or for molesting or threatening any elector, at or coming to, or returning from, the election, or for any violation of good order, to the custody of any constable or person present, on view, for such time as he deems expe- dient ; or may, by writing under his hand, commit the offender to the common jail of the county for any period not exceeding ten days; and any justice of the peace or other person present at the election who shall neglect to aid or assist the presiding ofiicer during such election, when requested by him, shall be deemed guilty of a misdemeanor, and be punished accordingly. 21. No person who may be^elected a councillor shall act '^™"°"{j"^oath in that capacity until he shall have taken and subscribed, of allegiance. before a justice of the peace for the county, or the sherifi", in the case of the ^vet election, and in case pf subsequent 492 MUNICIPALITIES. [PART III. CiiAr. 13i5. elections, before the warden or municipality clerk, the oatli of allegiance to her majesty, and also the oath of office and qualification. Such oath shall be taken and sub- scribed by each councillor, duly qualified, at the first meet- ing of the council after his election, or otherwise within ten days after notice of his election ; and, in default thereof, such person shall be deemed to have refused to accept the office of councillor, and shall be liable to pay the munici- pality clerk such fine, not exceeding forty dollars, nor less than twenty dollars, as the bye-laws of the council shall pre- Exemptiuii scfibe — provided that uo pcrson elected a councillor shall from pciiaU: . -^^ gubjcct to a penalty for not taking the required oaths if he be' not qualified, which fact he shall be required to verify on his own oath, before a justice of the peace on first election, and before the wardem or municipality clerk on subsequent elections. Election of 22. In casc of the death or resignation of any council- counciUor m n ^ • • t oHse of vacancy, lor. Or his permanent absence from the mumcipahty, or absence for more than six months, or incapacity after elec- tion, or refusal to accept office, or neglect to be sworn, the warden of the county shall issue a warrant, under his hand and seal, to the presiding officer, requiring him to call a public meeting in the district to elect some other person to fill the vacancy, and such election shall be conducted in the manner prescribed in this chapter for holding elec- tions ; but no warrant shall issue for an election to supply a vacancy within three months of the annual election. councir""" "^ 23. On the second Tuesday of December, after the first election, the sheriff and the councillors elect shall meet at the county court house, and the sherift' having produced the returns of the presiding officers, and the seals being then and there broken, and the returns examined, and the councillors elect having been sworn into office, the council shall be organized and proceed to business. Time of mec'- 24. Ou thc sccoud Tucsday of December, after the an- y"elr!"'^'^ ^^''^ uual clcctions in all subsequent years, the municipal coun- cil and the councillors elect shall meet at the county court house, and the municipality clerk having produced the returns of the presiding officers, and the seals being then and there broken and the returns examined, the council- lors elect shall be sworn into office. Quorum. 25. A majority of the council shall be a quorum for the transaction of business. A smaller number may adjourn Members may from time to time, and absent members may be compelled to^attm^d! '^ to attend under such penalties as may be provided by bye- Questions, how law of the council. All questions arising in the council decided. shaM be decided by a majority of votes ; and the warden or temporary chairman shall have a right to vote. Number^rf 26. There shall be two established meetings of the Syrar!'^ council in each year ; the first, herein designated the an- nual meeting, shall be held at th? county court house on TITLE XXXV.] MUNICIPALITIES. 493 the second Tuesday of December ; the secoud, herein Chap. 133. designated the half yearly meeting, shall bo held at such place as the council may appoint, on the last Tuesday of April. 27. Besides these regular meetings, the council may Extra meeuiig» meet as often as expedient for the despatch of business, at ~""*'^'^ "''■ such time and place as they may appoint. Public notice shall be given of the time and place of each meeting of the council, and all meetings shall be open and public. The council shall have power to adjourn, and to appoint committees to act during the session and -recess. If any council fails to meet at any time appointed by law, they shall not thereby be deemed to be dissolved, but may hold future meetings as if there had been no failure. 28. Each council shall appoint a clerk and a treasurer, cieik and trea, who shall respectively perform the duties now exercised ment'of.''''""" " by the clerk of the peace and county treasurer, as far as the same come within the scope of the corporation and of this chapter, and the council shall prescribe the duties of such officers, and the security to be given for the faithful . performance thereof. 29. The general duty of the clerk shall be to record in ^"*y "''f'"'- a book all the proceedings of the corporation, make regu- lar entries of all resolutions and decisions, and if required by any member present, to enter the votes as given, and to preserve and file all accounts, and to ke«p the books, ^ records, and accounts of the corporation, which shall be open, without fee or reward, to the inspection of all per- sons at all seasonable times and hours. 30. The treasurer shall be appointed annually. It shall Duty oi uea- be the duty of the treasurer to receive and safely keep all "'™'' monies belonging to the municipality, or which he shall be appointed to receive, and keep and pay out the same to such persons and in such manner as he shall be directed to do by any lawful order of the municipal corporation, or by any law of the province, and strictly to conform to and obey any such law or any bye-law lawfully made by any such municipal corporation, and faithfully to perform all such duties as may be assigned to him by any such law or bye-law ; and every treasurer shall annually give such security for the faithful performance of the duties of his office, and more especially for the due accounting for, and paying over, all monies which shall come into his hands by virtue of his office, as the municipal corporation by which he was appointed shall direct. 31. The council shall make such bye-laws or resolu- councuto^^^^ tions as to the duration of the office of the clerk, as to &o. as to dura-' ,t in J2 i. tion of clerk's them shall seem nt. otBce. 32. The council shall make such bye-laws or resolutions game as to as to the number of offices to be held by one person, as to cer^X"^."^ °^' the holding of offices by partners of municipality officers, 494 MUNICIPALITIES. [part III. Chap. 133. KesiRiiation and fine. Duration of of- fice of warden, Ac. ; elected to fill vacancy. Formation of bye-law3. Auditors, ap- pointment of, qualification, Auditors, duty of. Authority of auditors. ' Salaries of war- den and coun- cillors. Attendance. Fines for non- attendance. and as to officers having an interest in any work under- taken for the municipality, as to them shall seem fit. 33. A warden or councillor may resign his office at any time by a declaration to that effect under his hand, and on payment of a fine of forty dollars. The warden or councillor elected to fill an occasional vacancy, shall hold office for the residue of the term of the person whom he succeeds, but no longer ; but he shall be capable of re-election if qualified. 34. The council shall have power to make, and from time to time alter, such rules and regulations as may be requisite for the conduct and good order of their proceed- ings, and such bye-laws touching any matters within its authority as it may judge proper. 35. The council at its first meeting in each year, or as soon after as practicable, shall appoint two persons to be county auditors. No person shall be appointed auditor who is a member of the municipality council or one of the officers, or who was a councillor or officer at-any time within a year previously, or who shall, directly or indirectly, by himself or partner, have any share or interest in any con- tract with the municipality council, or any employment under them. 'No municipality auditor shall act as such unless he shall have the qualification required for a coun- cillor, and shall have previously made and subscribed the oath of office and qualification. 36. It shall be the duty of the municipality auditors to examine and audit the accounts of the treasurer, and all other accounts of the council or corporation, or in which the municipality is concerned; and it shall be the duty of the council to refer to them all such accounts, and their duty faithfully to report thereon without needless delay. 37. The municipality auditors shall have authority to call for all books and vouchers they may deem necessary for elucidating any account laid before them. No account shall be allowed or passed by the council until the same is audited and reported upOn by the municipality auditors ; and all audited accounts shall be open at all reasonable times to the inspection of any elector of the municipality. 38. The warden and councillors shall be paid, that is to say : the warden by a salary to be established by the council, and the councillors according to their actual attendance, at such rate as the council by bye-laws shall determine, not to exceed one dollar per day, and travel at the rate of five cents going and returning per mile. 39. The clerk shall keep an exact account of the attend- ance of councillors at every meeting. 40. The warden and councillors shall respectively be liable to such fines for non-attendance or other neglects, as the council by bye-laws may appoint, of which the clerk shall keep a correct account ; nor shall any of them be TITLE XXXV.] MUNICIPALITIES. 495 authorized to receive any payment for salary or fees until Chap. 133. such fines as may stand against them be deducted. 41. On the first meeting of the council, after each Jo°o?/oversters annual election, or as soon after as may be convenient, the *<:• council shall vote for each poor district the sum it shall judge necessary for the support of the poor in that district, and the purposes enumerated in the eighty-ninth chapter, and shall appoint overseers of the poor for the existing poor districts, until such existing poor districts shall be altered by the council, which districts it has power from time to time "to alter, if it shall see fit to do so. 42. The overseers of the poor shall account to the coun- ^i°""'5|e'(u®^o!'^' cil instead of the sessions; and the council shall exercise tionsofthe the functions given by such eighty-ninth chapter to the ffons, 'J^I'aT"' grand jury, town meetings and general and special sessions, fevg^^gXd'lo! and to the sessions by the ninetieth chapter, and shall hear and determine appeals, and in all particulars shall carry out the objects of those chapters as nearly in conformity with the mode thereby directed as shall be consistent with this chapter and the incorporation thereunder. 43. In the exercise of the functions, and the carrying fo°.™1ftioro'A out of the objects stated in the preceding section, and also in any other matters exclusively relating to townships or special districts, and which have heretofore been managed by township or district officers, and under township and district authority, the municipality may appoint, for carry- ing into effect and managing the same, committees of their own body, comprising councillors returned from such townships or districts, which committees may meet from time to time, and shall specially attend to and regulate the affairs of those townships or districts under the supervi- sion, direction and control of the council, and subject to its orders and revision, and liable to be superseded at its pleasure. 44. The municipalities may vote, assess, collect, receive, ??"« of muni- appropriate, and pay, whatever monies are required for purposes named in the forty-fifth chapter, and shall have all the powers and authority which, when this chapter shall go into operation, may be possessed by the grand jury and sessions under that chapter, and shall carry out the objects of that chapter as nearly in conformity with the mode it directs as shall be consistent with this chapter and the incorporation thereunder. 45. The municipalities, for raising the monies required Appointment of under such eighty-ninth and forty-fifth chapters, and which '^^^^"^°^''- may be required for any other township, district, or county purposes, shall at the annual meeting in December, appoint a suitable number of assessors and collectors, and prescribe their duties and allot their limits within which to act. Casual vacancies shall be filled by the council, if such ofes^ho^'ffued. vacancies occur, within a month before either regular 496 MUNICIPAIilTIBS. [part hi. Chap. 133. Duration of of- fice of treasu- rer, assessors, Financial year when ended. Road monies, distribution of. Appointment of commissioners. Appropriation lists to be Bent to financial se- cretary. Commissioners ■^duties of. Account of commission- ers. Account, fur- ther examina- tion of. School commis- sioners, ap- pointment of. meeting of the council, otherwise by the councillors for the electoral district or districts within which the assessors or collectors were limited to act. 46. The treasurer, overseers of the poor, assessors, collectors, and other officers whose term of office is not by this chapter, or shall not be by bye-law of the corporation otherwise determined, shall hold office from the time of their appointment, or from the time by the council fixed for its commencement, until the first annual meeting in December next, after or until their successors be appointed. 47. The municipal financial year shall end on the thirtieth day of November, and all accounts of the several officers, and of the municipality, shall be audited, ex- amined, determined upon, and passed, as far as possible, at the first annual meeting in December. 48. At the half yearly meeting in April, the road monies granted by the legislature shall be apportioned to the extent and upon the principles which the legislature may from time to time direct and approve ; comniissioners for its expenditure shall be appointed, and any other appointments and business attended to. 49. At the same meeting the council shall transmit to the financial secretary a full and exact list of the appro- priation of the road monies granted by the legislature, with the commissioners names. 50. The commissioners shall lay out the money and make account of the expenditure, as the law now does, or hereafter may require ; but their accounts instead of being attested before a justice of the peace, shall be audited and sworn to before a councillor resident in the district where the work may be performed, or if none shall be resident therein, a councillor resident in an adjacent district ; and such councillor shall certify the account as approved under his hand. The commissioners shall draw for the money, and their accounts be audited and paid at the financial secretary and receiver general's office, as is now done. 51. The commissioners shall immediately return a duplicate of their account to the municipality clerk, and the council shall, at the annual meeting in December, examine these accounts, and return a full abstract to the financial secretary. 52. If any occasion shall induce the council to judge a further examination of any account to be necessary, toey shall refer the same to the municipality auditors, to whom the commissioners shall make explanations; and the auditors shall report thereon to the council before the half- yearly meeting in April. 53. The council shall appoint a board or boards of school commissioners in place of the boards which may be acting at the time this chapter shall go into operation ; the members severally to hold office during the pleasure of TITLE XXXV.] MUNICIl^ALIXIBS. 497 the council. The board of school commissioners shall Ch ap. 133. appoint their own clerk, and in addition to the returns ~~" required by law, shall make a full account of their appro- priations, expenditures and proceedings to the munici- pality clerk at such times as the council may order. The municipality clerk shall immediately place the returns in the hands of the auditors, who shall examine and report thereon to the council at its next general meeting, and the council shall examine and adjudicate on the same. 54. The municipalities shall have authority for the ^j™^°tP"'"Jm.t purchase, acquirement and management of all such real Imise, &q. and personal property within the municipality as may be required for purposes of the corporation, and the sale and disposal of the same, when no longer required ; and for the superintendance and management of all the property of the municipality, and for the erection, preservation and repair of the municipality court house, jail, lock-up house, town hall, and all other buildings required by or being upon any land belonging to the municipality as a corpora- tion ; and shall have and possess all powers given to the sessions by the forty-seventh chapter ; and the protection, care and management of municipality property, and the title, powers and authority of the grand jury, sessions and trustees, under the ninety-seventh chapter. 65. The municipal councils shall appoint a sufficient Pound keepers, r .11 fence viewers, number ot pound keepers, lence viewers, overseers ot the &o., appoint highways, road surveyors, and of such and so many "ls,p°eAaitie3f' officers as may be necessary for carrying into effect any of *°- the provisions of this chapter, or of any other act of the legislature, concerning any of the subjects placed under the jurisdiction of the councils, or of any bye-law of the municipality ; and in like manner to displace any of them and appoint others in their room, and to add to or diminish the number of them as often as the corporation shall see fit, and to regulate their powers and limits wherein they shall be exercised ; and shall regulate and prescribe the duties of all officers acting under the authority of the corporation, and the penalties of their making default in the performance of such duties, and shall settle the remu- neration of all such officers, in all cases where the same is not settled by act of the legislature, and the providing for the payment of the remuneration which, by the act of the legislature, or by the bye-laws of the municipality, may be provided for such officers ; and shall regulate the bonds, recognizances or other securities to be given by such officers for the faithful discharge of their duties; the penalties for refusing to serve in any office, and for the infringement of any bye-law of the municipality. 56. The municipal corporation shall have the appoint- ^ppofntmen'to'f.' ment of health officers, health wardens, and health inspec- tors, and a board of health, with the authority and powers 63 498 MUNICIPALITIES. [PART III. Chap. 133. given to justices in general or special sessions by the fifty- third and fifty-fifth chapters. Rabid animals. g-j-_ rpj^g municipal Corporation shall also make regula- tions for the protection against rabid animals, and the destruction of noxious animals, and for exercising the authority and powers given to justices in general and special sessions by the fifty-fourth and ninety-third chap- gamrind°flsh- ^^^^ » ^^^^ ^°^ ^^^ preservation of useful birds and animals, eries. and the regulation and protection of the river fisheries, and for exercising the powers and authority of general and special sessions under the ninety-second and ninety- fifth chapters. wooiTsfremo?- 58. Also for preventing damage by setting fire to tto^ns°from °" "^oods, felled trees, underbrush, and on bog and marsh riTers, &a. lauds ; also, for removing obstructions from rivers, and for regulating the bringing down of logs, timber and lumber on rivers, and for exercising the powers of the grand jury and sessions under the one hundred and third chapter. tioM^'TOnc"™- 59. The council shall make orders for the prevention ing firemen, 4c. and suppressiou of fircs, reffulatins; stoves, stove pipes, appointment of. J- J^ ' & f . ' i -"^ -"^ n fines, turnaces, ovens, and the sate keepmg ot ashes, and shall appoint firewards, firemen, fire constables, and engine men, and shall exercise the authority and powers of the general and special sessions under the ninety-ninth chap- ter, and shall make orders for the prevention of the unnecessary and wanton discharge of fire arms and fire works. same°power al" 60. Also, thc municipal council shall have the power slolJrSndefr glveu to general or special sessions under, and shall make certain acts. orders for Carrying into effect, the one hundred and fourth, the one hundred and fifth, the one hundred and sixth, the one hundred and seventh, the one hundred and eighth, and the one hundred and ninth chapters ; and so much of the one hundred and forty-seventh chapter as relates to preventing trespasses by horses and oxen and other animals going at large. 4°e ucensls!"^ "^ ^1- The acts required in the one hundred and fourth how performed, chapter to be performed by the clerk of 'the licenses and by justices of the peace, shall be done by the clerk of the corporation and two councillors, unless otherwise ordered by any bye-law or order of the council. cierkfhoTper, 62. The acts required in the one hundred and fifth formed. chapter to be performed by the town clerk, shall be done by any ofiicer or person authorized by the council, and a municipal councillor shall exercise concurrent authority with a justice of the peace under that chapter. Kdi6?not 63. _ This chapter shall not interfere with nor affect the affected. jurisdiction created under the one hundred and fifty-ninth, one hundred and sixtieth, and one hundred and sixty- second chapters. TITLE XXXV.] MUNICIPALITIBS. 499 64. The warden while in office shall ex-officio be a Chap. 133. justice of the peace in and for the county, and shall have warden to hayo within the municipality all the powers and jurisdiction, as fuXeof ui^ well civil as criminal, which belong to that office, and as p™"''. well the warden as in his absence any councillor shall have power to administer oaths and affirmations concerning accounts, and other matters which shall be submitted to the corporation, or shall concern the same. 65. The grand jury and sessions, or the justices in ses- Sons'not're- sion, either general or special, shall not be required to quired to meet, meet for any purpose for which, by law, they are now re- • quired to meet in any municipality ; but nothing in this Power of justice chapter shall be construed to take from justices of the affeetoi^'"' "° peace their power as conservators of the peace, or to im- pair or abridge the criminal jurisdiction they possess by common or statute law, or their authority over offences partaking of a criminal nature given by any law of this province, nor the power to administer oaths, nor any power belonging to the office of justice of the peace, which is not taken away by this chapter, either expressly or by necessary implication. 66. The powers and authority ot the council shall also P^ower ''^i'],^^^ extend to the following objects : cii. I. The laying out of new roads, and the making, main- Roads, taining, or improving of any new or existing road or street, or for stopping up, altering, or diverting the same, not being a great road, subject however to the provisions of the law, and the restrictions and protection to private rights contained in the sixtieth chapter, and subject to the rights of the crown and the province in public property. II. The appropriating and apportioning road money Roarimon«y- granted by the legislature, to be laid out in the munici- pality by the municipal authority, and appointing com- missioners for its expenditure, and the accounting therefor to the government. TTT . The directing and enforcing the performance of statute labor, statute or highway labor, and the expenditure of the com- mutation money for highway labor and all the powers of the sessions and of the justices of the peace under the sixty-second chapter, and the returns therein directed shall be made to the council or their clerk, or as the council may order. IV. The division of the municipality into road districts, Road districts, and the appointment of a supei'intendent of roads in each " ^^'' with such powers as regards the roads and bridges, and the expenditure of provincial and municipality money, and statute labor therein, as the council shall see fit to confer ; and the erection, preservation, and repair of any new or existing bridges ; the protection of timber, stone, sand or gravel, or any appropriation for roads or other public property, and the sale of such timber and other articles. 600 MUNICIPALITIES. [part III. CnAi>. 133. Poor. lutosicatini; liquors. Ferriep, ■wharves, .tc. A?-?'^p?-nient, Collection of us- sessmonty. Proviso. Contractu. SflK^rios of offi- cer.s. Keturns of as- sessors; expen- ses of elections. Presiding offi- cers at elec- tions. Contested elec- tions. Prevention of vice. V. The support of the poor by municipality, township, or district organization, and the erection and maintenance of municipality, township, or district poor houses. VI. The making orders for carrying into effect the law, as it may from time to time exist, concerning the manu- facture, importation, and sale of intoxicating liquor, and the providing payment for expenses that may be incurred in relation to that object. Vn. The regulating ferries, public wharves and land- ings, and the establishment and regulations of markets and fairs. VIII. The providing means for defraying such expenses connected with the administration of justice as require to be defrayed out of the municipality funds ; the providing for the establishment and support of schools and hospitals ; and the erection of school houses and hospitals, the raising, assessing, levying, and appropriating all monies that may be requisite for carrying into effect the objects for which the council is empowered to act or to make bye-laws ; such monies to be raised by rates to be assessed on real and personal property, or its owners or occupiers. IX. The collection and accounting for, of all tolls, rates, and assessments of the municipality revenues ; but no monies shall be voted, nor any salaries determined upon, except at one of the two regular meetings, or an adjourn- ment thereof, unless the public service may require a deviation from this rule ; iu such cases, as also in cases of adjourned meetings, every member of the council shall have notice of the meeting and its objects. X. The making of all contracts relative to matters under their control, which contracts, after having been duly considered by the council, shall be signed by the warden, and countersigned by the county clerk. XI. The determining what officers it may be expedient to pay, fixing the amount of the salaries, fees, and remu- neration, where not fixed by this chapter, and the time and mode of paying them. XII. The returns of assessors and collectors, with a view to the general business of the municipality. The expense of municipal elections and the mode of remu- neration. XIII. The appointing of presiding officers for conduct- ing municipal elections, the times, places, and [^mode of election, and the times, form and manner of the presiding officers' returns, as far as may not be specially directed by this chapter. XrV. The making of rules and regulations for the trying contested elections of members of their own body, and the trying of such contested elections. XV. The enforcing of the due observance of the Lord's day ; the prevention of vice, drunkenness, profane swear- TITLE XXXV.] MUNIOIPALITIBS, §01 in^, obscene language, and any other species of immorality Chap. 1,33. or indecency in the public streets and roads, and for pre- serving peace and good order in such streets and roads, and in public places or taverns ; for preventing the exces- sive beating or cruel and inhuman treatment of animals ; for preventing the sale of any intoxicating liquors to Indians, children, apprentices or servants ; for restraining and punishing all vagabonds, drunkards, and beggars, and all^persons found drunk or disorderly in any street, road or public highway in the county. XVI. The providing for any other purpose, matter or other matier thing specially subjected to the control of the council by "r eoSneii/" law ; but no bye-law shall impose any punishment or im- prisonment, or any penalty exceeding twenty dollars. 67. The council, as often as requisite, shall appoint coiuners, ap- corouers, and determine their limits within which to act. ''°'" ™^" 68. It shall be discretionary with the municipality coun- ^now piougiw eil to procure a snow plough, or other machine or contri- vance sufficient to keep the roads open and beaten after the fall of snow, to the width of at least eight feet, and place the same under the charge of the commissioner's of highways in such district, who shall cause the same to be worked and used by such number of the inhabitants of their district as they shall judge sufficient for its use, and in rotation ; and the cost of the snow plough shall be de- frayed out of the county funds by a rate imposed equally on the whole district. 69. All powers and authorities now vested by law in the i^'i i^o^ers ves- ,, ^ -. . . , -. . *'... ted in grand grand jury and sessions, in special sessions, or m lustices jury, sessions, °j? , T *" *' . ^ x, ^ • i *c. to betrans- ot the peace, to make bye-laws, impose rates or assess- fened to muni- ments, appoint township or county officers, or make ciF."'''^ '^°""' regulations for any county purpose whatever, after the in- corporation of any municipality shall be transferred to, vested in, and be exercised by, the municipality council only ; but no bye-law or regulations made by the justices in Pio^iso- session shall be considered repealed until the municipality council shall expressly declare such repeal by a bye-law ; and the county and town officers shall continue to exercise their functions until the first meeting of the incorporated council under this chapter, and they shall be liable to account to the council. 70. All debts, liabilities and obligations of every kind ?uted?° ''^'"" which may be due or owing, or to which any municipality may be liable at the time of its incorporation, shall be assumed, paid and performed by the municipality council, and be recoverable from the same by action, or otherwise, on the same terms and conditions as the same should have been paid and performed if the county had not been incorporated ; and all property of a public nature, and debts of every kind, belonging or owing to any munici- pality, shall, at the same time, become vested in and duo 502 MUNICIPALITIES. [PABT III. Chap. 133. and payable to the municipality council ; but no munici- ProviBo. pality council shall issue, or authorize the issuing, of any bill or note, or in anyway act, or authorize any persons to act as bankers. Assessment of 71 j^-^ assessinff any rate or tax the municipality coun- ty rates, cii shaii DC govemed in ail tnmgs by the laws now or hereafter to be enacted for the levying and collecting of poor and county rates, except as herein provided ; and. the _ same shall be apportioned and assessed equally on all property liable by law to poor and county rates ; but no rate or assessment whatever shall be made or levied on any lands, tenements or other property, real or personal, of her majesty, her heirs or successors, or in possession of the board of ordnance. coi^rtorVc" '^^' -^^^ allowances or per centage granted by law to any collector or county treasurer, and all salaries, wages and allowances of any kind enjoyed by any county, town or parish officer, shall continue to be paid, after the incor- poration of any county, until otherwise ordered by the municipality council. Bye-laws must 73. Au authcutic copy of each bye-law passed by the the 'legislature, municipality council, shall forthwith, after being passed, be transmitted by the warden or chairman for the time being to the provincial secretary, who shall note on such bye-law the date of its receipt, and lay the same before the governor, by whom the same shall be laid before the legislature within ten days after the opening of its next session. Any bye-law repugnant to the law of the land, or the provisions of this chapter, shall be wholly void and of no effect whatever. bifFatd'before ° '^^- -^'^ ^e&st tcu days before the meeting of the provin- the legislature, cial legislature, the wardens shall transmit an abstract of the receipts and expenditures of the municipality, and the returns from the several judicial district courts during the preceding year, to the governor, who shall lay the same before both branches of the legislature. Not to extend 75. iTothing in this chapter shall extend to any toll to toll bridges, ^j-j^gg^ qj. j-Q^d belonging to any company or individuals, nor to any work under the control of the imperial or pro- vincial governments, or of the military authorities. KCOTered!*"" '^^- -^^^ ^^^^ ^^^ penalties imposed by any bye-laws of the municipality councils, and for the recovery of which no other provision is made, may be recovered with costs, by suit and execution, as in the case of debts, in the name of the corporation, before any justice of the peace for the county, and, after the appointment of judicial district courts, before such courts. All fines and penalties, when recovered, shall be paid and applied as the bye-law shall l^m™tenttit direct. No informer or other person, who is to receive for ness, when. his owu benefit any part of a fine or penalty, shall be com. petent witness for the prosecution, unless he first relin. TITLE XXXV.] MUNICIPALITIES. 503 quislies, in writing, all claim to his proportion of the fine Chap. 133. or penalty ; in such case the whole penalty shall he applied as the bye-law shall direct for' that portion which was to go to the informer or prosecutor. ISTo inhabitant of the Members of municipality, or member or officer of the council, shall be ?entwitne°s™e^° an incompetent witness in any prosecution for the recovery of a fine or penalty, or in any suit for money payable to the clerk or treasurer, or due to the council, or in any suit wherein the council is a party, or has an interest in the result, by reason of such person being an inhabitant of the municipality, or a member of the council, or an ofEicer or a person in its employ ; provided that such person shall have no other interest in the prosecution or suit which would render him an incompetent witness. 77. The municipality council shall strictly account to ^oa§®^"H^6 °^ the governor for the expenditure of all provincial monies be accounted granted for roads or other municipality uses, and under ^°^' all needful vouchers. These expenditures shall be ex- amined and audited by the financial secretary, and the accounts laid before the legislature within ten days after the opening of each session. 78. In the case of the first election, the sheriff shall f^^^g^/j,^^^ *J' receive from the municipality funds the sum of eight election. dollars, in full for his services, and each presiding officer shall receive two dollars, and each poll clerk one dollar, in full for their respective services. 79. All rates and tolls imposed by the council shall be how-re"o7i?6d. assessed and recovered in manner prescribed by the bye- laws, and by such assessors and collectors as may be appointed for that purpose by the council at one of the two meetings hereby appointed : provided such bye-law is not repugnant to the law of this province or to this chapter. 80. All rates for public purposes, not within the scope Eateaforpub- and authority of this chapter, which the inhabitants of any '° p"''p°s«s- county are now liable, or may hereafter be liable, to pay by a law of the province, shall continue to be assessed upon and paid by the inhabitants of any incorporated county, until otherwise directed by act of the legislature. 81. ISTothing in this chapter contained shall be construed repSgnanttawa to repeal or afiect the provisions of any law or enactment only atrected. now in force, except so far only as such law or enactment shall be inconsistent with, or repugnant to, the provisions of this chapter, or the attainment of the objects and pur- poses thereof. 82. Every returning officer, or person holding any ^gf^^^'fa^;, election under this chapter, shall have power to administer ister oaths. all oaths and affirmations required to be administered or taken at any such election. 83. Every officer who shall be elected or appointed Bvery^offioer to under this chapter, shall, before entering on the duties of his office, take and subscribe the general oath of office 504 MUNICIPALITIES. [part III. Chap. 133. Oath of qualifi- cation, by whom taken. No person ' qnalified to vote &e., unless a subject of her majesty. Oaths by whom to be adminis- tered. Penalty for re- fusing to take office. .Affirmation, Corporations of cities not affect- ed. contained in the schedule, unless officers for whom the schedule contains a special oath. of office. 84. Eveiy person elected or appointed under this chap- ter to any office which requires a qualification of property in the incumbent, shall, before he shall enter upon the duties of his office, take and subscribe the general oath of qualification contained in the schedule of oaths, and shall annex thereto and file with the clerk a schedule of his qualification. 85. ISTo person shall be qualified to vote or to be elected or appointed to any office under this chapter, who shall not, at the time of his voting, election, or appointment, be a natural born or naturalized subject of her majesty, her heirs, or successors, and of the full age of twenty-one years. 86. "When no provision shall be made in this chapter for the administering of any oaths or affirmations required to be administered or taken, the same maybe administered by the warden, or, in his absence by the clerk, or by any councillor or any justice of the peace of the county ; and when an oath or affirmation is directed to be administered by, or taken before, any officer or person, the authority to administer is included. 87. Every qualified person duly elected or appointed to any office in, by, or under the municipality, in cases not herein expressly provided for, who shall refuse such office, or neglect to take the several oaths or affirmations required by this chapter in respect thereof, within ten days after his election and appointment, having had notice of such election or appointment ; and every person who shall enter on the duties of any office under this chapter, without having taken the oath required in respect of such office ; and every person duly authorized to administer such oaths or affii-mations, who shall refuse to admimster the same when such administration is reasonably demanded of him, shall thereupon, respectively, forfeit such sum, not more than eighty dollars, nor less than eight dollars, as may be prescribed by the bye-laws of the municipal corporation, to be paid to the clerk of such corporation for the use thereof: provided that such forfeiture shall not be incurred by any person not legally qualified, or who shall be legally exempt, and who shall verify that fact on his oath. 88. Every person authorized by law to make affirmation instead of taking an oath may make affirmation in every case where an oath is required by this chapter ; and any person who shall wilfully swear or affirm falsely in any matter where an oath or affirmation is r^equired by this chapter, shall be deemed guilty of wilful and corrupt perjury, and be punished accordingly. _ 89. Nothing in this chapter contained shall abridge, limit or defeat any rights, powers, privileges or jurisdic- TITLE XXXV.] MUNICIPAtlTlES. S05 tion of the corporation of the city of Halifax, or the cor- Chap. 133. poration of any other town which may be incorporated during any further sitting of the legislature. 90. Every action brought by or against any munici- council, hMv"^' pality council shall be brought by or against the same by t>roiigiit. its corporate name; and in all such actions, service of process on the warden or clerk for the time being shall be good and valid service of such process. In case of judg- ment being given against the corporation, the same shall be paid by order of the council, without unnecessary delay, if there shall be funds available for the purpose, otherwise the amount shall be included in the next assess- ment, and shall be paid out of the first monies which shall be subject to the appropriation of the council; if the amount shall not be paid within six months after judg- ment recovered, and demand made, the supreme court, or a judge thereof in vacation, shall have the power to amerce the county, which, by the sixth and fifty-fourth sections of the forty-fifth chapter, are given to the sessions and the supreme court, and may, if need be, appoint assessors and collectors. 91. Judgments against a municipal corporation shall Judgment3,in- 1 . , ° , . o , ^ ^ tereston. bear interest at six per centum per annum. 92. Coroners appointed under this chapter shall be ^°™.°^''^ '" '"' sworn into oflice before the warden, or in his absence two councillors ; and the forty-first chapter, except the first section, shall be in force as to such coroners. ]S"othing in ^1^!™'.^?!°; T • T • 1 T It rri • -1 uers not aiiect- this chapter contained shall aicect coroners now appointed, sd. 93. The jurisdiction of the general and special sessions gg'^fo^'=*^°'J, °^ of the peace and of the grand jury, in all matters over grand jury which, by this chapter, jurisdiction is given to the muni- ^^^^^'^^'■''^y- cipal council, is taken away in counties in which this chapter shall go into operation. 94. The powers and authorities which in chapters nine- ?°7e';'' &o^*^iyen teen, forty-five, forty-six, forty-seven, fifty-three, fifty-four, to municipal fifty-five, fifty-nine, sixty, sixty-two, sixty-five, sixty-six, sixty-seven, sixty-eight, sixty-nine, seventy, seventy-one, seventy-two, eighty-nine, ninety, ninety-two, ninety-three, ninety-five, ninety-seven, ninety-eight, ninety-nine, one hundred, one hundred and two, one hundred and three, one hundred and four, one hundred and five, one hundred and six, one hundred and seven, one hundred and eight, one hundred and nine, one hundred and forty-seven, one hundred and fifty-seven, are given to grand juries, justices in session, general or special, or to justices of the peace, and to the officers and persons named in those by them, and to officers and persons named in those chapters, for carrying out any of the provisions of those chapters, are given to municipal councils, and to the officers and persons to be appointed by them under the respective bye-laws of such councils. 64 506 MUNICIPALITIES. [PART III. Chap. 133. 95. The warden, councillors, and officers acting under Protection of 'them, shall be entitled to the protection, afforded to justices wardens, 4c. of the peacc and constables, under the one hundred and fiftieth and one hundred and fifty-first chapters. JUDICIAL DISTRICT COURTS. toiots^forlifai 96. The municipal corporation for each municipality tiono'f. shall, at its first meeting, or soon thereafter, divide the municipality into convenient judicial districts, which shall, if practicable, be so formed as not to divide any electoral district or any existing township, and shall appoint three judicial district commissioners for each of such judicial Commissioners districts. The Commissioners shall be qualified as is required for councillors, and before entering upon the duties of their office shall take and subscribe the oaths of allegiance, of office, and of qualification. SilsfoSCTs°'du. 9^- The judicial district commissioners shall retain ration of. officc for three years and no longer. At the end of that period the municipality corporation shall appoint a new board, but may re-elect two of the out-going officers. The corporation shall also supply occasional vacancies, arising from death, resignation, or otherwise. tJ°be°aMmmis- ^8. No commissioncr shall at any time be chosen from sioner. among the councillors. MiSSissIoMrs 99. The commissioners shall have authority within their respective districts only. Their writs may extend over the whole municipality, but shall be returnable only within the district; and shall be directed and served as writs from justices are now served. Jurisdiction. iQO. They shall have and exercise within their district the same jurisdiction over actions of contract, and for petty trespasses and assaults under the one hundredth and forty-seventh chapter, and for penalties for violation of the laws relating to the importation, manufacture, or sale of intoxicating liquors, and other penalties, and the same functions for the purposes of trial which justices of the peace may possess at the time the commissioners are ?e°si(fe*i^d^"^* appointed. ISTo action shall be sustained unless at the trict. time the writ issued either the plaintiff or defendant shall actually reside, or the cause of action shall have arisen within the judicial district. oJmSSfsioners 101. The commissiouers shall meet at some convenient -quorum, Ac. place to be named by the council, on the first Tuesday of every month, and may continue in session for two days, and no longer ; causes not disposed of shall stand over ; two commissioners shall form a quorum. min"ti? oaths. 1^2. The Commissioners shall have the same power to swear witnesses, and to try by jury, and the same authority Appeal. as a court, that justices now have ; and appeal shall lie from their judgment, and in the same mode as it now lies from the judgment of justices. TITLE XXXV.] MUNICIPALITIES. 507 103. Tlie municipal corporation shall appoint a clerk Chap. 133. for each judicial district, who shall take the oath of of&ce cierkofdis- before entering on his duties, and by whom, and not by St'lfff""'*" the commissioners, the writs of mesne process and exe- cution shall be issued ; but the commissioners as well as the clerk may issue subpoenas for attendance of witnesses, which shall extend over the province. 104. Witnesses in cases before the court of judicial witneasoa. commissioners shall be entitled to the same fees for attend- ance, and subject to the same obligations to attend and give evidence, and liable to the same penalties for prevari- cation and for perjury, as in causes at present within the jurisdiction of justices of the peace. 105. After the court of judicial commissioners shall ^°^^^°JJ^^^' come into operation, the power of justices of the peace, when. to the extent of the jurisdiction of the judicial commis- sioners, shall cease. 106. The same fees which in chapter one hundred and Fees. fifty-five, under the head "magistrates courts," are distin- guished as justices fees, constables fees, witnesses fees, and jurors fees, or under any other acts in force relating to such fees, shall be paid upon suits before commissioners ; but the fees distinguished as justices fees shall be received by the commissioners clerk and paid to the county trea- surer. 107. The commissioners shall be paid according to the commissioners actual attendance in court, such amount, and the clerk by such allowance, as the municipal corporation shall appoint ; and the remuneration of the commissioners and clerk shall not in any thing be made to have relation to or be depen- dent upon the number of writs issued or judgments obtained, or the amount of fees collected ; and neither the commissioners nor the clerk shall, on any pretence, derive any emolument from their office beyond such allowance. No commissioner or clerk shall be directly or Noeommis- indirectly employed, or professionally concerned as counsel, lmp?oytdasat attorney, solicitor, proctor, or advocate, for any party in 'o™»y' any matter pending or to be brought before the court of which he is commissioner or clerk. 108. Municipal corporations shall make bye-laws for Bye-iaws. enforcing,a correct and regular account of the writs issued, trials had, judgments entered, and costs incurred, in such judicial district courts, and of the fees paid to the county treasurer ; and shall annually, on or about the thirty-first day of December, make a return thereof to the governor, to be submitted to the legislature. 109. The powers and authority which, in chapters one Powers, protec- hundred and twenty-pight, one hundred aud forty-seven, tlSes o? the ^ and one hundred and fifty-seven, are given to justices of PldTo commfe the peace, ave transferred and given to the judicial district sioners. commissiorjars within their respective ^istr^cts ; and they 508 MUNICIPALITIES. [PART III. CuAf. 133. and the officers executing their process, shall be entitled to the same protection, under the one hundred and fifty and one hundred and fifty-first chapters, as justices of the peace and constables in the like cases are now entitled to. alter theTimits l^^. The municipal councils may, if they see fit, alter and numbers of the limits and iucrcase or diminish the number of electoral f il number of districts in their respective municipalities, and the number "=™°°"'"''*°- of councillors to be elected by each district ; and in lay- ing ofi' such districts regard shall be had to the population so as to equalize the number of councillors in that respect as far as possible. lmn^§ovs ^^^' councillors of any district, or the councillors of any number of districts, in matters relating exclusively to such district or districts, may meet together with the warden, and they shall have full authority to manage all such matters, independent of the control of the council. to TOte"' "9'" 112. The warden or temporary chairman shall have a right to vote on all questions before the council. of°chlp°"63 tx- 113- The provisions of chapter sixty-three " of commis- tende/to muni- sioncrs of streets," shall extend to all municipalities; and ClPRlltiCS all the powers by such chapter vested in the sessions and grand jury, are hereby vested in the council of the muni- cipality, and the power and authorities of the commis- sioners are hereby vested in the commissioners to be ap- pointed by such council. of?hap°SI'ei-' 114- ^11 the provisions of chapter thirty-five, " of the t™dedtomuni- ccusus and Statistical information," shall extend to the c pa 1 IS''- municipalities ; and all the powers, authority and duties given and imposed upon the sessions and clerk of the peace shall be exercised and performed by the municipa- lity council and the municipality clerk, and the officers and persons appointed by them to carry out the provisions of that chapter. The municipality councils shall appoint Jury list revi- committccs of their own body to revise the jury lists in sion of. ' accordance with the acts relating thereto, and shall fulfil all the duties imposed by those acts on the committees of the sessions. to"beuffi"'^ 115. IsTotwithstanding the ninth clause of chapter gj™as«m?nt of ninety-seven, "of trustees of public property," all pro- perty of every description belonging to the municipality, or any district or districts, shall be under the management and control of the municipal council, or of the warden and the councillor or councillors of such district or districts, uind '&^'' of 116. Whenever it shall become necessary to purchase ' ' land or buildings, or to erect buildings for the use of muni- cipalities, or of townships or districts, the assessment for the amount required therefor may, if it be thought advi- sable, be made payable by yearly instalments, to be collected and levied on such municipalities, townships, or districts, liable therefor ; -but such payment shall not be made to extend over a longer'period than five years. TITLE XXXV.] MUNICIPALITIES. 509 117. The election for warden and councillors may be Chap. 133. by ballot or otherwise, as shall be determined by the Elections. council. 118. Municipality councils shall appoint commissioners commissioners of sewers in their respective districts or counties, who shall have power and authority to carry out the provisions of chapter seventy-two, " of commissioners of sewers, and the regulating of diked and marsh lands," and shall also inspeotoraof appoint inspectors of provisions^ lumber, fuel, and other '""'''"'• *"= merchandize, under, the eighty-fifth chapter, except the inspectors of pickled fish. 119. The municipality councils shall have the same commons, power and authority respecting commons as is now vested in the sessions, under the seventy-third chapter, " of com- mons." 120. All power and authority now vested in, and all Municipality duties now imposed on clerks of the peace and town clerks, duaea'of;'Xc! shall be vested in, and be performed by the municipality clerks. 121. All the powers and authorities vested in justices Jiidieiai dis- of the peace by the ninety-first chapter, " of the maiMte- lionors,"pJ'wer.'i nance of bastard children;" also by the one hundred and °*^'*°- twenty-second chapter, " of masters, apprentices and ser- vants;" also by the one hundred and fifty-ninth chapter, "of offences against religion ; " also by the one hundred and sixtieth chapter, " of offences against public morals," shall be exercised by the judicial district commissioners of the municipality. 122. The judicial district commissioners may, on good continuation of grounds shewn by affidavit, continue a cause to the next '"'"*''*• monthly meeting. 123. The warden, and any one of the councillors shall arre^ards"^^"^ have power, on the sworn complaint of the master, to them^'^ ^ arrest any seaman of a British, provincial, or foreign ves- sel, who, having signed regular articles, and not being duly discharged therefrom, shall wilfully absent himself from his vessel ; and after hearing both parties, if he finiJ^ ' the complaint well founded and just, to compel the sea- man to return to duty if requisite ; also to send him to jail until the vessel is ready for sea, and give the aid of constables in carrying him on board his vessel. 124. KTo vote shall pass the municipality council other votes of money than the annual vote for the maintenance of the poor, or for ordinary annual county or district purposes, to a greater amount than two hundred dollars, unless the same shall have been sanctioned by the majority of qualified electors present at a public meeting, which shall have been called for the purpose, and presided over by the warden and one of the' councillors ; of the time and place of which meet- ing ten days notice shall have been given. 125. When any county or district shall hereafter be aMJflfnmunf-i incorporated the municipal council shall, without delay, oipai townships; 510 MUNICIPALITIES. [part III. Chap. 133. — not to disturb existing dis- tricts, &c. Division, wlien to be made. I^umber and limits, how d& eidod. The inhabi- tants of muni- cipal townships to be bodies corporate, &c. Municipal council. First election of councillors, when held. Succeeding elections, when held. Elections, how held, proceed to lay the county or district off in bo many and such, municipal townships as shall be most conveninent, and which shall not disturb the limits of existing townships, electoral districts, or poor districts, unless there be an unavoidable necessity to do so for the convenient division and arrangement of the whole county or district. 126. Such division shall be made between the first annual meeting of the county council on the second Tues- day of December, and the fifteenth day of March next after, and publication shall be forthwith made in each township of the boundaries of all the proposed municipal townships, with a notice that the county council at its next half-yearly meeting will hear objections. 127. The county council shall, at the next half-yearly meeting in April, consider all objections made by petition or in person to the proposed township divisions, and at their discretion establish, alter, modify or re-arrange the same, and having finally decided on the number and limits of the several municipal townships, shall make immediate publication thereof in each township. 128. Immediately thereupon the inhabitants of each of such municipal townships shall be a body corporate, have perpetual succession and a common seal, with power to break, renew and alter the same, and shall be capable of sueing and being sued, of purchasing, acquiring and hold- ing real and personal estate within the township for the use of the inhabitants thereof in their corporate capacity, and of making and entering into such contracts as may be necessary for the exercise of their corporate functions ; and their powers shall be exercised by, through and in the name of the municipality of such township. 129. The municipal council of each township shall consist of five councillors, one of whom shall be presiding of&cei-, under the name of town reeve, and the councillors and reeve shall hold office for two years, and until the election of their successors. 130. The first elections of such township councillors shall, after due notice to the respective townships for not less than ten days given by the county council, be heldon the third Tuesday in JSTovember following, and at such place, and before such presiding officers as shall be appointed by the county council. 131. Succeeding biennal elections shal) be held on the third Tuesday of November in each alternate year, at such place and before such presiding officers, and after such notice as the township council shall by any bye-law ap- point. 132. Every election shall commence and be continued, closed and notified, as directed in the case of county councillors, by sections eight and nine; the township councillors elect being summoned to meet on the fourth Tuesday of November next after, at such place in the ffilTLS XXXV.J MUNICIPALITIES. 511 township as the xjfficef presiding may appoint, until the Chap. 133. place of meeting shall be determined by the township council ; at which time and place the presiding officer and councillors elect shall meet, and the councillors being sworn into office, the township council shall be organized and proceed to business. 133. At the first meeting the township councillors shall h°^"ieoted' elect from among themselves a town reeve in each muni- cipal township, and every town reeve shall tx officio be a county councillor. 134. There shall annually be held a meeting of the ^^^moled!""* township council on the fourth Tuesday of November, to be called the annual meeting ; and such other meetings, either periodical or occasional, as the council shall appoint. The township council may severally adjourn their meet- ings from time to time, and the town reeve, or in case of his death or absence any two of the town council, may at any time summon a special meeting; the places and times of naeeting may be appointed by the township council by bye-law, resolution or adjournment, and the twenty-seventh section shall, as far as applicable, extend to township councils and their meetings. 135. The town reeve shall preside at all meetings, or ^'eet^*"'"' in his absence some member of the council to be selected for the purpose by the members present, who shall for the time have the same authority as the town reeve. 136. Ko person shall be entitled to vote at the election ^r'^To'tS"™'' of township councillors unless he shall reside in the muni- cipal township, and shall have so resided for the time required for residence in the case of voting for members of assembly. 137. The township council, if they deem it desirable. Townships, by may divide their township into five electoral wards, and ^ °"^ '^'^^'*' appoint polling places therein, and presiding officers to receive the votes in each polling place; each ward to return one town councillor, who shall be resident within the township. 138. The township council, at the first meeting, and at °J^^^g"^ °J ^ each annual meeting afterwards, or at such other time as chosen, they may appoint, shall vote for each poor district in the township the sum they shall judge necessary for the sup- port of the poor in that district, and for the purposes enumerated in the eighty-ninth chapter ; and shall appoint overseers of the poor for the existing poor districts within the township until such existing poor districts shall be altered by the town council, which districts they have power from time to time to alter, if they shall see fit to do so. When a poor district lies in more than one municipal township, the councils of the several municipal townships interested, may respectively appoint overseers to meet the circumstances within each municipal township ; and the 512 MUNICIPALITIES. [PAET III. Chap. 133. several townships interested may make agreements with ' each other a'ccording to the emergency of the case, and if unable to agree, the county council shall have power to make such order as may be agreeable to justice. oer^^"*°^°^" ^^^- ^^ ^^^ ^^^^ ^^ *^® ^^^* election, each presiding officer shall receive in ItiU for his services two dollars, and each poll clerk employed one dollar. Srerl, rafes^''" 1*0- ^ach towuship municipality shall appoint a clerk concerning. and a treasurer, and shall prescribe their duties and the security to be given by each for fidelity in office ; and the clerk shall perform within the municipal township all the duties by law required of town clerks. Portions of the 141. The foUowiug scctious, as far as the same are, or oipai govern- may be applicable, and with such changes of terms as may ueTOTfiUe™ to be necessary to make them applicable to townships and c'ipa'imes."'"''*' township municipalities, shall apply to township munici- palities created under this chapter, that is to say : sections eight, nine, ten, eleven, twelve, thirteen, fourte«n, fifteen, nineteen, twenty, twenty-one, twenty-two, twenty-five, twenty-nine, thirty, thirty-three, thirty-four, thirty-five, thirty-six, thirty-seven, thirty-nine, forty, forty-two, forty- four, forty-five, forty-six, forty-seven, fifty-four, fifty-five, sixty, sixty-four, sixty-eight, sixty-nine, seventy, seventy- one, seventy-two, seventy-three, seventy-five, seventy-six, seventy-nine, eighty, eighty-one, eighty-two, eighty-three, eighty-four, eighty-five, eighty-six, eighty-seven, eighty- eight, ninety, ninety-one, ninety-five ; also, so much of sections sixty-nine, seventy-three and ninety-four, as apply to townships or township business or officers ; and also the following division or sub-sections of the sixty-sixth sec- tion viz., I., n., in., except as relates to provincial road money, and the IX. to the XVI., both inclusive, as far as applicable ; and also the schedule of oaths. The township council may, by resolution or bye-law, make regulations on the subject matters of the thirty-first and thirty-second sections ; also, may determine what, if any, remuneration, shall be paid to the town reeve and town councillors for their attendance and services. Words appiica- 142. When in the above portions of this chapter the ble to the coun- , , ., ^ . . ,,, ^.-.-w ty shall be con- words couuty. Or council, or municipality, or councillor, or llbilto^thT^^'' warden, or municipality clerk, or elector, or synonimous township. "vfords occur, they shall respectively be construed to mean township or town council, or township municipality, or township councillor, or town reeve, or town clerk, as the case may be, unless otherwise expressed, or the sense for^ bid the change. ^i1itent°TithtMs' ^'^^' ^^^^ municipal townships shall come into opera-^ chapter shall tion, the powcrs granted under the forty-third section, and foiiowing'^come Other sections inconsistent with the sections from one into operation, j^jnijred and twenty-five to one hundred and forty-two, inclusive, shall cease. TITLE XXXV. J MDNICIPALITIES. 5lS CLAUSES FOR ADAPTING THE COUNTY MUNICIPALITY TO TOWN- ChAP. 133. SHIP INCORPORATIONS. ~ 144. After township incorporations shall be adopted, and the municipal townships laid out and notified in any incorporated county or district, the sections next following shall come into operation therein, that is to say : ei c f 145. Thereafter in those counties or districts no election county eoimc ii of county councillors shall take place. take^]^aoe."°' 146. In such incorporated counties or districts, the ^o™'^i,Phow town reeves of the several municipal townships shall con- elected.' stitute the municipal council ; they shall continue in office two years, and until their successors are appointed, com- mencing .their duties on the second Tuesday of December after the first and every subsequent general or bi-annual election of town councillors, at which time the county councillors shall go out of ofiice. 147. On the second Tuesday of December after the first, f]^f °" °''«'"- and after each subsequent general or bi-annual election, the county council, and the recently elected town reeves, shall assemble at the county or district court house. The town reeves shall respectively exhibit and lodge with the county clerk a certificate of their election as township reeves, signed by the town clerk of the respective town- ship municipalities, and they shall forthwith take the oath of office, as county councillors, and then enter upon the duties of their ofiice, and shall immediately proceed to elect by majority of votes from among themselves, a war^ den, who shall take the oath of office, and shall then enter upon the duties of his office, and who shall be subject to the twenty-first section; and in case the person so elected shall not qualify and serve in the said office, the county council shall choose, by a majority of votes from among themselves, a warden duly qualified, until one shall be found willing to serve. 148. The warden shall have all the authority of county Authority, io. councillor ; he shall hold office for two years, and there- ° after till his successor be appointed and has qualified, and he may be re-elected. Whenever a vacancy occurs during the term of office, by death, resignation, or otherwise, the council shall, at its first meeting thereafter, elect a warden for the remainder of the time. During the temporary ab- sence of the warden his place may be filled by, a chairman for the time being, with all the authority of the warden, to be chosen by the members present. 149. It is declared that the first municipal election in ^{fen'heidt"' any county or district hereafter to be incorporated, is to P?i'/?^j.°4™^e"' take place on the third Tuesday of November next after its duties of coun- incorporation ; and the first meeting of the county coun- councils™^ ''* cillors then elected is to be held on the second Tuesday of December then next after. Until such first meeting of the_ county council, the "existing authorities and modes of 65 5J4 MUNICIPALITIES. [p ART III. Chap. 133. administering the affairs of the county, and of the townships and districts therein, are to continue in force. On the organization of the county council at that meeting, and from thence until its next succeeding annual meeting, the county council is to administer the affairs of the county, V and of the townships and districts therein, under and in conformity with the provisions of this chapter. Township 150. On the third Tucsday of Il^ovembcr ncxt after the efe'Sfdn°Jf!' Said first meeting of the county council, the first election powers, 4c'. of townsMp counciUors is to take place, instead of the election of county councillors ; and on the fourth Tuesday of N"ovember next thereafter, the first meetings of the township councils are to be held, and on the second Tues- day of December then next following, being the second annual meeting of the county council, the newly consti- tuted county council is to be organized, and thenceforth the administration of the county and the township affairs is to be separated, and all the powers and jurisdiction over township affairs, which are given to the county council, and which are given to the township councils, shall there- after no longer be exercised by the county council, but shall exclusively be vested in and be exercised by the township municipalities ; and all other the powers and jurisdiction given to the county municipalities, and not herein given to the township municipalities, shall continue to be exclusively vested in and exercised by the county municipalities; provided that assessors, collectors, over- seers and other ministerial officers, having duties com- menced, and not completed, on the occasion of any of the said changes of authority and jurisdiction, shall continue to have legal authority for the completion of such duties, unless the council coming into authority shall otherwise order ; and they shall make return, and account to such council according to its direction, and otherwise obey its authority. SCHEDULE OF OATHS. Oath of office, to he taken by all persoiis appointed to any office or duty under this chapter for lohich no oath of office is specially provided. I, A. B., do solemnly swear {or affirm where the party is entitled to affirm,^ that I will truly, faithfully and impartially, to the best of my knowledge and ability, execute the office of [inserting the name of the office, as presiding officer, or clerk at the elections, or warden, councillor, county clerk, ^c, ^c, as the case may be,'] to which I have been elected [or appointed] in this municipality, and that I have not received, and will not receive any payment or reward, or promise of such, for the exercise of any partiality or malversation, or other undue execution of the said office. So help me God. TITLE XXXV.] MUNICIPALITIES. 515 Oath of office for the auditors. Chap. 133. I, A. B., do solemnly swear [or affii'm when the party is entitled to affirm,'] that I will faithfully and impartially to the best of my knowledge and ability, execute the office of auditor, to which I have been appointed in this municipa- lity, and that I have not received, and will not receive, any payment or reward, or promise of such, for the exercise of any partiality or malversation, or other undue execution of the said office ; and that I have not, during the time preceding my appointment to the said office of auditor, and that I have not since, had, and that I have not now, directly or indirectly, any share or interest whatever in any contract or employment, with, by, or on behalf of the municipal corporation of . So help me Grod- Oath of qualification. I, A. B,, do swear [or affirm'] that I am a natural born [or naturalized] subject of her majesty, and, that I am by law qualified to be elected to the office of' , in the municipality of ^ =^- according to the true intent of chapter one hundred and thirty-three, and that a correct account, to the best of my knowledge and belief, of the property in respect whereof I claim to be so qualified, is contained in the schedule hereunto annexed. So help me God. . SCHEDULE A. County of King's. Each electoral district shall return two councillors, ex- cept the Aylesford district, which shall return four coun- cillors. County of Queen's. Three councillors to be returned for electoral district number one. County of Yarmouth. In the district of Yarmouth three councillors shall be returned for electoral district No. 2, and one councillor for electoral district IsTo. 4. 51(i pleadings and practice. [part iii. Chap. 134. TITLE XXXVI. OF COURTS AND PROCEEDINGS THEREIN. CHAPTER 134. OF PLEADINGS AND PRACTICE IN THE SUPREME COURT. Part the First. WRITS OF MESNE PROCESS. ^roclss^""™^ 1. All personal actions shall be commenced by writ of summons or replevin, and in case of absconding debtors, Commence- suHimons Or attachment, in the forms set forth respectively mont of fictions, in aj)pendix A. numbers 1, 2, 3, 4 and 5 ; and where the amount claimed is under eighty dollars, the writ shall be Forms. marked on the back thereof, summary cause ; and every writ shall be subscribed with the name of the plaintiff issuing the same, and with his place of abode, or with the name of the attorney issuing the same. me'™io°nof''uS- ^- "'"* ^^^^^ ^ot bc ucccssary to mention any form of necessary. action in the writ or other proceedings. -wdts w^ln"'' ^- "^^^ ^^^^^ °f ^1^ writs, whether of mesne process or dated. otherwise, shall be abolished, and every writ shall be dated by the prothonotary the day it is issued. Writ to contain 4. The Writ shall contain the declaration according to the practice now adopted in summary causes, and to the forms in appendix B, except in very special cases, where the declaration may be annexed or served separately ; but no charge shall be allowed therefor, unless, on taxation, the judge shall deem such course to have been proper under the circumstances. ^p™ftvittohoid 5. If a plaintiff, in any action commenced by summons, in which the defendant is now liable to arrest, whether upon the order of a judge or commissioner, or without such order, shall, at or after the commencement of such action, by affidavit of himself, or some other person, shew, to the satisfaction of a judge or commissioner, that such plaintiff has a cause of action against the defendant or defendants, to the amount of twenty dollars or upwards, or has sustained damage to that amount, and that the plaintiff has probable cause for believing, and does believe, that the defendant is about to leave the province, and that he fears that the debt will be lost unless such defendant is forthwith arrested, such judge or commissioner may, with- out requiring in such affidavit any statement of the plain- tiff's ground for such belief, by a special order, direct that such defendant so about to quit the province, shall be held nviso. TITLE XXXVI.] PLEADINGS AND PEACTICE. 517 to bail for the amoutat of the debt or damage sworu to, or Chap. 134. in the case of unliquidated damages, for such sum as the judge or commissioner shall think fit ; and thereupon the plaintiff within the time expressed in such order, but not afterwards, may sue out one or more writ or writs of capias capias. into one or more different counties, as may be required, against any such defendant, so directed to be held to bail, which writ shall be in the form in appendix A, number 6 ; foiu provided always that nothing in this section contained piov shall operate to prevent a defendant so arrested from negativing,- under affidavits before a judge or commis- sioner, the fact of his being about to leave the province ; and upon such affidavit, if the same is not contradicted on the part of the plaintiff, snch judge or commissioner shall, in his discretion, order his discharge from custody with or without costs. "Where a defendant is ordered to Bnii boncu. be held to bail under this section, after he has appeared to the action, the form of the bail bond in the appendix A, number 24, shall be modified accordingly. 6. The sheriff' shall, within one month after the date of Ban, hon- taken.- such capias, but not afterwards, proceed to arrest such defendant thereupon, and he shall remain in custody until he shall have given a bail bond to the sheriff, or shall have made deposit of the sum endorsed on such writ of capias. Deposit. together with forty dollars for costs ; and the sheriff shall make return of his writ immediately upon the execution thereof, or at the expiration of the month if not executed. 7. Where the defendant shall be described in the pro- wrong name, initials, or want cess or affidavit to hold to bail by initials, or by a wrong of'chnstLn name, or without a christian name, the defendant shall "ft™® '° ^^'^^' not be discharged out of custody, or the bail bond delivered up to be cancelled, if it shall appear by the affidavit that due diligence has been used to obtain a. knowledge of the proper name. 8. "Where a defendant is committed to jail on mesne ^t^'undlr^°r' process, and the plaintiff does not proceed to trial in the rest, and piain- term next after his committal, or in the sittings thereafter, procell."" the defendant shall be discharged — provided he was ready Proviso. for trial at such term or sittings, and had pleaded issuably to the declaration, if served upon him, and given notice of his readiness for trial on the first day of such term or sittings, or before, or when the cause is called, and pro- vided the cause had been called for trial, and also provided the court shall not, on sufficient cause shewn on affidavit, be of opinion that the defendant ought not to be dis- charged. 9. There shall be no special return days for writs of writs, when r«- summons, writs of replevin and writs of attachment and *"™'''^'°- summons against absent or absconding debtors, or their agents or trustees, or writs of certiorari ; but such writs shall be returnable withi4 -f^en days after the service 518 PLEADINGS AND PRACTICE. [part III. Chap. 134. thereof, if the defendant or party served shall reside in the county in which the action is brought ; within twenty days after service if he shall reside in any other county, except in the island of Cape Breton ; and within thirty days if he shall reside in the island of Cape Breton and the action is brought in any county not in the island ; or if he shall reside out of the island and the action is brought in any county within the island ; and judgment may be entered against the defendant if he shall not appear and plead within four days after the expiration of such periods of ten, twenty or thirty days, as the case may be ; and in cases where a writ of summons, with the usual notice endorsed, is served in any county other than that specially named in the direction of the writ, the defendant shall be entitled and required to appear and plead in the same number of days as if the county wherein he is served had been specially named in the writ. 10. The writs shall summon the defendant to appear "within ten, twenty, or thirty days [as the case may Se] after the service of this writ." 11. Writs shall be directed thus : To the sherifl' of , or to any other of our sheriffs ; and may be executed by any sheriff Avithin his bailiwick, and concurrent writs may be issued. 12. The sheriff shall in his return on every writ of mesne process state the very day on which it was served, and ^hall not be allowed any fees on process served by him where the return is not so made. 13. E'o person upon the Lord's day shall serve or execute any civil writ or process, but the service thereof shall be void, and the party serving the same shall be liable to the party aggrieved, as if he had executed the same, without any writ or process. 14. The service of the writ whenever practicable shall be personal, but the plaintiff" shall be at liberty to apply, from time to time, if necessary, on affidavit to the court or a judge, who may, if satisfied that the writ has come to the knowledge of the defendant, or that he wilfully evades service and that reasonable efforts have been made to effect personal service, order that the plaintiff be at liberty to proceed as if personal service had been effected, subject to such conditions as to the court or a judge may seem fit. 15. Writs against a corporation may be served on the principal officer, or on the clerk or secretary. 16. The plaintiff shall annex, or endorse on his writ and copy thereof, the particulars of his claim in the form, or to • the effect contained in appendix A, number 7, in all cases where the claim is for a debt, or liquidated demand in money, with or_ without interest arising upon a qoritract express or implied. Form of, how altered. Writs, how di- rected and eX' ecuted. Endorsement on return. Lord's day, no service on. Service of writ. Ditto on corpo rations. Particulars. TITLE XXXVI.] PLEADINGS AND PRACTICE. 619 17. If such particulars are not given, the plaintifi' shall Chap. 134. not be entitled to final judgment on non-appearance of Effect of non- defendant. ^«i"«''y "^ ■ 18. The plaintifi" 's particulars shall give credits, if to give credit,. there be any. 19. Notice of trial may be endorsed on writs of siim- ^'°*''=« of trial. mons. 20. A set-ofi" by defendant shall be pleaded, and he ^^*(°f^jlP^|'J,J''• shall annex to, or endorse on his plea, and copy thereof, particulars of such set-ofi", giving credits, if there be any, and in default, his plea may be treated as a nullity ; such particulars shall be assimilated in form to those in appen- dix A, number 7. 21. Neither plaintiff nor defendant shall be at liberty J^^'^™<|"^^J "^V to adopt his adversary's particulars, without at the same ocr adopted by time admitting the adverse side of the account or claim as ^' ^^ ^°'^ ^' presumptive proof thereof. 22. A summons for particulars and order thereon may ^^JS™","?/"'' be obtained from a judge or the prothonotary, by either party, without the production of any affidavit, but a sum- mons and order for further or bet'ter particulars stating dates, credits, &c., or for amending particulars, shall be granted only by a judge, and upon affidavit. 23. A defendant shall be allowed the same time for ltl^^^^^^^^%f pleading, after the delivery of particulars under a judge's particulars. or prothonotary's order, which he had at the return day of the summons for particulars ; nevertheless, judgment shall not be signed until the day after the delivery of particu- lars, unless otherwise ordered by a judge or prothonotary, and the judge or prothonotary may order further time. appearance and judgment for non-appsarance. 24. In case of non-appearance, where particulars are defauu*"' ^^ annexed or endorsed, the plaintifi" may, after the time for appearance has elapsed, sign final judgment, which may be entered in the form given in appendix A, number 8, and on which no proceeding in error shall lie, for any sum not exceeding the sum mentioned in the particulars, with interest, at the rate specified, if any, to the date of judg- ment and taxed costs ; but the plaintifi" shall not, in such case, be entitled to recover any sum -beyond the sum so mentioned, with interest and costs. 25. A party may appear at any time before judgment Appearance. by default, and if he appear after the time specified in the writ of summons, he shall, after notice of such appearance to the plaintiff" or his attorney, as the case may be, be in the same position, as to pleadings and other proceedings in the action, as if he had appeared in time; provided After time for always that a defendant appearing after the time appointed fedtuKetS^e by the writ, shall not be entitled to any further time for judgment. pleading or any other proceedings, than if he had ap- peared within such appointed time. 520 PLEADINGS AND PRACTICE. [PAKT III. Chap. 134. Parties admit- ted to defend after final judg- ment. Judgment by default when particulars not given. Assessment of damages where defaultraarked. Jurymay be de- manded or ordered. Appearance and plea, time for. Notice to ap- pear and plead endorsed on writ. Appearance by defendant in person. Service of [plea- dings on defen- dant appearing in person. "When one of several defen- dants only ap- pears. 26. It shall be lawful for the court or a judge upon such terms as to costs or otherwise as they shall think fit, at any time, within one year after final judgment, to let in the defendant in any action or appeal to defend the same, upon an application supported by satisfactory affida- vits accounting for the non-appearance, and disclosing a defence upon the merits with the particular grounds thereof, and affidavits shall not be received in reply unless the court or a judge shall otherwise order. 27. In case of non-appearance, where the particulars are not given, judgment by default may be signed at the expiration of the time for appearance, but no costs shall be allowed in respect of assessment of damages unless it appear that the plaintiff could not conveniently furnish the particulars at the time of the issue of the writ. 28. In actions for the recovery of debts, where a judg- ment for default has been marked, the court or a judge may assess the damages on competent evidence in writing, or viva voce, and the attendance of witnesses and produc- tion of documents before the court or a judge may be enforced by subpoena,* in the same manner as upon the trial of a cause before a jury. Upon such assessment, signed by the judge or prothonotary, being filed, the costs in the action may be taxed, and final judgment entered thereon. 29. Either party, upon due application to the court or a judge, may have the assessment made by a jury, or at any assessment to be made before the court, if the court should think fit, by a special jury ; and at any assessment before a judge he may order such assessment to be made by a jury. 30. The defendant shall appear and plead within four days after the time specified in the writ for his appear- ance. 31. Every writ by which an action is commenced, ex- cept in ejectment, shall be endorsed with the notice in the form in Appendix A, number 9. 32. Every appearance by the defendant in person, shall contain an address, at which it shall be sufficient to leave all pleadings and other proceedings not requiring personal service ; and if the address be not given, the plaintiff may proceed by sticking up the proceedings in the prothonotary's office, without further service, until the true address be given. 33. In any action brought against two or more defend- ants, where the writ of summons is endorsed in the special form hereinbefore provided, if one or more of the defend- ants shall only appear, and another or others of them shall not appear, it shall be lawful for the plaintiff to sign judg- ment against such defendant or defendants only as shall not have appeared, and to issue execution thereupon, in TITLE XXXVI.] I'LfiADlNSS AND PRAOTIOE. 521 whicli case he shall be taken to have abandoned his action CtiAP. 134. against the defendant or defendants who shall have ap- peared, and such defendant or defendants shall be entitled to their costs ; or the plaintiff may, before issuing such execution, proceed against such defendant or defendants as shall have appeared, stating, by way of suggestion, the judgment obtained against the other defendant or defend- ants who shall not have appeared, in which case the judg- ment so obtained against the defendant or defendants who shall not have appeared, shall operate and take effect, whether the plaintiff succeeds against the other defendant or defendants or not. 34. It shall not be necessary to file warrants of attorney pros6eutloi°de- to prosecute or defend. |?^."°°*="- 35. Common bail is abolished, and the appearance shall common baii be in the form in appendix A, number 10. .iboushed. JOINDER OF PARTIES. 36. The joinder of too many plaintiffs shall not be fatal ^^Sy^'^ "/jnt^j to any action, but the plaintiff or plaintiffs entitled may recover. 37. The defendant in any action in which there is more pfaintfff'impro* than one plaintiff, on pleading a set-off may obtain the p^^iy joined. benefit of the set-off on proving, either that all the parties named as plaintiffs are indebted to him, notwithstanding that one or more of such plaintiffs was or were improperly joined, or on proving that the plaintiff" or plaintiffs, or any or either of them who establish their right to maintain the action, was or were indebted to him. 88. The non-joinder of a person as plaintiff in any Non-joinder of action, shall be a variance to be amended at, or at any p^"™*'*''- time before, the trial by the court or a judge, if it shall appear that such non-joinder was not for the purpose of obtaining an undue advantage, and that injustice would not be done by amending, and that the omitted party con- sent to be joined as a co-plaintifi"; provided, however, that no such amendment shall be made if the defendant shall, at or before the time of pleading, have given notice to the plaintiff that he objects to such non-joinder; and also that when a plaintiff" shall be added, the defendant shall be at liberty to withdraw his plea, and allow judgment to be entered against him, in which case the defendant shall be entitled to tax his costs up to the time of the plaintiff's being added, and have execution against the plaintiff therefor. 39. In case such notice be given, or any plea of non- how amended. joinder be pleaded, the plaintiff shall be at liberty to amend the writ and other proceedings, by adding the name of the person alleged to have been improperly omitted as plaintiff, on payment of costs, and with liberty for the defendant to plead anew. 66 622 PLEADINGS AND PKACTICE. O [part III. Chap. 134. Too many de- fendants. Plea in abate- ment of non- joinder. Costs. In actions by husband and wife claims of liusband alone may be joined. Death of par- ties. Of one of seve ral parties. Of sole plaintiff. 40. "Where too many defendants arc joined in an action on contract, the plaintiff shall be at liberty to recover against such defendant or defendants as appear to be liable, and the other defendants shall be acquitted with like pro- visions respecting set-off, and evidence as in the case of too may plaintiffs, and the defendants so acquitted shall be entitled to their costs. 41. Upon a plea in abatement of non-joinder of a con- tractor as defendant, the plaintiff may amend his vs'rit, serve the amended writ on the added defendant, and pro- ceed against both, and the date of such amendment shall, as between such added defendant and the plaintiff, be con- sidered the commencement of the suit. 42. In such case, if upon the trial of the cause, it shall appear that the added defendant was jointly liable with the original defendant, the original defendant shall be entitled to the costs of the plea in abatement and amendment ; but if at the trial it shall appear that the plaintiff cannot main- tain his action against the original and added defendants, but can maintain his action against the original defendant alone, the added defendant shall be acquitted with costs, and the plaintiff shall be entitled to recover against the original defendant with costs, including those of the plea in abatement, and such costs as the plaintiff" may have to pay the added defendant. 43. In any action brought by a man and his wife, for an injury to the wife, in respect of which she is a necessary plaintiff, there may be joined claims by the husband alone, and the damages may be set out as to the husband alone ; but in the case of the death of either plaintiff the suit so far only as relates to the causes of action, if any, which do not surviii^e, shall abate. 44. The death of a plaintiff" or defendant shall not cause the action to abate, but it may be continued in manner and under the restrictions hereinafter mentioned. 45. If there be two or more plaintiffs or defendants and one or more of them should die, if the cause of such action shall survive to such surviving plaintiff" or plaintiffs, or against the surviving defendant or defendants, the action shall not be thereby abated, but such death being suggested iipou the record, the action shall proceed at the suit of the surviving plaintiff" or plaintiff"s against the surviving defen- dant or defendants. 46. In case of the death of a sole plaintiff, or sole sur- viving plaintiff", the legal representative of such plaintiff may at any time within two years after such death, by leave of the court or a judge, enter a suggestion of the death, and that he is such legal representative, 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 cause of action of deceased plaintiff; and it TITLE XXXVI.] PLEADINaS AND PRACTICE. 523 such j uclgment sliall follow upon the verdict in favor of or Chap. 134. against the person making the suggestion, as if such per- son were originally the plaintiff; and the defendant or person against whom the action may be so continued may apply b}' summons to compel the plaintiff, or person en- titled to proceed with the action in the room of the plain- tiff, to proceed according to the provisions of this chapter, within such time as the judge shall order, and in default of such proceeding the defendant, or other person against whom the action may be so continued as aforesaid, shall be entitled to enter a suggestion of such default, and of the representative character of the person by or against whom the action maybe proceeded with, as the case maybe, and to have judgment for the costs of the action and sugges- tion against the plaintiff, or against the person entitled to proceed in his room, as the case may be, and in the latter case to be levied of the goods of the testator or intestate. 47. In case of the death of a sole defendant or sole sur- ofsoiedefen- viving defendant, where the action survives, the plaintiff may make a suggestion, either in any of the pleadings if the cause has not arrived at issue, or in the issue, if it has so arrived, 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 such writ and suggestion, and with a notice signed by the plaintiff or his attorney, requiring such executor or administrator to appear and plead within twelve, eighteen or twenty-live days, as the case may be, after service of the notice ; and that in default of his so doing, the plaintiff" • may sign judgment against him as such executoror admi- nistrator, and the saijie proceedings maybe had in case of non-appearance and plfea, 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 no pleadings have taken place before the death, the sugges- tion shall form part of the declaration, and the declara- tion and suggestion may be served together, and the new defendant shall plead thereto at the same time, and in case the plaintiff' shall have served his declaration, but the de- fendant shall not have pleaded before the death, the new defendant shall plead at the same time to the declaration 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 and rendered necessary by his character of executor or administrator, unless, by leave of the court or a judge, he should be permitted to plead fresh matter in answer to the declaration, and in case the defendant shall have pleaded before the death, but the pleadings shall not have arrived at issue, the new defen- dant, besides pleading to the suggestion, shall continue the •"•^'l PLEADINGS AND PKACTICB. [PART III. Chap. 134. pleadings to issue' in the same manner as the deceased ' might have done, and the pleadings upon the declarations and pleadings upon the suggestion shall be tried together, and in case the plaintiff shall recover, he shall be entitled to the like j udgment, in respect to the debt or sum sought to be recovered, and in respect of the costs, prior to the suggestion, and in respect of the costs of the suggestion and subsequent thereto, as in an action originally com- menced against the executor or administrator. Jiuienwtv be- 48. The death of either party, between the verdict and ■uKu'fidlntni't. theigudgment, shall not hereafter be alleged for error, so as such judgment be entered within two terms after such verdict, or such other time as the court may allow. aftJ'r"inteHoou- '^^^ ^^ ^^^ plaintiff" iu auy action happen to die after an tory and beibie intcrlocutory judgmcut or verdict, and before a final judg- iiug-n.n . j^^gj^^ obtained therein, the action shall not abate by reason thereof, if such actioil might be originally prosecuted or maintained by the executor or administrator of such plain- tiff; and if the defendant die after such interlocutory judgment or verdict, and before final judgment obtained therein, the action shall not abate, if such action might be originally prosecuted or maintained against the executor or administrator of such defendant, and the plaintiff", or if he be dead after such interlocutory judgment, his executors or administrators, may have a writ of revivor against the defendant, if living, after such interlocutory judgment or verdict, or if he be dead, then against his executors or administrators, to shew cause why damages in such action should not be assessed and recovered by him, or them ; and if such defendant, his executors, or administrators, shall appear at the return of such writ, and not show or allege any matter sufficient to arrest final jiidgment, or shall make default, damages shall be thereupon assessed as hereinbefore provided ; and upon the return of the writ or delivery of the order, with the amount endorsed there- on, judgment final shall be given for the plaintiff", his ex- ecutors or administrators, prosecuting such writ of revivor against such defendant, his executors, or administrators respectively. wommf plain- 5^ The marriage of a woman, plaintiff" or defendant, .^iiT "' ''^°'™^' 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 by suggestion or writ of revivor, pursuant to this act, judg- ment may be obtained against the husband and wife, and execution issue thereon, and in case of a judgment for the wife, execution may be issued thereupon by the authority of the husband, without any writ of revivor or 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 TITLE XXXVI.] PLEADINGS AND PRACTICE. 525 such authority be countermanded by the husband, and the Chap. 134. attorney changed according to the practice of the court. ~ QUESTIONS RAISED BY CONSENT WITHOUT PLEADING. 51. The parties, after writ issued, naay, by leave of the uamagos and court or a judge, state any question for trial, which they may think fit, without any pleadings, and with or without an agreement ; that according as it may be determined an agreed sum of money, or a sum to be ascertained by the jury, shall be paid, and as to payment of costs. 52. Upon such finding, judgment may be entered, and Judgmont. the proceedings recorded. 53. Questions of law, after writ issued, may be stated Questions of for the opinion of the court, without pleading, and with similar agreements as to money and costs to be recovered, and with or withoiit an agreement to bring errors, which may be brought when agreed. PLEADING. 5-4. Every declaration, whether in the body of the writ ScTency of. or annexed, and subsequent pleadings which shall clearly and distinctly state all such matters of fact as are necessary to sustain the action, defence, or reply, as the case may be, shall be sufficient, and it shall not be necessary that such matters should be stated in any technical or formal lan- guage or manner, or that any technical or formal state- ments should be used. 55. All statements which need not be proved, such as immaterial the statement of time, quantity, quality and value, where t?bl™mittVd.' these are immaterial, that of losing and finding, and bail- ment in actions for goods or their value ; the statement of acts of trespass having been committed with force and arms, and against the peace of our lady the queen ; the statement of promises which need not be proved, as pro- mises in indebitatus Counts and mutual promises to perform agreements and the like statements, shall be omitted ; and when any clearly unnecessary statement is made, or any statement is made with unnecessary prolixity, as for in- stance, where evidence of the fact is pleaded instead of or as well as the matter of fact itself, or otherwise, it may be struck out or amended by the court or a judge with or without costs. 56. In summary causes the defendant shall not be >o piea in sum - required to file or serve a written plea, but he shall serve "'"'' °*"°®°' a written notice of appearance, in which he shall state briefly the grounds of his defence, and, if he means to rely upon a set-ofi", he shall serve the plaintiff or his attorney with the particulars thereof. 57. No venue shall be changed without a special order ^^^°|f °*' of the court or a judge, unless by the consent of the parties. 526 PLEADINGS AND PRACTICE [part III Chap. 134. No venue in borlj' of writ. Demurrer to pleadings/^ May plead and demur, by leave. Defects in form , omi.ssion.s, ic. Duplicity, argu- mentativeness, uncertainty. Amendment, demurrer in default of. Powers confer- red by two last sees, may be exercised by court. Demurrer filed by leave. 58. The name of the county in the writ shall in all cases he taken to be the venue intended by the plaintift", and no venue shall be stated in the body of the writ or declaration, or in any subsequent pleading; provided that in cases where local description is now required, such local description shall be given. 59. Either partj' may object by demurrer to the plead- ings of the adverse party, on the ground that such pleading does not set forth sufficient ground of action, defence, or reply, as the case may be; and where issue is joined on demurrer, the court shall proceed and give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfec- tion, omission, defect in, or lack of form ; and no judgment shall be arrested, stayed, or reversed for any such imper- fection, omission, defect in, or lack of form. 60. Either party may by leave of the court or a judge, plead and demur to the same pleading at the same time, and it shall be in the discretion of the court or a judge Avhich issue shall be first disposed of. 61. Except in the cases hereinafter particularly men- tioned, no pleading shall be deemed insufficient for any defect now objectionable on special demurrer only. 62. Duplicity, argumentativeness, and uncertainty, shall be no longer grounds of objection to a pleading, unless the effect of such duplicity, argumentativeness, or uncertaintj^ shall be to embarrass the opposite party ; but if any plead- ing by reason of duplicity, argumentativeness, or uncer- - tainty, shall be so framed as to embarrass or mislead the opposite party, it shall be competent to the latter to apply to a judge to have such pleading amended, which applica- tion shall be by summons, wherein the party shall state the particular ground of objection, and require that the pleading be amended. 63. Upon the hearing of such summons, if the judge shall be of opinion that the objection is well founded, and that the pleading is, in the matter objected to, sc pleaded as to embarrass or mislead the opposite party, he may order the party pleading to amend in such manner as he may direct upon payment of costs; and in the event of such amendment not being made within a limited time, the party complaining shall be at liberty to demur, but if the judge shall not be of such opinion, he shall dismiss the summons with costs, and the party complaining shall have no further right of objection as to the point mentioned in the summons, or as to any other point of duplicity, argumentativeness, or uncertainty. 64. The powers conferred upon a judge under the two last sections, may be exercised by the court. 65. A demurrer on any such ground shall state that it is pleaded by leave, and shall repeat the objection taken in the summons and that only. TITLE XXXVI. J PLEADINGS AND PRACTICE. 527 66. Upon the argument of such demurrer the court Chap. 134. shall give judgment according to the validity or invalidity judgment on of the speeihed objection and the substance of the d'^mu"'!'- pleading. 67. The form of a demurrer shall be as follows : Form of. The plaintiff [or defendanf] by his attorney, [or in personj says that the declaration [or plea, ^c] is bad in substance, for the following reasons, viz. : 68. The form of a joinder in demurrer in all other J°™ "f jo'"- cases shall be as follows : The plaintiff [or defendant'] says that the declaration [or plea, ^c] is good in substance. 69. In every demurrer some matter of law intended to f'tf*^sfaied^^'' be argued shall be stated ; and if any demurrer shall be delivered without such statement, or with a frivolous statement, it may be set aside as irregular by the court or a judge, and leave may be given to sign judgment as for want of a plea ; but the party demurring may, at the time of the argument, insist upon any further matters of law, which have been added to the demurrer by a judge's order. 70. No rule for ioinder in demurrer shall be required, Demand of join- ,,,, ,T- T T • • -I • -, °6r subetitnted but the party demurring may demand a joinder m de- fomiie. murrer; and the opposite party shall be bound within ten days after such demand to deliver the same, otherwise judgment. 71. The court or a judge shall, in all cases, have power False, frivolous on such terms as to costs or otherwise as they shall think pLIdings'may fit, to set aside, in whole or in part, false, frivolous or vex- <>«««' a^'''''- atious pleadings, and pleadings colourably amended in pretended compliance with a judge's order to amend. 72. All statutory enactments allowing parties to plead General issue the general issue or other general plea, and to give special aboushld. matter in evidence, under such plea, are repealed. 73. The forms contained in appendix B, shall be sufii- Forms, cient, and those and the like forms may be used, with such modifications as may be necessary to meet the facts of the case ; but nothing herein contained shall render it errone- ous or irregular to depart from the letter of such forms, so long as the substance is expressed without prolixity. 74. In all actions upon bills of exchange and promis- pieas sory notes, pleas that the defendant " never was indebted," in actions upon or " did not promise as alleged," shall be inadmissable. chang'lf. ^^" In such actions, therefore, a plea in denial must traverse some matter of fact : for example, the drawing, or making, or endorsing, or accepting, or presenting, or notice of dishonor, of the bill or note. 75. In every species of actions on contracts, all matters on contracts. in confession, and avoidance, including not only those by way of discharge, but those which show the transaction to be either void or voidable in point of law on the ground 628 PLEADINGS AND PRACTldfi. [part 111. On policies of assuranee, Ac On specialtieSi OiiAP. 134. of fraud oi* otherwise, shall be specially pleaded : for example, infancy, coverture, release, payment, perform- ance, illegality of consideration, either by statute or by common law, drawing, endorsing, accepting, &c., bill or note by way of accommodation, set off, mutual credit, unseaworthiness, misrepresentations, concealment, devia- tion, and various other defences, must be pleaded. 76. In actions on policies of assurance, the interest of the assured may be averred thus :-r— " That A. B. C. and D. [or some or one of them] were or was interested," &c. ; and it may be also averred, " that the insurance was made for the use and benefit and on the account of the person or persons so interested." 77. In actions on specialties and covenants, the defen- dant's plea that the alleged deed is not his deed shall operate as a denial of the execution of the deed in point of fact only ; and all other defences shall be specially pleaded, including matters which make the deed abso- lutely void as well as those which make it voidable. 78. The plea of " nil debet " shall not be allowed in any action. 79. All matters in confession and avoidance shall be pleaded specially as above directed in actions on simple contracts. 80. "Where a defendant intends to set up fraud as a defence to the declaration, or a plaintiff to rely upon fraud in answer to the plea of the defendant, it must be pleaded, but fraud may be proved without plea, in answer to any matter of evidence not upon the record. 81. In all cases the plaintiff may reply without the leave of the court or a judge, and where the plaintiff shall not reply before trial, or within thirty days after the ser- vice of the pleas, he shall be taken to have denied the facts alleged therein ; but the court or a judge may give leave to reply after the expiration of the thirty days. 82. Payment shall not in any case be allowed to be given in evidence in reduction of damages or debt unless the same shall be pleaded in bar. 83. In actions for wrongs independant of contract a plea that the defendant did not do what is complained of by the plaintiff, shall operate as a denial only of the breach of duty, or wrongful act, alleged to have been committed by the defendant, and not of the facts stated in the induce- ment, and no other defence than such denial shall be admissible under that plea. All other pleas in denial shall take issue on some particular matter of fact alleged in the writ or declaration ; and all matters in confession or avoidance shall be pleaded specially as in actions on con- tracts. 84. In actions for trespass to land, a plea that the defendant did not commit the trespass complained of shall • Xil debet.- Matters in con- fession. Fraud to be pleaded. Replication. Payment. Actions for wrongs. For tre.spass.' TITLE XXXVI.] PLEADINGS AND PRACTICE. 529 operate as a denial that tlie defendant committed the tres- (Iiiap. 134. pass alleged in the place mentioned, but not as a denial of the plaintifi''s p'ossession or right of possession of that place, which, if intended to be denied, must be traversed specially. 85. In actions for taking, damaging, or converting the For taking plaintiff's goods, a plea denying the defendant's having ^"°'"^''"'- committed the wrong alleged by taking, damaging, or converting the goods mentioned, shall not operate as a denial of the plaintiff 's property therein, which, if intended to be denied, must be traversed specially. 86. T-here shall be no farther pleadings after the plea ^i^/^Yn^^f of the defendant, except a demurrer thereto, or a replica- ^ '^" '"^^' tion to a plea of set off, or plea of matter occurring subse- quently to the commencement of the action, unless by the special leave of the court, or a judge, or 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 ; and where there is no replication the plaintiff shall be taken to have joined issue on the defendant's pleas. 87. Express colour, profert, oyer and special traverses, pr^?e?royi™' are abolished. *=■■ abo"shed. 88. Each party shall be entitled to demand of the inspection o( other a copy or inspection, or both copy and inspection, in copfelmay bo whole or in part, of any deed, agreement, bill, or other '*®"'™''<='^- written document, mentioned or referred to in his plead- ing, or in any paper therein referred to, or whereof inspec- tion could be obtained by a bill of discovery ; and in the event of such copy not being delivered, or such inspection not being granted, shall be entitled to apply to the court or a judge for an order for such copy or inspection, or both, as the court or a judge may think fit. 89. Such demand, summons, or order, shall be no stay sueh demand to of proceedings, unless specially ordered ; and the court or proceedrnga- a judge may impose such conditions for enforcing obedi- ence thereto as may be deemed right. 90. A party pleading in answer to any pleading in Documents set which such document is mentioned or referred to, shall be I'ngs"'*^" ' at liberty to set out the whole, or such part, or the sub- stance thereof, as may be material ; and the matter so set out shall be deemed and taken to be part of the pleading in which it is set out. 91. A plaintiff or defendant may aver performance of Averment of conditions precedent generally, and the opposite party anddmSi™ shall not deny such averment generally, but shall specify the condition or conditions precedent the performance of which he intends to contest. 92. The general issue is abolished, and every pleading ^bXhed.'"*' 67 530 PLEADINGS AND PRACTICE. [part III. Chap. 134. Rule to plead and demand of plea abolished. Notice to plead, Ac. SeTeral counts for same cause of action. Costs. Entry of con- tinuances, &c. abolished. How pleadable. New defence", arising after last pleading. Ejectment and trespass quare clausum fregit, description. shall specify, particularly and concisely, the facts intended to be denied. 93. The rule to plead, and the demand of plea shall be abolished, and the notice to plead, which may be endorsed on the writ, or declaration, or delivered separately, shall be alone retained. 94. "With any amended declaration, plea, or subsequent pleading, delivered in any cause in term or vacation, a notice to the following effect may be endorsed : " Ten days are given to the plaintiff or defendant to plead, re'ply, &c. in the cause " ; and thereupon, if the party thus notified shall neglect to file his plea, replication, rejoinder, or other pleadings, as the case may be, within ten days from the time of service of such notice, and to deliver a copy of the same to the opposite attorney, the party giving such notice shall, after the expiration of that time be at liberty, being plaintiff in the cause, to mark a default as for want of plea ; or, being defendant, to sign judgment of non pros: pro- vided, however, that the court or a judge may, upon application, grant further time to plead ; and may also, upon proper cause alleged and verified, order such default or non pros to be set aside, upon such terms as shall be thought reasonable and just: and provided also, that the court or any judge thereof may, in such cases as require it, give a rule or order to plead, reply, &c., within any shorter period than ten days. 95. Two or more counts may be added for the same cause of action, and several pleas, replications and subse- quent pleadings may be pleaded, but no costs shall be allowed for any count or other pleading which may appear to the judge unnecessary. The costs of all issues shall be borne by the party against whom they are found, and the jury shall be required to. find the truth on each issue. 96. No entry of continuances, by way of imparlance, curia advisari vult, vice-comes non misit breve, or otherwise, shall be made upon any record or roll whatever, or in the pleadings ; but in all cases in which a plea^wzs darrein con- tinuance is now by law pleadable, the same defence may be pleaded with an allegation that the matter arose after the last pleading, or the issuing of the jury process, as the case may be. 97. Any defence arising after the commencement of any action, shall be pleaded according to the fact, without any formal commencement or conclusion, and any plea which does not state whether the defence therein set up arose before or after action, shall be deemed to be a plea of matter arising before action. 98. In ejectment and in trespass quare clausum fregit, the property shall be described by metes and bounds, or other certain designation. TITLE XXXVI.] PLEADINGS AND PRACTICE. 531 99. In any action for trespass to a person or property, Chap. 134- the defendant shall be entitled to particulars, identifying Tre3pass,ciefen- the canse of action for which the plaintifl' is proceeding, JiX'dpaHicu- and the plaintiff to particulars of any justification pleaded lars, by the defendant, and the judge may order plans of the place in question to be exchanged between the parties. 100. ISTo new assignment shall be pleaded unless by ment?^'^"" leave of the court or a judge. 101. No plea which has already been pleaded to the ri^a. declaration, shall be pleaded to a new assignment, except a plea in denial, unless by leave of the court or a judge, and such leave shall only be granted upon satisfactory proof that the repetition of such plea is essential to a trial on the merits. 102. In actions of libel and slander, the plaintiff may wbei and sian. aver that the words or matter complained of, were used in a defamatory sense, specifying such defamatory sense, without any prefatory averments to shew how such Avords or matter were used in that sense, and such averments shall be put in issue by the denial of the alleged slander .^gj^^ntj. or libel ; and where the words or matter set forth, with or without the alleged meaning, shew a cause of action," the declaration shall be sufficient. 103. In actions of slander, the precise words need not siander. be proved as stated — provided the defamatory matter itself shall be substantially proved, nor shall it be necessary to proof, aver, or prove special damage, where it shall appear that the words were defamatory, and were spoken falsely and maliciously. 104. In all personal actions, except actions for mali- orTmlSdfTrf cious arrest or prosecution, criminal conversation, or g^"™^' ''°' debauching the plaintiff's daughter or servant, the defen- dant, or the plaintiff' in replevin in cases where an avowry is pleaded, may pay into court a sum of money, by way of compensation or amends, without any rule or judge's order for that purpose, except in the case of one or more of several defendants, when such leave must be obtained, and may be granted, on such terms as the court or a judge may think fit. 105. "When money is paid into court, such payment Payment or shall be pleaded in all cases, and in any stage of the cause, SJiurt^to"be as near as may be in the following form : pleaded. The defendant, by , his attorney, ^or in person, ' [if pleaded to part, say as to f , parcel of the money claimed,' ibrings into court the sum off , and says that the saic sum is enough to satisfy the claim of the plaintiff, in respect of the matter herein pleaded to. 106. When money is paid into court, the same shall be g^^j-e^'iled paid to the proper officer, who shall give a receipt for the out. amount in the margin of the plea, and the same shall be paid out to the plaintiff" or his attorney on demand. 532 PLEADINGS AND PKACTICB. [PART III. Chap. 134. 107. The plaintiff after delivery of a plea of payment Eo licaiion to ^^ money into court, shall be at liberty to reply to the suciijiicrt. same by accepting the sum so paid into court, in full satisfaction and discharge of the cause of action in respect of which it has been paid in, and he shall be at liberty in that case to tax his costs of suit ; and in case of non- payment thereof, within twenty-four hours, to sign judg- ment for his costs of suit so taxed ; or the plaintiff may reply that the sum paid into court is not enough to satisfy the claim of the plaintiff in respect of the matter to which the plea is pleaded; and in the event of an issue thereon being found for the defendant, the defendant shall be entitled to his judgment and costs ; and if the plaintiff" shall not, within thirty days after service of plea, reply that the sum is not sufficient, he shall be held to have accepted payment in full satisfaction of the plaintiff's claims. Time to plead. 108. No rule or ordcr for further time to plead shall be granted, unless the grounds of such application be dis- closed by affidavit ; and it shall then rest with the court or a judge, in their discretion, to grant such rule under the special circumstances of each particular case ; but the Protiionotiuy prothouotary in any county, upon affidavit that the defen- de7for'fiirthcr daut has a good defence upon the merits, and that time is time. required to put in pleas, and that the application is not merely for delay, may grant an order for further time to plead not exceeding ten days, and not to extend beyond the first day of the term or sittings for which notice of trial may have been given. mngpioad- 209. It shall be imperative on the party, plaintiff' or defendant, to deliver to the opposite party, or his attorney, as well as to file, all pleadings within the time limited therefor, to's^gnlfd'"^** '" •'--'-^' ■'-* shall not be necessary to have a counsel's signa- counsei'ssigua- ture to auv pleadinsT, but all pleadings shall be si£:ned with sary. thc name oi the party or his attorney. Plea, not to bu 111. The defendant shall not be at liberty to waive his waived without ^-j^^ without Icave of the court or a judge, and on such reasonable terms as they shall approve. debtf' '""'""' 112. "Wherever there are mutual debts in the same right, one debt may be set off" against the other, although such debts may be deemed in law to be of a different nature. formal" art's*'^' ^^^' ^^^ a plca or subscqucnt pleading, intended to be abolished. pleaded in bar to the whole action generally, it shall not be necessary to use any allegation of actionem non, or to the like effect, or any prayer of judgment, nor shall it be necessary, in any replication or subsequent pleading intended to be pleaded in maintenance of the whole action, to use any allegation of precludi non, or to the like effect, or any prayer of judgment ; and all pleas, replica- Formal defeuco iinnecessfirv. TITLB XXXYI.] PLEADINGS AND PRACTICE. 533 tions and subsequent pleadings, pleaded without such Chap. 184. formal parts, shall be taken, unless otherwise expressed, as pleaded respectively in bar or in maintenance of the whole action — provided that nothing herein contained piovIso, shall extend to cases where an estoppel is pleaded. 114. No formal defence shall be required in a plea, and it shall commence as follows : The defendant by , his attorney, [^or in person, ] says that . 115. It shall not be necessary to state in a second or oSpicis^o other plea, or avowry, or cognizance, that it is pleaded by ^^tj^ouue'^vo. leave of the court, or according to the form of the statute, or to that eftect, nor shall such leave be required. 116. Where there are two or more counts substantially pn^atfrnf S s1- for the same cause of action, or two or more pleas raising pfea,' aii'owabro! substantially the same defence to the same cause of action, the defendant or plaintiff may, on suggesting the fact in his plea or replication, plead a single plea or replication to such counts or pleas, and when the opposite party insists that the cause of action or defence is not the same, he m.ay apply to the court or a j udge, who may set aside the plea or replication on such terms, or make such other order as shall appear to be right or just. 117i In all actions by and against the assie'nees of a Bankrupts or ■ 1 ; P 1 • ■ J J insolvents, ac- bankrupt or insolvent, or executors or aammisti'ators, or tiona against, persons authorized by act of parliament to sue or be sued as nominal parties, the character in which the plaintiff or defendant is stated on the record to sue or be sued, shall not in any case be considered as in issue, unless specially denied. 118. The plaintiff may discontinue at any time by filing £Joa°°''""" either a discontinuance , or a rule therefor, and thereupon the defendant may at once tax his costs of defence and enter judgment therefor. 119. Different causes of action, of whatever kind, ex- ?ef''\\\ of 564 PLEADINGS AND PRACTICE. [PART III. Chap. 134. excliange, now over due, directed to the defendant, required the defendant to pay to the plaintiff dollars, two months after date ; and the defendant accepted the said bill, but did not pay the same. Who says, — that the defendant and the plaintiff 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 defend- ant has neglected and refused to marry the plaintiff". "Who says, — that the plaintiff and defendant agreed to marry one another on a day now elapsed, and the plaintiff was ready and willing to marry the defendant on that day, yet the defendant neglected and refused to marry the plain- tiff. Who says, — that the defendant by warranting a horse to be then sound and quiet to ride, sold the horse to the plain- tiff, yet the said horse was not then sound and quiet to ride. Who says, — that the plaintiff and the defendant agreed by charter party, that the plaintiff's ship, called the "Ariel," should, with all convenient speed, sail to E., or so near thereto as she could safely get; and that the defend- ant should there lade her with a full cargo of tallow or other lawful merchandize, which she should carry to H, and there deliver on payment of freight, at f per ton ; and that the defendant should be allowed ten days for loading and ten for discharge, and ten days on demurrage, if required, at $ per day ; and that the plaintiff did all things necessary on his part to entitle him to have the agreed cargo loaded on board the said ship at E, and that the time for so doing has elapsed, yet the defendant made default in loading the agreed cargo. Who says, — that the plaintiff let to the defendant a house, No. — , for seven years, to hold from the day of , A. D., 18 — , at $ a year, payable quarterly, of which rent quarters are due and unpaid. Who says, — that the plaintiff, by deed, let to the defen- dant a house, ISTo. , to hold from the day of A. D. ; and the defendant, by the said deed, coven- anted 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. For wrongs, independent of contract. A. B. says that the defendant broke and entered certain land of the plaintiff' called the big field, and depastm-ed the same with cattle. That the defendant assaulted and beat the plaintiff, and fave him into custody to a policeman, and caused him to e imprisoned in a ppUg§ pfi^Q^, TITLE XXXVI.] PLEADINGS AND PRACTICE. 565 That the defendant debauched arfd carnally knew the Chap. 134. plaintiff's wife. That the defendant converted to his own use the plain- tiff's goods, that is to say : iron hoops, household furniture, [as the case may be.'] That the defendant detained from the plaintiff", his title deeds of land called Belmont, in the county of , that is to say, [describe the deeds.'] That the plaintiff" was possessed of a mill, and by reason thereof, was entitled to the flow of a stream for working the same ; and the defendant by cutting the bank of the said stream, diverted the water thereof away from the said mill. That the defendant falsely and maliciously spoke and published of the plaintiff the words following, that is to say: — "he is a thief." — [If there be any damage here state it, with such reasonable loarticularity as to give notice to the plaintiff of the pecidiar injury complained of: for instance] whereby the plaintiff lost his situation as , in the employ of . That the defendant falsely and maliciously printed and published of the plaintiff, in a newspaper, called " " 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 ^Droving fictitious debts against the estates of bankrupts, with the knowledge that such debts were fictitious. Commencement of a plea. The defendant by , his attorney, [or in p)erson,] says, [here state the substance of the flea.] And for a second plea the defendant says [here state the second plea.] Note. — -The several pleas ought to be loritten in separate paragraphs, and numbered either with figures or in words, in the body thereof, to prevent confusion. • Pleas in actions on contract. That he did not promise as alleged. [The plea is applicable to other declarations on simpile con- tracts, not on bills and notes. Jt would be unobjectionable to use, "did not warrant," ''did not agree," or any other appropriate denial."] That the alleged deed is not his deed. That the alleged cause of action did not accrue within six years, [state the period of limitation applicable to the case] before this suit. That before the action he satisfied and discharged the plaintiff's claim by payment. That the plaintiff at the commencement of this suit, was and still is indebted to the defendant, in an amount equaj 566 PiBADINGS AND PRACTICE. [PART III. Chap. 134. to \_or greater than} the plaintiff's claim, for [Aere state the cause of set-off, as in a declaration; see forms ante.} That after the alleged claim accrued, and before this suit, the plaintiff, by deed, released the defendant therefrom. Pleas in actions for lorongs, independent of contracts. That he did not commit the assault. That he did what is complained of by the plaintiff"s leave. That the plaintiff first assaulted the defendant, who there- upon necessarily committed the alleged assault in his own defence. Replications. The plaintiff joins issue upon the defendant's pleas. The plaintiff as to the second plea, says [here state the answer to the plea, as in the following forms.} That the alleged release is not the plaintiff's deed. That the alleged release was procured by the fraud of the defendant. That the alleged set-off" did not accrue within six years before this suit. That the plaintiff was possessed of land whereon the defendant was trespassing and doing damage, whereupon the plaintiff requested defendant to leave the said land, which the defendant refused to do, and thereupon the plaintiff laid his hands on defendant to remove him, doing no more than was necessary for that purpose, which is the alleged first assault of the plaintiff". New assignment The plaintiff as to the and pleas, says that, he sues not for the trespasses therein admitted, but for trespasses committed by the defendant in excess of the alleged rights, and also in other parts of the said land, and on other occasions and for other purposes than those refer- red to in the said pleas, [as the case rfiay he.'] [If the plaintiff replies, and new assigns, the new assignment may he as follows :] And the plaintiff as to the — • and — — ™ pleas, fur- ther 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 as to the others, the form may be as follows :] And the plaintiff" as to the and pleas, fur- ■ ther says, that he sues not for the trespasses in the pleas [the pleas not replied to,] admitted, but for the tres- passes in the pleas [the pleas replied to,] admitted, and also for, &c. title xxxvi.] pleabinas and practice. 567 Chap. 134. Part the Second. 1. In case any defendant being a British subject, is re- Proceedings siding out of this province, it shall be lawful for the plain- tSh subject"' tiff to issue a writ of summons in the form contained in lydl^pvoylna^! schedule A, to this act annexed, which writ shall bear the endorsement contained in the said form purporting that such writ is for service out of this province : And the time for appearance by the defendant to such writ shall be regulated by the distance from ISTova Scotia of the place where the defendant is residing, and it shall be lawful for the court or judge, upon being satisfied by af&davit that there is cause of action which arose within this province, or in respect of a breach of a contract made within the province, in whole or in part, or intended to be executed in whole or in part within this province, or, in respect of a contract made and entered into between parties, one of whom, at the time of making such contract, shall reside within this province, and that the writ was personally served upon the defendant, or that reasonable efforts were made to effect personal service thereof upon the defendant, and that it came to his knowledge, and either that the defendant wilfully neglects to appear to such writ, or that he is living out of the province in order to defeat or delay his creditors, to direct from time to time that the plaintiff shall be at liberty to proceed in the action in such manner, and subject to such conditions as to such court or judge may s^em fit, having regard to the time allowed for the defendant to appear being reasonable, and to the other cir- cumstances of the case ; provided always, that the plaintiff shall, and he is hereby required to prove the amount of the debt or damages claimed by him in such action, either before a jury upon a writ of enquiry, or before a judge ; and the making such proof shall be a condition precedent to his obtaining judgment. 2. In any action against a person residing out of the Pfoceedings province, and not being a British subject, the like proceed- fOTeSne?resi- ings may be taken as against a British subject resident out province.""'^'^ of this province, save that in lieu of the form of the writ of summons in the schedule A, to this act annexed, the plaintiff shall issue a writ of summons according to the form contained in the schedule B, hereto annexed, and shall in manner aforesaid serve a notice of such last men- tioned writ upon the defendant therein mentioned, which notice shall be in the form contained in the said schedule B, and such service shall be of the same force and effect as the service of the writ of summons in any action against a British subject resident abroad, and by leave of the court or a judge, upon their or his being satisfied by affidavit as 568 PLEADINGS AND PRAOTICE. [pART 111. Chap. 134. aforesaid, the like proceedings may be had and taken ■ thereupon. Amendment of 3_ jf ^]^g plaintiff or his attorney shall omit to insert in or indorse on any writ or copy thereof, any of the matters required by this chapter to be inserted therein, or indorsed thereon, such writ or copy thereof shall not on that account be held void, but it may be set aside as irregular, or amended upon application to be made to the court oat of which the same shall issue, or to a judge, and such amend- ment may be made upon any application to set aside the writ upon such terms as to the court or judge may seem fit. Substitution of 4. If either of the forms of writ of summons contained orms. -^ ^^^ schedules A and B, shall by mistake or inadvertence be substituted for the other of them, such mistake or inad- vertence shall not be an objection to the writ, or any other proceeding in such action, but the writ may upon an ex parte application to a judge, whether before or after any application to set aside such writ or any proceeding there- on, and whether the same or notice thereof shall have been served or not, be amended by such judge without costs. Concurrent 5_ ^ y,'nt for scrvicc withiu the province may be issued and marked as a concurrent writ with one for service out of the province ; and a writ for service out of the province may be issued and marked as a concurrent writ with one for service within the province. vSe'!"" °^ ''^'^" 6. Any affidavit of service of writ or notice, oif any other affidavit for the purpose of enabling the court or a judge to direct proceedings to be taken against defendants out of the province, may be sworn before any judge of a court of record or justice of the peace in any of her majes- ty's dominions, or before any consul general, or consul, vice consul, or consular agent, appointed by her majesty at any foreign port or place, whose official character and signature shall be certified under the hand and seal of a derin^ffid*^"^ ^^otary public — provided always, that if any person shall with Iise sig" within this province use or tender in evidence any such nature. affidavit with a false or counterfeit signature thereto, know- ing such signature to be false or counterfeit, he shall be guilty of felony, and shall, upon conviction, be liable to be imprisoned in the provincial penitentiary for a term not exceeding three years, nor less than one year, with hard labor. TITLE XXXVI.] PLBAdINGS AND PKACTICH. ■669 SCHEDULES. tJHAP. 134-. A. Writ where the defet^dant, being a British subject, resides ou' ■ ¥ the jurisdiction of this province. SS. Victoria, by the grace of God, &;c. To C. D. of , in the of . We command you that within [here insert a sufficient num- ber of days luithin which the defendant might a;ppear with refer- ence to the distance he may be at from this province,'] days after the service of this vs^rit on you, inclusive of the day of such service, you do cause an appearance to be entered for you in the supreme court of ITova Scotia, at , in an action at the suit of A. B., who says that the said C. D. is indebted to him [for work done and materials provided by the plaintiff for the defendant at his request, or as the case may be,] and take notice that in default of your so doing, the said A. B. may, by leave of the coui't or judge, proceed therein to judgment and execution ; and he claims — . Issued the day of — — — , A. D. 18—- - — '— , prothonotary. E. P., plaintiff's attorney, [or in person,] 3Iemorandum to be subscribed on the Writ. !N". B. — This writ is to be served within --^ — calendar months from the date hereof; or if renewed, from the date of such renewal, including the day of such date, and not afterwards. Endorsement to be made on the writ before service thereof. This writ is for service out of the jurisdiction of the court, and was issued by E. F., of — , attorney for the said plaintiff, [or, this writ loas issued in person by A. JB. who resides at , mention plaintiff's place of residence.] B. Writ where a defendant, not being a British subject, resides out of the jurisdiction of this province. SS. Victoria, by the grace of God, &c. To C. D., of — — , in — . "We command you that within [here insert a sufficient number of days, within lOhich the defendant might appear, with reference to the distance he may be at from Nova Scotia] days after the notice of this writ is served on you, inclusive of the days of such service, you do appear or cause an appear- ance to be entered for you in our supreme court of Nova 72 6'?0 Evidence. [paet lit. Chap. 135. Scotia at , in an action at the suit of A. B., who ~ says that the said C. D. is indebted to him Ifor ivork and materials provided by the plaintiff for the defendant at his request, or as the case may be,'] and talce notice that in default of your so doing the said A. B. may, by leave of the court or a judge, proceed therein to judgment and execution ; and he claims dollars. Issued the — — day of — , A. D. 18 — . , prothonotary. E. F. plaintiff' 's attorney, [or in person.'] Memorandum to be subscribed on the lorit. N". B. — ISTotice of this writ is to be served within six calendar months from the date thereof, including the day of such date, and not afterwards. Endorsements as in schedule A. Notice of the foregoing writ. To G-. H., of -, in Take notice that A. B., of , in the province of ITova Scotia, has commenced an action at law against you C. D., in the supreme court of Nova Scotia, at , by a writ of that court, dated the day of , A. D. 18 — in which he says that you are indebted to him Ifor work done and materials provided by the plaintiff for the defen- dant, at his request, as the case may be,] and you are required within days after receipt of this notice, to defend the said action, by causing an appearance to be entered for you in the said court, to the said action, and in default of your doing so, the said A. B. may, by leave of the court or a judge, proceed thereon to judgment and execution. The following are the particulars of the said A. B.'s claim, &c., &c. [signed] E. E., plaintiff's atty., [or in person.] CHAPTER 135. OF ■WITNESSES AND EVIDENCE AND THE PROOF OF WRITTEN DOCUMENTS. Commission 1. In any civil action, the court or a judge, or protho- siUoM' of lb?"" thonotary upon sufficient cause being shewn by affidavit, howi^suedrio! ™ay order a commission to issue for taking the depositions of witnesses residing out of the province, in such manner and under such restrictions as the court or judge or pro- thonotary may direct ; and the depositions so taken may TITLE XXXVI.] EVIDENCE. 671 be read iu evidenoe at the trial of the cause; and if the Chap. 135. parties in any cause pending in any court consent in writ- ing, to examine witnesses residing out of the province, whether by interrogatories or viva voce such consent and the proceedings had thereunder shall be as valid in all respects as if a commission had been sued out and the proceedings had thereunder, 2. Examination of witnesses residing abroad may be by whom*op°n- opened by the prothonotary of the court at the instance of ed, objections either party ; and either party may notify the other of their tike"; proceed- being so returned, and no objections to such examinations ^°^^ thereon. being read shall avail, unless taken within eight days next after such notice served; the party objecting shall be re- quired to specify his objections in writing, and the court or a judge, on summons, may then hear such objections and decide thereon. . 3. Where a court or tribunal of competent jurisdiction supreme court .J,, -ijT •• • ji- • may order ex- m any part ot her majesty s dominions, or m any toreign ammations of country, shall, in some proceeding before it, issue or dei°commi's"" authorize a commission or order for obtaining the testi- ooMts^Tteoad. mony of some person being within this province or the production of papers therein, it shall be lawful for the supreme court or a judge, if satisfied of the authenticity of the commission or order, and the propriety of the examination or production by rule or order, to direct the examination of the persons whom it is desired to examine, and the production of papers when required in the manner prescribed in the commission or order for examination, or in such other manner, and before such person and with such notice, as the court or a judge may direct. 4. In eivil causes depositions of witnesses who are Depositions of about to leave the province, or are aged, infirm or other- {o'^elfvrpro"' wise unable to - travel, may be taken before a judge or-^^fSj^^^^o'' commissioner, on due notice being given to the adverse taken.' party ; and any party, upon shewing sufficient cause by affidavit, may obtain from a judge or commissioner an order in such terms as he shall think fit, to compel an unwilling witness in such cases to give evidence before the judge or commissioner. 5. Where such witnesses reside in any other county when such than that in which the cause is to be tried, a judge or com- not reside in missioner on sufficient cause being shewn by affidavit, may cas^ispenling. give such order as he shall think fit for the depositions de bene esse of such witnesses, to be taken before a judge or. commissioner by interrogatories or otherwise. 6. In all cases of depositions to be taken before anv '^^'ofee of depo- • T ■• ,i,j ij- T ,• sitions to be judge or commissioner, at least twenty-tour hours notice given ; length in writing shall be given to the adverse party or to his n°de°e™"^"'^ ° attorney, where such party or his attorney resides within the county, and an additional twenty-four hours notice for every twentj^ wl^s that such party or his attorney shall 572 EVIDENCE. [PAKT iir.. Eefusal oi wit' ness to obey order for ex- amination a contempt of court. Writings and documents; what to be pro- duced. Depositions when to be read in evidence. Chap. 135. reside beyond the limits of tte county, and sucli notice^, shall in all cases contain the names of the witnesses to be- examined. 7. Where any rule or order shall be made for exami- nation of witnesses or production of papers under any of the provisions' of this chapter, and the rule or order together with a notice containing the time and place of attendance', signed by the person who is to take the exami- nation, shall have been duly served on the party to be examined, and be shall have been tendered his legal fees for attendance and travel, the refusal or neglect to obey any such rule or order shall be deemed a contempt of court, and may be punished by process of contempt. 8. ISfo witness shall be compelled under any rule or order under this chapter to produce any writing or docu- ment that he could not be compelled to prodiace on trial, nor to answer any question be would not be beunid to answer in court. 9. No deposition taken de bene esse to be used on triJalk in this province, shall be read in evidence without the; consent of the party against whom the same is offeredj, unless the judge shall be satisfied that the deponent is* dead, or beyond the jurisdiction, or unable from some- infirmity to attend the trial ; but in case of his being so satisfied, the deposition, certified under the hand of the judge or commissioner, shall, without proof of his signa- ture, be received and read ins evidence, saving all just exceptions. 10. No examinations of witines-S'es residing abroad or taken de bene esse shall be set aside by the court or any judge thereof, unless the party objecting shall laj^grounds by affidavit, which may be opposed as in other cases, and unless the court or judge shall be of opinion that the objections are not of a purely technical character, and that substantial justice requires that such objections should prevail, which shall be so expressed in the order. 11. In all causes in the supreme court, the plaintiff may with the declaration, and the defendant may Avith the plea, or either of them may at any other time deliver to the opposite party, or his attorney, provided such pai'ty, if not a body corporate, would be liable to be called and examined as a witness upon such matter, interrogatories in writing, upon any matter as to which discovery may be sought; and require such party, or in the case of a body corporate, any of the officers of such body corporate^ within ten days, to answer the qu^gtions in writing, by affidavit, to be sworn before and. at^(§^ifed by the court, a, judge, or commissioner, or justice of the peace, and to be subscribed by the party answering, and filed in the pro- thonotary's office, fmd notice thereof given to the attorney pn the opposite si^^ i and jvny party pr of&ce? pniittiDg> Examination.^ de bene gspc not to be set aside for techni eal objections. Interroga- tories may be delivered with declaration of plea. TITLE XXXVI.] EVIDENCE. 573 without jast cause, sufficiently to answer all questions as (hi ap. 135. to which, a discovery may be sought, within the above time, or such extended time as the court or a judge shall allow, shall be deemed to have committed a contempt of the court, and shall be liable to be proceeded against accordingly. 12. In case of omission, without just cause, to answer in raso of in- sufficiently such written interrogatories, it shall be lawful answer, party for the court or a judge at their discretion to direct an ™e''exara?ned'' oral examination of the interrogated party, as to such °""5'' points as they may direct, before a judge or commissioner; iindthe court or a judge may, by such rule or order, or any subsequent rule or order, command the attendance of such party before the person appointed to take such examina- tion, for the purpose of being orally examined as aforesaid, or the production of any writings or other documents to be mentioned in such rule or order, and may impose there- in such terms as to such examination, and the costs of the application, and the proceedings thereon, and otherwise, as to such court or judge shall seem just. 13. Such rule or order shall have the same force and orderfor omi effect, and may be proceeded upon, as nearly as may be, effeoTof^"°"' in like manner as an order made for the deposition de bene esse of witnesses about to leave the province, to be taken before a judge or commissioner, except that the answers to the interrogatories, or the oral examinations, shall be held to be taken absolutely, and not de bene esse, unless otherwise specially ordered. 14. The answers to the interrogatories tiled as afore- Answers may said, and the answers on the said oral examination, may be \laci^ '^^ ''^'" used as evidence taken under commission may be used, and without the party offering the same being precluded from contraverting or contradicting any part thereof. 15. Upon motions founded upon affidavits, it shall be Affidavits in lawful for either party, with leave of the court or a judge, mitler. °°^*^ to make affidavits in answer to the affidavits of the opposite party upon any new matter arising out of such affidavits, subject to all such rules as may hereafter be made respect- ing such affidavits. 16. Upon the hearing of any motion or summons, it court or judge shall be lawful for the court or a judge, at their discretion, doramentsto and upon such terms as they shall think reasonable, from an/w^'tnels'ls time to time, to order such documents as they mav think to be examined fit to be produced, and such witnesses as they may think necessary to appear and be examined viva voce, either be- fore such CQurt or judge, or before a commissioner, and upon heariug such evidence, or reading the report of such commissioner, to make such rule or order as may be just. 17. The court or a judge may, by such rule or ordei', or attJnd'ane™™' any subsequent rule or order, command the attendance of ductton^f"^™' the witnesses named therein, for the purpose of being fJocuments.- 574 BVIDBNCIi, [part III. Chap. 135. pi'ooeedlngn upoii order, Ac. Proceedings to be conducted as in examiua- tions de bono esse. Application by summons to compel exami- nation of party refusing to make affidavit. Production of documents in hands of oppo- i^ite party. Depositions to be returned to prothonotary ; how used, effect of. examined, or the production of any writings or other docu- ments to be mentioned in such rule or order ; and such rule or order shall be proceeded upon as nearly as may be, in the same manner as rules or orders made for the depo- sitions de bene esse of witne sses, to be taken before a judge or commissioner, are now proceeded upon, and it shall be lawful for the court, or judge, or commissioner, to adjourn the examination from time to time, as occasion may require ; and the proceedings upon such examination shall be conducted, and the depositions taken down, as nearly as may be in the mode now in use with respect to the viva voce examination of witnesses de bene esse when about to leave the province. 18. Any party to any civil action or other civil proceed- ings in the supreme court, requiring the affidavit of a person who refuses to make an affidavit, may apply by summons for an order to such person to appear and be ex- amined upon oath before a judge or commissioner, to whom it may be most convenient to refer such examination, as to the matter concerning which he has refused to make an affidavit ; and a judge may, if he think fit, make such order for the attendance of such person before the person therein appointed to take such examination, for the pur- pose of being examined as aforesaid, and for the produc- tion of any writings or documents to be mentioned in such order, and may thereupon impose such terms as to such examination, and the costs of the application and proceed- ings thereon, as he shall think fit. 19. Upon the application of either party to any cause or other civil proceeding in the supreme court, upon an affidavit of such party of his belief that any document, to the production of which he is entitled for the purpose of discovery or otherwise, is in the possession or power of the opposite party, it shall be lawful for the court or a judge to order that the party against whom such applica- tion is made, or if such party is a body corporate that some oflicer to be named of such body corporate, shall answer on afiidavit, stating what documents he has in his posses- sion or power relating to the matters in dispute, or what he knows as to the custody they are in, and whether he objects, and if so, on what grounds, to the production of such as are in his possession or power ; and upon such affidavits being made the court or judge maj' make such further order thereon as shall be just. 20. Depositions taken by virtue of the four next pre- ceding sections shall be carefully taken down by the ex- aminer, and by him be returned to and kept in the office of the prothonotary of the court, and office copies of such depositions may be given out and the depositions may be otherwise used in the same manner as in the case of depo- sitions now taken de bene esse of witnesses about to leave TITLE XXXVI.] , EVIDENCE. 675 the province, except that the depositions shall be held to Chap. 135. be taken absolutely, unless otherwise specially ordered. 21. It shall be lawful for any judge or commissioner, Report of judge authorized under any rule or order for taking examinations sioner. under the said four preceding sections, or under any rule or order for taking an oral examination of an interrogated party as aforesaid, and he is hereby required to make, if need be, a special report to the court touching such exami- nation, and the conduct or absence of any witness or other person thereon or relating thereto ; and the court is hereby authorized to institute such proceediugs, and make such order or orders upon such report as justice may require, and as may be instituted and made in any case of contempt of the court ; and the costs of every application for any of cations^ tS'^^e' the said rules or orders, and of the rules and orders and discretionary, the proceedings thereon, shall be in the discretion of the coart or a judge. 22. Either party in any civil action may exhibit to the writteh of - *^ , y »/ . »'.,, printed doeu- ad verse party or ms attorney, any written or printed docu- mentsmay te ment to be used at the trial of the cause, and require him admission"' within eight days to enter into a rule to admit the same ; and'tTow^glven; and if the party so required shall neglect or refuse so to ^°f^l^^ "'^^^ "*' do, and the judge before whom the issue is tried shall be of opinion that the instrument proved was necessary to support the cause of the party producing it, the party so neglecting or refusing shall be liable to pay the fees of the witnesses necessary for proving the same. 23. ISTo witnesses fees shall be allowed in any case costs of proof within the preceding section, to a party who shall have to be™i?aik)w- adduced in support of a issue, of which it was incumbent negT^ts ?o'ei- on him to approve the affirmative, any written or printed ^'^^'■^■ document which shall not have been exhibited a reason- able time before the trial or inquiry to the opposite party, unless sufficient cause shall be shewn on taxation, why the notice could not have been given. 24. No charge for preparing to prove any such docu- what costs of ment incurred before the service of the notice, or after an ment9°o be a"' offer by the adverse party to admit the same, shall be whal^'^Aot"'^ allowed, except those charges necessarily incurred in con- sequence of some act of the adverse party, after the service of notice and before the offer of admission. 25. In case of written documents exhibited as aforesaid meSlweJe not and not admitted, if the court or a judge who tried the S,'part™pro" cause or the judge who shall tax the costs, shall be of ™\^^^^^il opinion on hearing the parties, that the written documents "^^^ were not required on the trial, and that the party pro- ducing or proving them had not reasonable ground for believing they would be required, the [party proving the document shall pay the costs thereof; whatever may be the result of the cause. 576 EVIDENCI!- [part III.- Chap. 135. 26. Kotwitlistanding such writtetl dodtliiieiit may have If court think been required, if the court or the judge who tried the cause oiinJd to°admit °^ ^^^ J^^^S^ who may tax the costs, shall be of opinion oii dooumeSuSd hearing the parties, that the party declining to admit such cists^tXcosts document had reasonable and just grounds for declining, in cause. ^^^-^ p^j,(.y ^^xiAl uot be liable for the costs of provmg the written documents absolutely and in any result of the cause, but such costs shall be costs in the cause subject tc the ordinary rules. Proclamations, 27. All proclamations, treaties, and other acts of stated mtnt's'affldi- of any foreign state, or of any British colony, and all judg- lises^admited'* mcuts, dccrces, orders, and other judicial proceedings of &r''how°'"i'o- ^"^y court of justice in the United Kingdom of Great ved. °''' '"° Britain and Ireland, or in any foreign state, or in any British colony; and all affidavits, pleadings, and other legal documents, filed or deposited in any such court, may be proved in any court of justice, or before any person having, by law or by consent of parties authority to hear, receive and examine evidence, either by examined copies or by copies authenticated as hereinafter mentioned, that is to say : if the document sought to be proved be a pro- clamation, treaty, or other act of state, the authenticated copy to be admissible in evidence, must purport to be sealed with the seal of the foreign state or British colony to which the original document belongs ; and if the docu- ment sought to be proved be a judgment, decree, order or other judicial proceeding of any British, foreign, or colonial court, or an affidavit, pleading, or other legal document, filed or deposited in any such court, the authenticated copy, to be admissible in evidence, must purport to be sealed either with the seal of the said British, foreign, or colonial court to which the original document belongs, or in the event of such court having no seal, to be signed by the judge, or if there be more than one judge, by any one of the judges of the said court, and such judge shall attach to his signature a statement in writing on the said copy, that the court whereof he is a judge, has no seal ; but if any of the aforesaid authenticated copies shall purport to be sealed or signed as hereinbefore respectively directed, the same shall respectively be admitted in evidence in every case in which the original document could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signature, or of the truth of the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the person appearing to have made such signature and state- ment. Documents ad- 28. Evcrv documcut wMch, by any law now in force or" missible in evi- , „ j. \. ■ r ■ inn -,■•■,-,• dence in Eng- hcreatter to be m force, is or shall be admissible in evi- proofI)'*?gna- deuce of any particular in any court of justice in Eng- wLmus htre. land, or Wales, or Ireland, without proof of the seal or tiTLE XXXVI.] evidence: 577 stamp, or signature authenticatiDg the same, or of the Chap. 135. judicial or official character of the person appearing to have signed the same, shall be admitted in evidence to the same extent and for the same purposes, in any court of justice in this province, or before any person having therein, by law or by consent of parties, authority to hear, receive, and examine evidence, without proof of the seal, or stamp, or signature authenticating the same, or of the judicial or official character of the person appearing to have signed the same. 29. Copies of any document, writing, or proeeedins;, certified copies £1 J • , • ji • ■ n n 1° ■ T *5' Of papers filed nied in any court in this province, shall be received as evi- in court admis- dence to the same extent as the original — provided such dSoe!^ °^'' copies, be certified under the seal of the court, or by the proper officer under his hand. 30. All affidavits for the purpose of holding persons to Affidavits to bail in this province, or having relation to any judicial pro- toide*abroad, ceeding in any court of justice therein, purporting to be made before a judge of any court of justice in the United Kingdom, or in any foreign state, or in any British colony, if in other respects conformable to law and the practice of the court in which they are designed to be used, may, not- withstanding they are made before a judge of -a British, foreign, or colonial court, be received and acted upon, and shall have the same effect as if made before a judge or other lawful authority in this province ; provided the same purport to be sealed with the seal of the British, foreign, or colonial court, before one of the judges of which they purport to be made, or in the event of such court having no seal, provided the judge whose name is subscribed thereto, shall have attached to his signature a statement in writing, on the affidavit, that the court whereof he is a judge, has no seal; but if any such affidavit shall purport to be sealed and signed, or to be signed, without being sealed, as hereinbefore respectively directed, the same shall be respectively received and acted upon as aforesaid, and admitted in evidence in every court of this province, without any proof of the signature of the judge and seal of the court, where a seal is necessary, or of the signature, or of the truth of the statement attached thereto, where such signature and statement are alone required, or of the judicial character of the person appearing to have made such signature, or signature and statement respectively. Declarations now or hereafter made in conformity with, neoiarations and which shall have legal effect and operation in the place esIS^wS where the same may be made, under and by virture of an Sl'lam'e effloi act of the imperial parliament, passed in the fifth and '^®''^- sixth years of the reign of his late majesty King "William the fourth, chapter sixty-two, relating to the abolition of oaths in certain cases, and of any act in amendment thereof, shall have the same operation and effect in this 73 578 EVIDENCE. [PAET III. Ohap. 135. province as if authenticated under oath before the same officers before whom the declaration had been made, and if these officers had been authorized to administer such oath, eiarauons'&cr ^'^^^^ decds, evidence, acknowledgments, and decla- efflot^in^irea't I'^^ons, uoAV Or hereafter done, made, taken, or proved in Britain, Vrto Great Britain or Ireland, or any of her majesty's posses- have the same gj^j^g^ ^^j^j^ those forms of authentication and proof which shall be the legal mode of proof and authentication in those places, shall have the same force and effect in this province as if sworn to before the same persons or officers, by and before whom the proof and authentication may be made, and as if those persons or officers had power to administer an oath, fe™^^^!:!' ^^- Every register of, or declaration made in respect ships. of, any British ship, in pursuance of any of the acts rela- ting to the registry of British ships, may be proved in any court of justice, or before any person having, by law or by consent of parties, authority to hear, receive and examine evidence, either by the production of the original, or by an examined copy thereof, or by a copy thereof purporting to be certiiied under the hand of the person having the charge of the original, and which person is hereby required to furnish such certified copy to any person applying at a reasonable time for the same, upon payment of the sum of twenty cents ; and every register or copy of register, and also every certificate of registry granted under any of the acts relating to the registry of British vessels, and purport- ing to be signed as required by law, shall be received in evidence in any court of justice, or before any person hav- ing by law or by consent of parties, authority to hear, receive, and examine evidence, as presumptive proof of all the matter contained or recited in such register, when the register, or such copy thereof as aforesaid is produced, and of all the matters contained or recited in, or endorsed upon, such certificate of registry when such certificate is produced. for"gfvS|'faise ^^- ^^ ^W officcr authorized or required by this chapter certificate.'; to fumish any certified copies or extracts shall wilfully certify any document as being a true copy or extract, knowing that the same is not a true copy or extract, \_as the case may 6e,] he shall be guilty of a misdemeanor, and be liable upon conviction to imprisonment for any term not exceeding three years. togingTJou-'''^^ ^^- -"-^ ^^'^7 person shall forge the seal, stamp or signa- meiits referred turo of any documcut in this chapter mentioned or referred ter!° '^"^ '^^ to, or shall tender in evidence any such document with a false or counterfeit seal, stamp or signature thereto, know- ing the same to be false or counterfeit, he shall be guilty of felony, and shall, on conviction, be liable to imprison- ment for any term not exceeding three years nor less than TITLE XXXVI.] EVIDENCE. 579 one year ; and whenever any sucli document shall have Chap. 135. been admitted in evidence by virtue of this chapter, the court or person who shall have admitted the same may, at the request of any party against whom the same is so admitted in evidence, direct that the same shall be im- pounded and kept in the custody of some officer of the court or other person, for such period, and subject to such conditions as to the said court or person shall seem meet ; and every person Avho shall be charged with committing any offence under this chapter may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence may be laid and charged to have been committed in the county, district or place in which he shall be apprehended or be in custody ; and every accessory before or after the fact, to any such offence, may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence laid and charged to have been committed in any county, district or place in which the principal offender may be tried. 34. A copy of any grant of lands, or documents or any certified copies proceedings in her majesty's council respecting the titles admssfbie^as of lands, or filed in the provincial secretary's office, cer- «^"<''=»<=e- tified by the provincial secretary or clerk of the council, shall be received as evidence to the same extent as the original. 35. A copv of anv grant from the crown, or of any certified copy deed from the books of registry, certified under the hand received as eyi- of the registrar, or proved to be a true copy taken there- '*^°''®' from, shall be received as evidence in the absence of the original, if it shall be made to appear to the court, by affidavit, that such original is not in the possession or under the control of the party, and that he has enquired for, and been unable to procure the same. 36. The probate of a will, or a copy thereof, certified o^erHfied^"'' under the hand of the judge or registrar of probate, or copymaybere- proved to be a true copy of the original will when such "itllt "* ^^'' will has been recorded, shall be received as evidence of the original will in all causes ; but the court may, upon clue cause shewn upon affidavit,' order the original will to be produced in evidence, or may direct such other proof of the original will as under the circumstances may appear necessary or reasonable for testing the authenticity of the alleged original will and its unaltered condition, and the fidelity of the prepared copy. This section shall apply to wills and the probate and '^'"n^^'^uiari copies of wills proved elsewhere than in this province ; proved abroad. provided that the original wills shall have been deposited and the probate and copies granted in regularly constituted courts having jurisdiction over the proof of wills and administration of intestate estates or the custody of wills. 37. A party intending to avail himself of the two ^°'ifto"'o^^o- preceding sections must give notice in writing of such his site party. 580 EVIDENCE. [part III. Chap. 135. Certificate of registry of deeds, &o., to be received as evi- deuce of regis- try. Copy of grant. Plans certified by protliono- tary. Proof of instru' raents. Proof by com- parison of handwriting. Witness not incompetent from crime or interest. Competent witnesses. intention to the opposite party, at least ten days previous to the trial, with a schedule of the deeds or wills so intended to be given in evidence, and the books wherein the same are recorded ; but the judge may dispense with such notice if he be satisfied that no injustice has been done by the want thereof. The certificate of registry endorsed on any deed, docket of judgment or attachment, and signed by the registrar, shall be taken and allowed in all courts as evidence of the registry. 38. A copy of any duplicate original of a grant or of the registry of any grant, certified by the commissioner of crown lands, or by the registrar of deeds of any county where such grant is recorded, shall be received in evidence. 89. A certificate of the prothonotary at Halifax, on the plan of any township returned under the thirty-first sec- tion of chapter one hundred and thirteen .of the revised statutes, second series, " of the registry of deeds and in- cumbrances afi'ecting lands," shall be presumptive evidence that the same is the original plan which it is alleged to be in such certificate ; and such plan shall thereupon be re- ceived in evidence as such. 40. It shall not be necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite ; and such instrument may be proved by admission or otherwise, as if there had been no attesting witness thereto. 41. Comparison of a disputed writing with &uj writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise, of the writing in dispute. 42. 1^0 person shall be an incompetent witness by reason of incapacity from crime or from interest. 43. On the trial of any issue joined, or of any matter or question, or on any enquiry arising in any suit, action, or other proceeding in any court of justice, or before any person having by law or by consent of parties authority to hear, receive and examine evidence, the parties thereto, and the person in whose behalf any such suit, action, or other proceedings, may be brought or defended, and the husbands and wives of the parties thereto, and the person in whose behalf any such suit, action, or other proceeding may be brought or instituted, or opposed or defended, in- cluding the reputed father in bastardy causes, and the defendant in causes of petty trespass and assault, shall, except as hereinafter excepted, be competent and compel- lable to give evidence, either viva voce or by deposition according to the practice of the court, on behalf of either or any of the parties to the suit, action, or other proceed- ing. TITLE XXXVI.] EVIDENCE. 581 44. But nothing herein contained shall render any per- Chap. 135. son who, in any criminal proceeding, is charged with the incompetent commission of any indictable offence, or any offence pun- witnesses, ishable on summary conviction, other than those mentioned in preceding section, competent or compellable to give evidence for or against himself, or shall render any person compellable to answer any question tending to criminate himself; and nothing herein contained shall render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband in any criminal proceeding, or in any proceeding instituted in consequence of adultery. 45. Ifo husband shall be compellable to disclose any h"™'"""',^^; communication made to him by his wife during the mar- bandtowife.ic. riage, and no wife shall be compellable to disclose any cioVe°ci!'^ ''"" communication made to her by her husband during the marriage. 46. Nothing in the three next preceding sections, shall i\ot to apply to apply to any action, suit, proceeding or bill, in any court of ?n*conle''quence common law or court of marriage and divorce, instituted "^^^'^''^''y- in consequence of adultery. 47. A party producing a witness shall not be allowed to Party produc- impeach his credit by general evidence of bad character, to®impe°a^c^h ms but he may, in case the witness shall in the opinion of the denM* of bid judge, prove adverse, contradict him by other evidence, or character. by leave of the judge prove that he has made at other times a statement inconsistent with his present testimony ; but before such last mentioned proof can be given, the him brother"* circumstances of the siipposed statement sufficient to evidence. designate the particular occasion, must be mentioned to the witness and he must be asked -tvhether or not he has made such statements. 48. If a witness upon cross examination as to a former Evidence of.in- -,- -.■'■ ij. IT T. consistent statement made by him relative to tne subject matter of statement of the cause, and inconsistent with his present testimony, t^bl^rlorived. does not distinctly admit that he has made such statement, proof may be given that he did in fact make it, but before such proof can be given,'the circumstances of the sup- posed statement sufficient to designate the particular occasion, must be mentioned to the witness and he must be asked whether or not he has made such statement. 49. A witness may be cross-examined as to previous Examination of statements made by him in writing, or reduced into prevfous^stite- writing, relative to the subject matter of the cause, with- "ng.' '° ^^"' out such writing being shewn to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him : provided always that it shall be competent for the judge at any time during 582 EVIDENCE. [PAKT III. Chap. 135. the trial to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he shall think fit. wUn™ss"reiaSvi^ 50. A witucss in any cause may be questioned as to tion'oSme" whether he has been convicted of any felony or misde- meanor; and upon being so questioned, if he either deny the fact or refuse to answer, it shall be lawful for the opposite party to prove such conviction, and a certificate containing the substance and effect only, (omitting the formal part) of -the indictment and conviction for such offence, purporting to be signed by the clerk of the court or other officer having the custody of the records of the courts whCTe the offender was convicted, or by the deputy of such clerk or officer, (for which certificate a fee of one dollar and no more shall be demanded and taken) shall upon proof of the identity of the person, be sufficient evidence of the conviction, without proof of the signature or official character of the person appearing to have signed the same. Subpoena may 51. "Where a witncss in a cause resides more than five be issued by -irt it t n -n- ttt.. justice of peace miics irom the place wliere the trial is to be had, a iustice when witness /?,t • t n i j_ii_n resides more ot the peace may issue a subpcsna tor such person to attend distant^'^ ""'^^ at the trial thereof, and the same shall be in the usual form of a justice's subpoena, with the necessary alterations. Witness not 52. ISTo pcrson shall be obliged to attend or give evi- obliged to at- , . '^ , „ ° , . n ''• . tend; &c., until dcncc lu any cause before any court, judge, commissioner, tendered! '""^^ master. Or arbitrator, or other person authorized to take his evidence before he is tendered his legal fees for such attendance and necessary travel, mo^nyl'how*'" ^3. The testimony of a judge of the supreme court taken'when may be taken before any other iud^e or a commissioner, necessarily; . f, • xi i> -j, i ^ , absent from the lu the samc manner as in the case ot a witness about to county. leave the province; and the testimony may be used on the trial though the judge be not out of the province, if he shall be necessarily absent from the county on official business. Affirmation. 54. jf any persou called as a witness, or required or desiring to make an affidavit or deposition, shall refuse or be unwilling from alleged censcientious motives, to be sworn, it shall be lawful for the court or judge, or other presiding officer, or qualified persons to take affidavits or depositions, upon being satisfied of the sincerity of such objections, to permit such person, instead of being sworn, to make his solemn affirmation or declaration, in the words following, videlicit : "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 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. TITLE XXXVI.] EVIDENCE. 583 55. If any person makin gsucli solemn declaration or Chap. 136. affirmation shall wilfully, falsely, and corruptly affirm or penalty for af- declare any matter or thing which, if the same had been filing faiseiy. sworn in the usual form, would have amounted to wilful and corrupt perjury, every such person so oifending shall incur the same penalties as by the laws of this province are or may he enacted or provided against persons convicted of wilful and corrupt perjury. 56. Every court, judge, justice, officer, commissioner, efed tolSSuu' arbitrator, or other person now or hereafter having by law ister oaths, &a. Or by consent of parties, authority to hear, receive and ex- amine evidence, is hereby empowered to administer an oath to all such witnesses as are legally called before them respectively, and to administer an affirmation to such of them as are exempted from taking an oath, and shall attest their having administered such oath or affirmation by their respective signatures. 57. Anv person examined, or makins; deposition or af- ffson giving „ . •''-.. ' OJ- ,T-, false testimouy nrmation, or giving answers or evidence under authority guiity of per- of this chapter, who shall in his examination, deposition, •''"'^' affirmation, answers or evidence, wilfully and corruptly give any false testimony, or wilfully and corruptlj'- pervert or suppress the truth, shall be, and shall be deemed and taken to be, guilty of wilful and corrupt perjury. 58. Parties to a suit when entitled or compellable to be te^nTi'wUness- examined, shall be included under the term witnesses, and ^s." be within the meaning and object of this chapter. The term "commissioner" when used in this chapter shall "Commission-: include commissioners appointed for taking affidavits, and ^^^'" also commissioners and any other persons specially autho- rized under this chapter to take examinations, depositions, affirmations or answers. 59. In all cases of contempt by disobedience of any o™e?"lo°how rule or order made under authority of this chapter, any treated. judge may take cognizance of such contempt and issue attachment or other process of contempt and decide thereon, subject to appeal to the court as in cases of appeal from a judge at chambers; and nothing herein shall abridge the jurisdiction of the court over such contempts. OHAPTEE 136. OF JUEIES. 1. All persons not hereinafter exempted, or who may auaiifloatioa at not otherwise by law be exempted, who shall have resided ^''^'^ ^"""' twelve months within the county, and shall hold a freehold 584 juEiES. [PAKT in. Chap. 136. estate within the same, if within the county of Halifax of the yearly value of one hundred and twenty dollars, and if in any other county of the yearly value of sixty dollars, • or shall be possessed of a personal estate, if within the county of Halifax of the value of two thousand dollars, and if in any ottier county of the value of twelve hundred dollars, shall be qualified to serve as grand jurors for such county. S'petrt jMors. 2. All persons not hereinafter exempted, or who may not otherwise by law be exempted, whether liable to serve as grand jurors or not, who shall have resided twelve months within the county, and shall own property within the county to the value of eight hundred dollars, shall be qualified to serve as petit jurors for such county. ?mpted from 3. The members of the executive and legislative coun- furii?fn™pei- cils and of the house of assembly, and the officers thereof sons liable to while in scssiou, the receiver general, the financial secre- than onee in tary, and the secretary of the province, the surveyor general cepunsp'Jcilif of crowu lauds, and the clerks employed in their several cases. offices, the registrar of deeds, the officers of her majesty's courts, justices of the peace, members of the corporation of the city of Halifax, the officers composing the staft" of the' army, the clerks belonging to the several departments of the army, the officers and clerks belonging to and laborers employed in the naval yard, naval hospital estab- lishment, the victualling establishment, or her majesty's ordnance, or the departments of the customs, or excise, or post office, or provincial railroad; ministers, attornies, physicians, surgeons, keepers of light houses, millers, licensed ferrymen, teachers of academies, licensed school- masters, mail couriers, engine men and firemen, sworn electric telegraph operators, persons under twenty-one and above sixty years of age, and the cashiers or accountants and tellers actually employed in the several banks, shall be exempted from serving on juries ; and no person shall be liable to serve on grand or petit juries more than once in three years respectively, unless in cases where a new summons shall be issued for jurors to supply the place of iurors not attending as hereinafter directed. p^i^Ming and 4. The scsslous shall once in every alternate year from Hs™*hw 1p^ among their number appoint a committee of not less than pointed. three justiccs, resident in different sections of the county or district, for the purpose of preparing and revising the grand and petit jury lists of the county or district, and shall from time to time appoint others to act in the room of such as may die or be removed. S^tteef ac?es3 5. The Committee, having been sworn, shall have free *°6r3"fre'e° '"' ^'^ccss to all public papers and accounts, and shall prepare and revise the lists, and shall transmit copies thereof to the prothonotary. Title x.txvi.] jtatisg. 6S5 _ 6. The_ lists shall be valid if a majority of the jus- Chap. 136. tices appointed shall act in the compilation or return Lists vaud if thereof. majority of w ^^, -, committee act. 7. ihe list of grand jurors shall contain all the christian Lists of grand names, or one or more of the initials thereof, and the snr- iai^Damerad- names, of all those qualified to serve as grand jurors, their ditioM- Re- places of residence, trades, callings or employments, and whether senior or junior, or by any other appellation by which they may be usually called or known. 8. The list of petit jurors shall contain all the christian fJ^oLsult^par- names or one or more of the initials thereof, and the sur- tiouiara. names, of all those qualified to serve either as grand or petit jurors, their places of residence, trades, callings or employments, and whether senior or junior, or by any other appellation by which they may be usually called or known. 9. The court of general sessions in every county or General ses- district of this province, shall, from time to time, as they miSI tkenum- may think requisite, fi:x; and determine what number of bfsnmmoMd" such persons, qualified to serve as grand jurors for each of annually. the townships, settlements, or electoral districts, in the county or district, shall be annually summoned to serve as such jurors. 10. "When the lists of jurors shall have been completed {]st'stobe"'pMt- by the committee, a copy alphabetically arranged shall be ed; notice to be given by them to the clerk of the peace, and another copy Ic errors or omissions in . to the prothonotary, who shall forthwith after post up a copy of such list in their offices, respectively, and keep the same posted up for at least one month ; and such com- mittee, or a majority thereof, shall meet in the county or district court house, within two months from the last day of the sessions at which they were appointed, to revise such lists, a notice of the time of holding such meeting to be given on such lists so posted up, and shall hear and decide upon objections to the correctness of such lists, either as to names appearing thereon, or as to names omitted therefrom. 11. The committee shall thereupon forthwith furnish corrected lists the prothonotary with a copy of such lists so corrected and to prothraote-'^ signed by them, and the lists shall be held valid, notwith- omiSions°io. standing the omission of persons qualified or the insertion of the names of persons not qualified as grand or petit jurors, respectively. 12. The justices, in hereafter revising the jury lists. Lists of persons shall make a list of the names of those who, by reason of orald^e™" death or exemption, are to be struck out of the jury lists heretofore returned ; and also a list of the names to be added to sUch lists, and the same upon being duly returned shall be struck out and added accordingly ; and the same shall be considered a full revising of such jtiry lists, but the sessions or a judge of the supreme court may at any 74 586 JttfelBS. [pAbt 111. Chap. 136. Lists to be post- ed in prothono- tary's office; names draw:a to be marked. Remuneration to committee revising lists. Inserting names of in- competent or omitting com- petent persons m lists, &c. Where jurors have not been drawn for the current year. Form of revised lists. Designation of jurors to be written upon tickets, &c. Revising com- mittee to be chosen bienni- ally, duration of. Lists of petit jurors for Hali- fax sessions, how prepared. What distance from Halifax exempt. time it shall be deemed advisable, direct tlie revising com- mittee to make out and return full and fresh lists of jurors. 13. The list of jurors shall be kept posted up in the prothonotary's office, and when the juries are drawn to serve for each year, the prothonotary shall mark opposite to the name of each person the year he was drawn to serve and whether as a grand or petit juror. 14. The grand jury, in general sessions, shall vote annually a compensation of one dollar and fifty cents to each of the committee of justices who revise the lists as aforesaid, with traveUing fees at the rate of five cents per mile coming and returning ; and ten cents per folio for copies of the lists furnished by them. 15. Any justice appointed to revise such lists, who shall knowingly put any person thereon who is not qualified, or omit any person who is qualified, or who shall wilfully neglect his duty in any other respect, shall be liable to a penalty of not less than forty nor more than two hundred dollars. 16. In any county or district where grand or petit jurors have not been drawn for the current year, a special sessions may appoint a committee of justices to revise the lists of jurors, and after the same are revised in manner directed by this chapter, and returned by the committee to the prothonotary, he, together with the sheriff or his deputy, shall forthwith draw a jury or juries, as may be required, and the prothonotary shall issue venires for sum- moning the same ; and such lists need not be drawn in open court, or signed by a judge of the supreme court. 17. Revised lists of grand and petit jurors, hereafter to be prepared, shall be in the forms of the schedule hereto annexed. 18. The designations of jurors shall hereafter be written upon the tickets containing their names, and also upon the several panels and venires in the same way as they are upon the revised lists. 19. The committee of justices to revise the lists shall be chosen biennially, but shall continue in office until their successors are appointed. 20. The committee appointed for the covmty of Halifax shall also prepare and annually revise a list of those persons not qualified to serve as grand or petit jurors, and shall return such list, alphabetically arranged, to the clerk of the peace, which list shall be the list from which the petit juries for the sessions at Halifax shall be drawn ; and such petit juries shall be drawn, summoned and sworn in the same manner, and subject to the same rules and penalties as petit juries in the supreme court. 21. JN'o person living more than fifteen miles from the city of Halifax shall be placed on any list for the county of Halifax. TITLE XXXVI.] JURIES. 587 22. The inhabitants residing within the district of Saint Chap. 136. Mary's shall alone be liable to attend as jurors at the ses- Liability of per- sions held in the district, and they shall not be liable to ^"uhin^Sf attend as jurors at the sessions held at Guysborough ; but JJ^j{rTO'|g"°' nothing in this section shall be construed to exempt such grand jurors, persons from their liability to attend as jurors at the supreme court at G-uysborough. 23. The clerk of the peace for the district of Saint saint Mary's Mary's shall draw from the list a grand jury on the last jury^hwcTrawn day of the sittings or term of the sessions, to be summoned foi'*he sessions. to attend the next term or sittings of the court. 24. The prothonotary, as soon as possible after the re- ^^Xp^lu/furm-s turn of such lists, shall have the names of all persons to be placed by mentioned therein written on distinct and separate pieces m°5epai°ate™' of paper, so folded as to conceal the names thereon, and '^°^^^' shall place the same in separate boxes ; those names placed on the grand jury list being put into the grand jury box, and those on the petit jury list into the petit jury box. 25. During the sitting of the court on the last term in drawninl'smiT. each year, the prothonotary associated with two justices moned, appointed by the judge shall draw from the grand jury box in open court, and before drawing the petit jury, the number of names fixed and determined by the sessions or by the committees thereof, to serve as grand jurors for each township or settlement in such county or district during the ensuing year, being twenty-four in all, and shall there- upon make a list of such names as shall first be di'awn, setting aside the names of those who have served within two years then next preceding, which list shall be signed by the presiding judge ; and the prothonotary shall issue writs of venire facias for the summoning of such jurors, and shall deliver the same to the sheriff at least twenty days before the first term or sittings of the supreme court or general sessions at which such grand jury shall be bound to attend, and the sherifif shall thereupon cause such jurors to be summoned at least four days before the time appointed for their attendance. 26. The prothonotary for the county of _ Guysborough, |™boro'ugh' immediately after drawing the grand jury for the supreme ^1^!™^^^'^°^ court, shall draw in the usual mode from the apartments of the grand jury box allotted to those portions of the county not included in the district of Saint Mary's, a grand jury to attend at the sessions in Guysborough, who shall be summoned in the usual manner, and shall return the names of such grand jury into the box; such drawing shall not exempt them from serving as grand jurors at the supreme court, but they shall not be liable to sei've as jurors at the sessions oftener than once in three years. 27. When above twelve of the grand jury shall assem- Foreman of ble in court for the first time in each term, they shall fhosen""^^' °^ choose a foreman, who shall be foreman of such jury for 688 JURIES. [PAKT III. Chap. 136. the term, and such foreman and jury shall be sworn in the usual manner, howirawn'and 28. At cach term of the Supreme court the _ prothono- Bummoned. tary shall, in open court, draw from the petit jury box a number of names to form the panel of petit jurors for the ensuing term, and setting aside the names of all those who shall have served either as grand or petit jurors within two years then next preceding, or who shall then be serving or drawn as gi'and jurors, shall prepare a list containing the names of those first drawn, and have the same signed by the presiding judge, and shall issue writs of venire facias for the summoning thereof, and deliver the same to the sheriff at least twenty days before the ensuing term ; and the sheriff shall cause such jurors to be summoned at least four days before the time appointed for their attend- ance. Associate ju3 29. The associatcd justiccs may, in their discretion, be- tices, duty of. ^^^^ proceeding to draw any jury, require the prothonotary in their presence to examine and compare the slips in the jury boxes with the list in his possession. Majority of two 30. When twclve do not concur, a majority of two- jurors may'™'' tMrds of the grand jurors present at any general sessions Sentsf"^°^^°*' of the peace shall have power to make presentments and transact all other county business, provided that no grand Proviso. jury shall be composed of less than thirteen members. Court may; 31. In any civil cause, information, or indictment for a j'u^y.'^up'on'*' misdemeanor, the court, upon motion, may order a special motion. jury for the trial thereof upon sufiieient cause shewn on af& davit, and the court may order a special jury for the assessment of damages upon similar motion in cases where the assessment is to be made before them, and the judge may, at the final taxation of costs, order which party shall pay the cost of such special juries, including the costs of travel of such jurors. Special juries, 32. When Special juries are ordered the prothonotary ' ' shall draw thirty-six names from the petit jury box in civil cases, and forty-eight in cases of information or indictment for misdemeanor, setting aside the names of any persons then serving as grand jurors ; and the number having been reduced to eighteen in civil cases, and to twenty-four in cases of information or indictment, in the usual manner, they shall be summoned at least forty-eight hours before the time appointed- for their attendance. Petit juries; 33. There shall be returned a panel of tweuty-four petit Kof."* '"'''"" jurors to each short term in the county, and two panels of twenty-four petit jurors each, to each extended term in those counties where the term can be so extended. In Halifax the panel shall consist of thirty-six jurors. Petit juries for 34. There shall be two panels of jurors drawn and ^tMngsatHaii- gummoued for each sittings at Halifax, the first whereof shall be summoned for and bound to attend on the first TITLE XXJtVI.] JUEIES. 589 "Wednesday of sucli sittings, and thence until tlie second Chap. 136. Wednesday thereof, and the other shall be summoned for " and bound to attend on the second Wednesday thereof, and thence until the termination of the sittings, except at the Michaelmas sittings, when the first panel shall again attend on the third Wednesday for a week, and the respec- tive panels shall so continue to attend by alternate weeks until the termination of the sittings. 35. At each term of the supreme court at Halifax, the second;panei prothonotary in open court, in addition to drawing the IZgf-iww """ number of names as by the last section is directed to form 1"^^*™; 7'"- the ordmary panel ot petit jurors, shall also draw from the petit jury box a number of names to form a second panel of thirty-six petit jurors, for the trial of criminal causes at the then ensuing sittings, and the same course shall be pursued in preparing and signing the lists thereof, and in issuing and delivering writs of venir-e facias therefor, and in summoning such jurors, as is directed with respect to the first mentioned panel of petit jurors in and by the next preceding section. All jurors required to attend such sittings shall be subject to the penalties for non-attendance by this chapter established. 86. There shall be two panels of jurors drawn and what counties summoned for those counties in which the term extends blinds'' at'thei>'' beyond one week, except the counties of Antigonishe and IpeetiveiJ! ^^' Queens ; the first of which panels shall be summoned for and bound to attend on the first day of the term, and thence until the succeeding Monday, and the other shall be summoned for and bound to attend on the first Monday of such term, and] thence until the termination of the sit- tings, except in the county of Pictou, where the first panel shall be summoned for and bound to attend on the first day of the term and thence until the succeeding Thursday, for which day the second panel shall be summoned and bound to attend thence until the termination of the sittings. 37. A jury impannelled for the trial of a cause which Jury impannei- shall go over the time specified for the attendance of such be^dT^ch^?g°ed*.° jury, shall not on that account be discharged. 38. The whole panel of jurors shall be called on the Panel to be caii- first day on which they are bound to attend, and before day^b^lnt'^fu- any cause to be tried by a jury shall be proceeded in, and rorstobefined. all jurors not then in attendance shall be fined. 39. When the second panel shall not have been called second panel, upon to serve as a jury, their names shall be returned into ki^be"retu?ned the boxes as if not drawn. as not drawn, 40. If a sufficient number of grand or petit jurors do not^tte'?!?™'^ not attend, or if it is probable that a sufficient number may to be returned not attend, the names of those who do not attend shall be oaers to^be"" returned to the box as if they had not been drawn, and the forTh^Tith.'^ prothonotary shall draw the names of others liable to serve, and shall cause the sheriff immediately to summon 590 JURIES. [part III. Chap. 136. those whose names have been so drawn to attend forth- with. Grand jurors 41. Any grand juror who, having been duly summoned, attendaBce."°°' s^all uot attend, shall be fined not less than two nor more than eight dollars for each day's neglect. Fine for ab- 42. Any petit or special juror who shall not answer to juror, j^.g jiame when called, and by the affidavit of the sheriff shall appear to have been duly summoned, shall forfeit his day's pay, and for each day's absence shall pay a fine of two dollars. Fines, how le- 43. All fiucs for Bon-atteudance of jurors shall be levied when, and' to by Warrant of distress ; such warrant shall be made out whom payable. ^^^ delivered by the prothonotary to the sheriff immedi- ately after the calling of the jury each day, or at such other time as the court may order ; and the sheriff" shall proceed at once to enforce the same, and shall forthwith return to the prothonotary a statement of all fines received by him, which statement shall also set forth the reasons why such fines, if any, have not been collected ; and the sheriff shall at the same time pay over to the prothonotary the full amount by him received, deducting five per cent, and the prothonotary shall immediately lay such state- ment before the court, if then sitting, or otherwise at the next term thereof in the county ; and he shall also at the end of each term pay over the amount of fines collected, deducting five per cent, to the county treasurer for county purposes, and shall take his receipt therefor, which shall be laid before the court at its next sitting. Jurors, number 44. Every petit or special jury for the trial of civil ofmcmi cases, (jauscs, inquisitions and issues, bastardy cases, appeals, and certiorari, shall consist of nine persons, of whom seven, after at least four hours deliberation, may return a verdict ; and the petit jury for criminal trials, except as hereinbefore stated, shall consist of twelve persons who must be unanimous in their verdict. Jur*s not to be 45. The practice of keeping a j ury without meat, drink, food, 4o. or any other comfort until they agree upon their verdict, is abolished. Pay of jurors. 46. Each petit and special juror and talesman shall be entitled to receive and be paid the sum of fifty cents per day, for his actual attendance as a juror at the supreme court, and every petit and special juror, also ten cents per mile for every mile he shall necessarily travel from his place of residence to the court house ; such actual attend- ance and distance to be ascertained by the oath of the juror. List of jurors to 47. The prothouotary in each county shall, on the last wttE'^tfeYr^at- day of the sittings of the supreme court in each term, and tT^viu'^tob'e of the sittings of such court in Halifax, and also, at the !Sunt°"funds ^^^ ^^ *^^ ^^^^ week of the sittings in those counties couny u s. ^-j^^^,^ ^-j^^ sittiugs cau be extended, prepare and certify a TITLE XXXVI.] JURIES. 591 list of the jurors who actually attended such court, with Chap. 136. the numher of days attendance, and the actual travel of each juror respectively, and the amount to which each juror is entitled, and shall deliver such list to the presi- ding judge, who shall certify the same ; and the treasurer shall forthwith thereupon pay, out of the county funds, to each juror, the amount which such juror appears entitled to receive upon such list. 48. To provide a fuud towards the payment of jurors Fund to be under this chapter, the following fees shall be paid t)y ™ised by fees, plain tifls to the prothonotary, and by him into the county treasury, viz. : on the issuing of writ of mesne process, except in summary and subsummary suits, fifty cents, and on the swearing of every jury six dollars; the above fees to be taxed and allowed, and included in the costs in the cause. 49. The countv treasurer shall keep an account of all Accounts of ^ 'J ^ ^ ^ -t . receipts and receipts and payments under the two last sections, such ac- payments. count to be laid before the sessions with his other accounts. 50. The court or presiding judge may relieve any Jurors, how re juror from such fine, in whole or in part, on sufiicient fiulsl^ *^'°™ reason being shewn on oath, which, if in writing, may be made before a justice of the peace. 51. In all criminal trials four jurors may be perempto- p^rf o^f"|.own. rily challenged on the part of the crown, and eight jurors on the part of the prisoner or defendant. 52. In case of the illness of a juror after he shall have cfgeo^f^-JjUgg" been sworn in any civil cause, it shall be in the discretion of juror. of the presiding judge to allow the cause to proceed with- out him ; and the verdict shall be valid, provided seven of the remaining jurors shall concur therein. 53. The court or presiding judge may amend the lists Amendment of of jurors by striking out the names of persons not liable to vlded!^ ^ '"^° serve, or inserting the true name or addition of any person therein improperly designated x)i' described, or by adding the name of any qualified person brought to their know- ledge ; and the prothonotary shall keep a memorandum of all such amendments, and annually return the same to the clerk of the peace, to b'e laid before the revising justices. 54. The prothonotary shall cause the names of the special jury, special jurors to be written on distinct and similar pieces caued^ntria"'^ of paper, and having folded the same so as to conceal the names, and placed them in a box, shall proceed to draw the jury therefrom, and the nine or twelve, in civil or cri" minal cases respectively, whose names shall be first drawn, and who shall be in attendance, shall be the jury for the trial of the cause or assessment of damages. 55. The prothonotary shall cause the names of the petit ^owVrawn^knd jurors to be written on distinct and similar pieces of paper, called on trial. and having folded the same so as to conceal the names, and placed them in a box, shall, on the first cause being called, 592 JURIES. [part lit. Chap. 136. Tales IMay be prayed by eith- er party. Challenges without cause allowed. Duties of pro- tfeonotary to be performed by clerk of peace in certain Oath of grand jurors. proceed to draw the jury therefrom, and the nine or twelve in civil or criminal cases respectively, whose names shall be first drawn, and who shall be in attendance, and shall not be challenged, shall be the jury for the trial of the cause ; and when another cause shall be called, the protho- notary having returned into the box the names of those who have been challenged, or who have not appeared, shall proceed to draw the jury therefrom until all the names have been drawn, when the names of sucli as have served on previous juries shall be returned to the box, to be drawn in like manner. 56. When a full jury shall not appear, or appearing shall be challenged, or otherwise prove deficient, a tales de circumstaniibus shall, at the instance of either party in civil causes, and in all criminal causes except treason or mur- der, be awarded and returned immediately. 57. In all civil causes, informations, and indictments for misdemeanors, either party may peremptorily challenge, if in Halifax four, if in any other county three, of the jurors or talesmen. 58. The duties imposed by this chapter on the pri)tho- notary shall be performed by the clerk of the peace where necessarily devolving on him. 59. The oath of grand jurors in sessions shall hereafter be as follows : You do swear that you will well and faithfully discharge the duties devolving on you as [foreman, or grand juror,'] for the county of , to the best of your knowledge and ability. So help you God. SCHEDULBi County of ■ The return of revising magistrates, of ^persons qualifitd to serve as grand or petit jurors. Township or settlement. Christian and surname at full length, and whether senior or junior. Trade, calling, or employment. Appellation— by which knoWn; TITLE XXXVI.] INSOLVENT DEBTOR^. 593 Chap. 137. CHAPTER 137. — T OF THE RELIEF OF INSOLVENT DEBTORS. 1. Commissioners for eiving relief to insolvent debtors ':°'!^\fi°^Z^ .o o . appointed, now. snaii be appointed by the governor m council. 2. "Where any person imprisoned upon any writ of hibiritition''' mesne process, execution or attachment for non-payment ana schedule of money, issuing out of the supreme court, shall desire to ^°°®^* ■ take the benefit of this chapter, he shall exhibit a petition to a judge of the supreme court, or to two commissioners, praying for his discharge. The petition shall be accompa- nied by a schedule of all the property, real and personal, of the debtor, of all debts due or growing due to him, and of all securities by him held, which might by any possi' bility be made available, or which might become assets in tke hands of his representatives, and also, so far as the same can be obtained by the debtor, a statement showing the amount of his liabilities. 3. The judge or commissioners shall thereupon forth- th™^pon to with issue a summons calling upon the creditor at whose "sue. suit the debtor is imprisoned, at a certain time or place to be therein named, to show cause why. such prisoner should not be discharged. 4. True copies of the summons and schedule shall be ^"oPfgj^l'i^he. served on the creditor, his attorney or agent, or where a duie, how «er- debtor is imprisoned at the suit of the crown, on the dite onier'^i" attorney general, at least forty-eight hours before the time proportioiedto appointed for shewing cause ; and where the creditor, his distance. attorney or agent, or the attorney general, shall reside more than twenty miles from the place so appointed, twenty-four hours additional shall be allowed for every additional twenty miles. The service of such copies, if not admitted, must be proved on oath by the person serving the same, which oath may be administered by a justice of the peace, and a further time may be allowed for the examination, in the discretion of the judge or commissioners, where the creditor himself has not been served. 5. In cases where the insolvent debtor is imprisoned ^"^4°* h^e under process issued out of a court of justices of the P'»|5*J^j'^i*°" peace, or that of any stipendiary magistrate, the notice cales out of required by the next preceding section may, in cases where 4"c!''°^^ °°"''' the plaintiff is not resident in the county, be served upon the agent at whose instance the process was issued. If there be no agent within the county, and if the plaintiff's place of residence be out of the province or unknown, the notice may be left with the justice or stipendiary magis- trate, whose name is first subscribed to the process, and the same shall be considered a service upon the plaintiff; 75 594 INSOLVENT DEBTORS. [PART III. Ohap. 137. but in the last case the notice shall he left with the justice or stipendiary magistrate at least ten days before the day named for bringing up the insolvent, mastered to**" 6. At the time appointed the jiidge or commissioners qufiSf' ^^ ^^' s^^U) if desijed by the creditor, administer an oath to the debtor in the following form : "I, A. B., do swear that I will true answer make to all such questions as shall be asked me on this examination." ?wL?L?f= 7. The iudffe or commissioners shall give an order for cnarge upon as- Jo o signment made the discharsTe of the debtor, unless m the cases hereafter and oath taken; • ^ -i f ,i ii/j i- • ,, form of oath; provided lor, upon the debtor s making an assignment to be"requi?°d'?n'' the Creditor, in trust for the payment of the debt, of his proee°si!"^^°'' real and personal property, upon his taking and subscribing an oath to the following effect : " I, A. B., do swear that the schedule annexed to my petition contains a true account of all the real and personal estate which I or any person in trust for me at the time of my petition had, or now have, or may hereafter have, except the wearing apparel and bedding for me and my family, and the tools or instruments of my trade or calling, not exceeding forty dollars in the whole ; and that I have not since my imprisonment or before conveyed in trust for myself, or otherwise except as in such schedule men- tioned, any part of my property whereby to defraud any of my creditors. So help me God." The taking of which oath may be waived by the cre- ditor; and in case of imprisonment under mesne process, if the judge or commissioners are satisfied of the exist- ence and amount of the debt, the debtor shall sign a confession of judgment therefor, and shall do such other acts as the judge or commissioners shall direct. fuK of "the *^^ ^- "^^lien a debtor is imprisoned at the suit of §the evovvn howdis- ci'own, and the judge or commissioners are satisfied of the " '"'®'' ■ insolvency of such debtor, he or they shall certify the same, together with an inventory of all the property of the debtor, and the governor may thereupon by warrant under his hand and seal, order the attorney general to assent on behalf of her majesty to' the discharge of the insolvent, either with or without an assignment of his property. be'remLTd ^- ^^ ^hc Creditor, or in his absence his attorney or onafttdavit. agcut, shall forthwith, in the presence of the judge or commissioners, make an affidavit in writing, stating that he has good reason to be dissatisfied with the account given, and believes that the debtor has not disclosed the whole truth, or has other property than that by him admitted, the judge or commissioners shall remand the debtor, and appoint another day for the further hearing of the matter, and shall on that day again meet and discharge or remand the debtor, or make such further ©rder as the justice of the case may require. TITLE XXXVI.] INSOLVENT DEBTOES. 595 10. When upon the examination of the debtor, or of Chap. 137. any witnesses that may be produced on either side, and in cas.es of which witnesses shall be bound to attend on subpoena as mty'^be'^reman- in actions pending in the supreme court, the d-ebt ■ shall j;eclfor_apCTiod appear to have been frauduently contracted, or any fi'audu- one year, with- lent circumstances have occurred in respect of such debt, °an fimlts^"" °'' or in respect of the delay of payment thereof, or in respect of the conduct of the debtor with regard to the disposi- , tion of his property, or in cases of tort where the judge or commissioners shall be of opinion, that such tort was wilful and malicious, the judge or commissioners may remand the debtor to be confined without the privilege of jail limits, for such time under one year as he or they shall deem pro- per under the circumstances ; at the end of which time the debtor shall be discharged on making the affidavit and assignment of his property before a judge, or any two commissioners. 11. "Where the judge or commissioners shall remand wh™ remand- the debtor for fraud, such judge or commissioners shall witnesses fees tax the fees of witnesses attending on behalf of the creditoi', IgSnJf albtor. and if not paid, shall remand the debtor for such further period as he or they may deem right. 12. Where the debtor is imprisoned under a capias or ^™ i^eiieTO^m execution issued by a iustice or iustices of the peace, any case of process , -J.- 1 11 J.^ ■ i. i issuing out of two justices shall possess the same powers m respect to justices court. the relief of insolvent debtors as a judge. 13. In cases where the hearing shall be had before ^pp®^> *°eit^fer commissioners or justices of the peace, the debtor shall party. be entitled to an appeal; and if the creditor, or in his absence his attorney or agent, shall demand an appeal, and shall make an affidavit in writing that he is dissatisfied with the decision, and that the appeal is not made for the purpose of delay only, but that substantial justice may be done him therein, or to that efii'ect, the commissioners or justices shall grant such appeal and remand the debtor. 14. The supreme court shall be the court of appeal, ajSgethereo*; if it shall be sitting within the same county at the time ^ong^Ptg^'bi the the order appealed from was made, or if such sitting shall court of appeal. be held within ten days from the making of such order. When such shall not be the case, then any judge of the supreme court, if within such county ; and in case a judge shall not be present, then a special sessions of the peace shall be the court of appeal. The special sessions shall be summoned by the prothonotary and be held within three days, and shall consist of any three justices of such county not concerned in the making of the order. 15. The court of appeal shall hear and determine such g°urfof°a^*'lai appeal, and make such orders therein from time to time °° as it shall deem proper, such orders being not inconsistent with this chapter. 596 WEIT OP DOWBE. [part III. Chap. 138. Papers to be re- turned to the Biipreme court. Prisoner to be discharged by order. Property of debtor liable for debt, after his dischai'ge. SherifFs fees, who liable therefor on a discharge. 16. The judge, commissioners, justices, and court of appeal, shall return to the supreme court of the county all the papers connected with their proceedings on such applications and appeals. 17. Upon receiving an order to that effect from the judge, commissioners, justices or court of appeal, the officer in whose custody such prisoner shall be, shall dis- charge him therefrom as regards the suit expressed in the order. 18. "Where any person shall be discharged under the provisions of this chapter, any property owned by him at the time of the judgment, or subsequently acquired, and not in the possession of a bona fide holder without notice, may nevertheless be levied upon for the debt under execu- tion issued on the same judgment. 19. "When any person shall be discharged under the provisions in this chapter the party at whose suit he has been committed to jail, shall be liable to pay the sheriff his fees for the service, return and travel necessary in serv- ing the process, under which the party was arrested. TITLE XXXVII. OF ACTIONS RELATING TO REAL PROPERTY. OHAPTEE 138. OP THE WRIT OP DOWER. Widow entitled to sue for dower when not as- signed within one month af- ter demand. Writ to be in the form here- tofore used. Damage may be assigned for withholding dower. Form of writ of seisin. Dower, how set forth. 1. "When the heir or other person having the freehold shall not, within one month next after demand made, assign to the widow her reasonable dower, she may sue for and recover the same by writ of dower. 2. The writ of dower shall be, as near as may be, in the form heretofore used. 3. Upon judgment being given for the widow, reason- able damages shall be assigned to her from the time of the demand made. 4. "Writs of seisin thereon shall be, as near as may be, in the forms heretofore used. 5. The officer to whom the writ is directed shall cause the dower to be set forth by five freeholders of the neigh- borhood, three of whom at least shall concur, who shall be sworn before a justice of the peace, to set forth the same impartially, without favor or affection, and as conveniently as may be. TITLE XXXVII.] PARTITION OP LANDS. 597 6. Where no division can be made by metes or bounds, Chap. 139. the widow shall be endowed in a special manner as of a of special en- third part of the rents or otherwise. where^priperty 7. A woman endowed of lands shall not commit or indivisible. / suffer waste thereon, but shall maintain the buildings with Mmmitted'oi^^ the fences and appurtenances in good repair, during her offered. term. CHAPTER 139. OF THE PARTITION OF LANDS. 1. All persons holding lands as joint tenants, coparce- ^^ as"°°com-'' ners or tenants in common, may be compelled to divide mon law or un- the same, either by writ of partition at the common law, te^r"; * "^ ° *^' or in the manner provided in this chapter. 2. Any one or more of the persons so holding lands to°commeMed may apply, by petition to the supreme court for the county g^pr^^e'coui-t". where the lands lie, for a partition of the same, and such court may cause partition to be made accordingly ; and the shares of the petitioners shall be set off and assigned to them, and the residue of the premises shall remain for the persons entitled thereto, subject to a future partition among them if there is more than one person so entitled. 3. Such petition may be maintained by any person who Petition, by has an estate in possession, but not by one who is entitled tlin^.™"'"' only to a remainder or reversion. 4. No tenant for any term of years, unless twenty years ^^^i^^^^^'^' thereof at the least remain unexpired, shall maintain such a petition against any tenant of the freehold ; but when two or more persons hold jointly or in common, as tenants for any term of years, either of them may have his share set off" and divided from the others in the same manner as if they had all been tenants of the freehold. 5. Such partition between two or more tenants for Duration of years shall continue in force only so long as their estates tweontenlnt's^' endure, and shall not affect the premises when they revert f'^^ years. to the respective landlords or reversioners. 6. Every petition for a partition shall set forth the rights contents of pe- and titles, so far as known to the petitioner, of all persons ments to'beV interested in the premises who would be bound by the ^°t^gs. "' *°^ partition, whether they have an estate of inheritance, or for life, or years, and whether it be an estate in possession or in remainder or reversion, and whether vested or con- tingent ; and if the petitioner holds an estate for life or years, the person entitled to the remainder or reversion after his estate shall be considered as one of the persons so 598 PARTITION OP LANDS. [part III. Chap. 139. Peiition to be filed, a sum- monfl to issue and be served with a copy of petition; rule to plead, &c. as if it were a de- claration. Proceedings' where some parties are ab- sent. &G. Where a party fails to appear the court may order further notice. Proceedings where it ap- pears that a party out of the province has not had an op- portunity o.f ap- pearing. Guardians may he appointed. Defendants may appear jointly or sepa- rately, and pleadings, ic, may be had as in other cases." interested, and shall be entitled to notice accordingly; sucli petition or any subsequent proceeding had thereon may be amended at any time upon such terms as the court or a judge may impose. 7. The petition shall be filed in the same manner as a declaration, and a summons to a-ppear and answer thereto shall be signed by the prothonotary, and a copy thereof with a copy of such petition, accompanied by a rule .to plead and the usual notices, shall be served on each of the parties named in the petition as interested in the premises, if they shall be found within the province, the like number of days as required in ordinary writs. 8. If any of the persons so named as interested are absent from the province, or if there are persons interested in the premises, and who would be bound by the partition whose names are unknown to the petitioner, the court or a judge thereof shall order notice to be given to the persons interested who are so absent or unknown, by a publication of the petition or of the substance thereof, with the order of the court or a judge thereon, in one or more newspapers to be designated in the order, or by delivering to such absent party an attested copy of the petition and order, or in such other manner as such court or judge shall consider to be most proper and effectual. 9. If any person entitled to notice shall fail to appear, and if the service of the summons or other notice to him shall appear to the court to have been insufficient, the court or a judge may order such further notice as shall be thought proper. 10. If in any stage of the proceedings it shall appear to the court that any person interested, whether named in the petition or not, is out of the province, and has not had opportunity to appear and answer to the suit, it shall be continued from term to term, until sufficient time has been allowed to enable him to appear and answer thereto. 11. The court or a judge may assign a guardian for the suit for any infant or insane person who is interested in the premises, in the same manner as a guardian is admitted for an infant plaintiff or defendant at common law. 12. Any person interested in the premises of which partition is prayed for, may appear and answer to the petition, and may plead either separately or jointly with any other defendants, any matter tending to show that the petitioner ought not to have partition as prayed for, either in whole or in part ; and the replication and further pleadings shall be conducted as in other actions until issue is joined, which shall be tried and determined as in other cases ; all such pleadings to be filed and served in the same way as the pleadings in declaration suits, and notices of trial to be given in like manner. TITLE XXXVII.] PARTITION OP LANDS. 699 13. If any person who is not named in the petition Chap.. 139. shall appear and plead as a defendant, the petitioner may Replication reply that such person has no estate or interest in the lands right^o appS described in the petition, and may pray judgment if he and defend is shall be admitted to object to the petition ; — and the petitioner niiay in the same replication plead over in answer to such plea any other matter in like manner as he might have done if he had not disputed the defendant's right to appear. 14. If upon such a replication it shall appear that the y™reo^n.'°'^ defendant has no estate or interest in the lands, the matter of his plea or objection shall be no further inquired of. 16. If upon the trial of any issue of law or of fact it ^ow regulated, shall appear that the petitioner is entitled to have partition as prayed for, he shall recover his costs of such trial against the party who objected thereto, and shall have execution therefor in the usual form ; but if such issue is found or decided against him, in whole or in part, the adverse party shall recover against him the costs of the trial and shall have execution accordingly, and judgment may notwithstanding be entered for th^ petitioner to have partition and to ■ have assigned to him such part of the premises, if any, as he shall be entitled to. 16. If the defendant shall make default, or if upon Proceedinga in such trial it shall appear that the petitioner is entitled to faui?; mie for have partition, whether for the share or proportion claimed p^^it'oii here- in his petition or for a less share, a rule that partition shall be made shall pass, but the court shall have the same power of setting aside defaults and of granting new trials as in other cases. 17. When such rule shall have passed, the court shall commissioners - .,T T-j,j.T -• J appointed to appoint three dismterested persons as commissioners, to rnake partition make partition and to set off to the petitioners the shares "°'^^'' ™'®' belonging to them, which shall be expressed in the rule in that behalf. 18. If there are several petitioners they may have their Petitioners shares set ott together, or the share ot each one may be shares set off set off in severalty at their election. iateiy^"' ^^^'^' 19. The commissioners, before proceeding to the execu- commissioners tion of their duties, shall be sworn before any justice, ^^°"'*^™™' faithfully and impartially to perform the same ; a certifi- cate of which oath shall be made on the warrant by the person who administered it. 20. The commissioners shall give sufficient notice of commissioners the time and place appointed for making the partition to o°f Smeand™ all persona interested therein, who are known and within uonf"^ '""''" the province, that they may be present if they see fit. 21. Tbe three commissioners shall meet for the per- Tiie^tiiree com- formance of any of their duties, but the acts of any two shaii mett, but of them shall be valid. tole'tifi. '^° 22. When the premises of which partition is demanded, Partition, how 600 PARTITION OF LANDS. [PART III. Chap. 139. are sucli as cannot be divided without damage to the own- effected where Gts, OP when any specific part of the estate is of greater cannof weif'be value than either party's share, and cannot be divided with- divided. out damage to the owners, the whole estate, or the part thereof so incapable of division, may be set off to any one of the parties who will accept it, he paying or securing to any one or more of the others, such sums of money as the commissioners shall award, to make the partition just and equal. But the partition in such case shall not be estab- lished by the court until all the sums so awarded shall be paid to the parties entitled thereto, or secured to their satisfaction, samesubjeci. 23. In the casc mentioned in the preceding section, the commissioners instead of setting off the premises, or a part thereof, in the manner therein provided, may assign the exclusive occupancy and enjoyment of the whole or the part, as the case may be, to each of the parties alternately, for certain specified times, in proportion to their respective interests therein. ftir^misc'Sct 24. When the whole or any specific part of the pre- Th'e^eMius'iTe ^i^^s is assigned in the manner provided in the preceding occupancy. scctiou, the pcrsou entitled for the time being to the ex- clusive occupancy, shall be liable to his co-tenants for any injury to the premises occasioned by his misconduct, in like manner and to the like extent as a tenant for years under a common lease without express covenants would be to his landlord ; and the other tenants in common may have their remedy therefor against him by action on the case, either jointly or severally at their election. Liabilities in 25. "Whilst any estate is in the exclusive occupancv of case of sole j j n i • , t c'' occupancy by any co-tcuant under such an assignment as before men- MmmSn!'' '° tioncd, he shall be entitled to the same remedy against any person who shall trespass upon or otherwise injure the pre- mises as if he held the same under . a lease for the same term for which they were so assigned to him ; and he and all the other tenants in common shall also be entitled to recover against the wrong doer such other and further damages as they shall have sustained by the same trespass or injury, in like manner as if the premises had been leased by them for such term; and all joint damages re- covered by any such tenants in common, by force of this or the preceding section, shall be apportioned and divided among them, according to their respective rights, by the court in which the judgment is recovered. retoM^foT" ^^' '^^® commissioners shall make a return of their made for con- proceedings under their hands, together with their warrant, thfoourtiwhen to the court, and if their proceedings are confirmed by the motZfree^!- court, judgment shall be thereupon rendered that the terod. partition so made be final ; and the return shall then be filed, and a certified copy thereof be recorded, in the regis- try of deeds in the county where the lands lie. 'XllLB i;XXVII.i PARTITION OF LANDS. 601 27. The court for any sufEcient reason shewn may set Chap. 139. aside the return and commit the case anew to the same or Return may be to other commissioners to be appointed, whereupon the ne';v'''pj.o'!o"d-''' same proceedings shall be had as above directed. ing^ h"'i- 28. The final iudffment confirming and establishina: the Fmaijudgment ,.,. ini ^1. , Ti • 1 , -I ,-\ rP upon \\hom partition shall be conclusive as to all rights, both of pro- coucinaive. perty and possession, of all parties and privies to the judgment, including all persons who might by law have appeared and answered to the petition, except as is here- after provided. 29. If any person who Was a part owner with the peti- font from the'^" tioners, and for whom a share is left upon the partition, province, for -,-,,', ,j.,T • 1 ,1 '^ ^ ,■ whom a share snouid be out ot the province when the summons or notice was left, may to him is served, and should not return in time to appear tKyearTfor and answer to the suit, he may, at any time within three a new partition, years after the final judgment, apply to the court for a new partition of the premises. 30. If upon such an application, and after hearing of all f^tice^re^uh'o parties interested therein, it shall appear to the court that it,'oider a new the share left for the applicant was less than he was entitled ^" ' '°°' to, or that the part left for him was not at the time of the partition equal in value to his share of the premises, the court may order a new partition thereof, which shall be made in the manner before provided. 31. In such new partition the commissioners shall not commissionera ., -, ^ ,... „T ,, . duty on such be required to make a new division of the whole premises, new partition. but they may take from any one share or shares and add to any other or others so much as shall in their judgment be necessary to make the partition just and equal, estima- ting the whole as in the state in which it was when first divided ; or if an equal partition of the lands cannot be made without inconvenience to the owners, the commis- sioners may award money to be paid by one party to another as before provided, to equalize the shares. 32. If after the first partition, any improvement shall improyements •t T ^ J. r J.T • 1 • 1 1 J.1 to EO consider- have been made on any part of the premises, which, by the ed in new par- new partition, shall be taken from the share of the party ceedmgf'L^^"' who made the improvements, he shall be entitled to com- ™'='^ °^^^- pensation therefor, to be estimated and awarded by the commissioners, and to be paid by the party to whom such part of the premises shall be assigned on the new parti- tion ; and the court may order execution therefor in the usual form. 33. If any person who has not appeared and answered pf^ies^tothe to the petition for partition, shall claim to hold in severalty Pf'''j^''},°oi'd'"th'e" the premises therein mentioned, or any part thereof, he p^rfmises in ee- shall not be concluded by the judgment for partition, but tound^'bTtho may bring his action for the land claimed by him against JJ^af^teke "pro- any or all of the petitioners or defendants, or of the per- ^^j^^^^^^^as in sons holding under them as the case may require, within 76 602 PARTITION OF LANDS. [PART III. _ Chap. 139. the same time in which he might have brought it if no such judgment for partition had been rendered. applIrinVbut 34. when any person who has not appeared and claiming 'a auswcrcd to the petition shall claim the share that was sliare assigned .^ -.-Kr. r- ,-i li. to a part owner, assigned to, Or lett for any of the supposed part o-«ners m by^tiifpaX*^ the judgment for partition, he shall be concluded by the have^'mSn judgment so far as it respects the partition and the assign- for the share, mcnt of the shares, in like manner as if he had been a party to that suit ; but he shall not be prevented thereby from bringing his action for the share claimed by him against the person to whom it was assigned, or for whom it was left. Action in such 35. The actiou in such case shall be brought against against°wiiom the tenant in possession in like manner as if the plaintiff brought. j^^^i originally claimed the specific piece of land demanded, instead of an undivided part of the whole land _; and it may be brought within the same time in which it might have been brought if no such judgment for partition had been rendered. whSt^tw"® per- ^^- ^^ ^^^ °^' T^ove persous appear as defendants claim- sons claim the inff the Same share of the premises to be divided, it shall same share be- ^ -, .n-i ,1- i-i- fore division, uot DC uccessary to dccide upon their respective claims, except only for the purpose of determining which of them shall be admitted to appear and plead in the suit; and if partition is made, the share so claimed shall be left for whichever of the parties shall prove to be entitled to it, in a suit to be thereafter brought between themselves. The defendant 37. If {^ gucj^ a casc it shall be dccidcd in the original against whom .,p •• i ,.. ^ -. ..® judgment on suit lor partition, upou the replication ot the petitioners |ile?r"hin°nJt Or Otherwise, that either of the defendants is not entitled fhei?eby'fr'lm ^0 the sharc that he claims, he shall be concluded by the contestin°"his judgment SO far as it respects the partition and the assign- right with the ment of the shares ; but he shall not be prevented thereby from bringing his action for the share claimed by him against the other claimant thereof, in the manner provided in the three preceding sections. Bigiitsof»par- 38. If any person who has not ajDpeared and answered ing°whCTe^\'he as abovc shall claim any part of the premises mentioned known ^OT^ a?-°' i^ the petition, as a part owner with those who were parties Lf^etSd'' by the ^° *^^* ^^^^^ oj" ^^7 ^^ them, and if the part or share so partition judg- claimed was not known or not allowed and left for him in the process for partition, he shall be concluded by the judgment so far as it respects the partition ; but he shall not be prevented thereby from bringing an action for the share or proportion claimed by him, against each of the persons who shall hold any part of the premises under the judgment for partition, ^uch^casirhow . 3^- If *^6 plaintiff shall prevail in the case last men- and against tioued, he shall uot be entitled to demand a new partition whom obtainea. n i-\ -\ i • t,i iti .-^ , 01 the whole premises, but he shall recover against each of the persons holding under the judgment for partition TITLE XXXVII.J PARTITION OP LANDS. 603 the same proportion or share of the part held by him that Chap. 139. the plaintiif was entitled to out of the whole premises before the partition thereof. 40. If after making of partition it shall appear that any RisWs.of heir person for whom a share was left or to whom a share was where, after assigned, had died before such partition was made, the heir shaif'appeaV or devisee of such deceased person shall not by reason of tOT'oi^teltetor' such heir or devisee having been a party to the suit, either ^^^titkfn"'^ as a petitioner or as a defendant, be barred from claiming affected.' the share that belonged to the deceased person ; but the heir or devisee in such case shall have the same rights and the same remedies in all respects as if such heir or devisee had not been a party to the suit, and had not notice of the pendency thereof. 41. If any person to, or -for whom any share shall have Eemedj; whers 1 -11,. .T " f, .. in a party IS evict- been assigned or leit upon any judgment for partition, shall ed by a person para- be evicted thereof, by any person, who at the time of the mounftuie'^' partition, had a title thereto paramount to the title of those who were parties to the suit for partition, the person so evicted shall be entitled to a new partition of the residue, in like manner as if the former partition had not been made. 42. Any person having a mortgage, attachment,, or Lienbymort- other lien upon the share of any part owner, shall be con- mlnt°how^af-' eluded by the judgment, so far as it respects the partition [udgment. '^^ and the assignment of the shares ; but his lien shall remain in full force upon the part that shall be assigned or left for such part owner, 48. In the case of the death of any party in a petition suit not to for partition, the suit need not abate, but may be conducted death of apar- and prosecuted to final judgment, under such rules and p^i"f"on'*°°* orders for bringing in the heirs or representatives of the deceased party, as the court or judge may think proper, for making them parties to the suit and regulating the proceedings accordingly. 44. The expenses and charge of the commissioners Expenses of shall be ascertained and allowed by the court, and all the to be^Iuoweir other costs of the proceedings shall be taxed in the usual ^xedrS ^n*^^ manner, and the whole shall be paid by the parties in pro- other cases. portion to their respective shares or interests in the pre- mises, except only the cost of a trial of any issue joined in the case, as to which a different provision is before made. 45. Every person holding any lands under a partition ™e3 ™^ll ^ made by virtue of this chapter shall be considered as hold- plriuon, how ing them under an apparently good title, so that in case of °°°'*' eviction he shall be entitled to compensation for any im- provements made thereon. 46. All proceedings connected with the partition of m^®be"tfken lands under this chapter may be taken before a judge at eloep'tfon^'^lp! chambers, except where the trial of an issue before a jury peai. 604 FORCIBLE ENTRT AND DETAINER. [PART III CiiAi>. 140. shall become necessary; and all orders required by this chapter, to be made by the court may be made by a judge subject to an appeal from any such order to the court at its next sittings in the county. 47. Every order made in pursuance of this chapter by a single judge, not sitting in open court, shall be liable to be rescinded or altered by the court in like manner as other orders. Order •■■( a singlo Jlidgo liable to l->» r.;- f-cinac ■d nr alt roi i. OHAPTEE 140. OF TENANCIES AND OF FORCIBLE ENTRY AND DETAINER. Notice to quit, wliat to be sufficient. Warrants may issue in case of forcible entry and detainer and party to bail. In what case warrant may issue. Complaint to summarily tried. 1. When any house or tenement is let by the year, three mouths notice to quit, before the expiration of the year, and when by the month, one month's notice, and when by the week, one week's notice, shall be given to or by the tenant in possession, and such notice shall be good, though the day on which the tenancy terminated be not named therein. 2. In eases of wrongful and forcible entry into lands, and in cases of wrongful detainer, or withholding with eld force after possession demanded, and also when the lessee or sub-lessee shall illegally hold possession after the deter- mination of the lease and demand of possession, or when entry shall be made on lands or into houses or buildings, and the possession is withheld from the party entitled, for seven days after notice to leave and possession demanded, any two justices residing in the town or place wherein the lands lie, on complaint on oath being made, may by warrant cause the person so in possession to be arrested, and detained in custody until he find security for his appearance to answer such complaint, at the next term or sittings of the supreme court in the county, and to pay the costs of the proceedings if adjudged against him ; and in case he shall not find security, the cause shall notwithstanding proceed, and such complaint and all pro- ceedings before such justices shall be forthwith filed by them in the supreme court. 3. No such warrant shall issue where the party com- plained of or the person under whom he claims has been in quiet possession for three years next before the filing of the complaint, unless in cases of tenancy where the same has terminated. 4. The plaintiff shall file and serve his complaint, briefiy stated, and the defendant shall, within fourteen days thereafter, file and serve notice of defence, briefly stated ; TITLE XXXVIII.] ABSENT OR ABSCONDING DEBTORS. 605 and the case shall be tried in a summary way in the names OiiAP^. 141. of the parties and as a civil sait ; and if the complaint is proved to the satisfaction of the court a writ of possession shall issue, and the party compl'aining be put in possession ^^heu^'^to^be of the land and premises within ten days thereafter. The Riven. iTiiT 111 j'l TT tJourt may court shall have power, at the same time, to award damages award damages for such forcible entry, and in case of a tenant over- to °l^%seSoa holding, treble rent up to the time of the landlord's '^y-i'"'*' acquiring possession, at the rate previously paid ; but the court may, if they think fit, order that the cause may be tried, or the yent or damages assessed by a jury. TITLE XXXVIII. OF PROCEEDINGS m SPECIAL CASES. OHAPTEE 141. OF SUITS AGAINST ABSENT OB ABSCONDING DEBTORS. 1. Suits claiming twenty dollars and upv/ards may be wi-us of sum- prosecuted against persons absconding or absent out of the fOT°t\Sy''dof- province ; such suits to be commenced by summons stating '^-Jrc]™'^ "P" the defendant to be absconding or absent out of the pro- vince, and containing the cause of action with particulars when a liquidated sum is claimed, returnable in thirty days. 2. Before the summons issues an affidavit of cause of ^ffli^^Z", *° 'J'^ . , ,, 1 1 T ,1 n 1 n made before the action shall be made, and the sum endorsed on the sum- summons mons as in cases of holding to bail, Avith or without a '^™'^^' judge's order, and the affidavit shall also state that the de- fendant is absent or absconding from the province ; a copy service of sum- of the summons shall be served at the last place of defen- ™°"-- dant's abode, and no rule to plead or notice of trial shall be required. 3. At or after the commencement of action and with- Attachment out further or other affidavit, the plaintiff may sue out t? a|ent™™y attachment to take property, and summons to bring in '"' ^'"^'^ ""'■ agents, on which attachments shall be endorsed the sum endorsed on the original summons. 4. The sheriff to whom a writ of attachment is directed, a^oun?-' to\n- shall levy for the amount endorsed on the writ, with one "^'-^'^^ o°s'^- hundred and twenty dollars for probable costs in declara- tion causes, and twenty-eight dollars in summary suits. 5. The service of process on the agent shall bind all of°°aglnt bound the goods and credits of the absent or absconding person p^oo^gg™" °^ 606 ABSENT OR ABSCONDING DEBTORS. [PART III. Chap. 141. Goods exhibi- ted to be ap- praised before levy. Not bound un- til levy made Perishable goods may be Bold by order of judge unless security for their value be given. Person in- terested as sub- sequent attach- er or otherwise may contest attachment. Attachment to be attacked upon affidavit. Court may or- . derjury to try disputed facts, and may make other orders. Proceedings not affected by act of delend- ant in prior suit or judg- ment thereon. Court may or- der security for and award costs, and grant execution. When defend- ant may appear. then in his possession or under his control, to the amount endorsed on the writ, with one hundred and twenty dollars for probable costs in declaration causes, and twenty-eight dollars in summary suits. 6. "Where goods are exhibited to the sheriff as the property of the absent or absconding debtor, they shall be valued by two sworn appraisers, and upon an appraise- ment being made under their^ands, the sheriff shall.levy upon such part of the goods as shall be sufficient to respond the sum sworn to, and probable costs as above ; but the defendant's property shall not be .bound by the attachment until a levy is made. 7. Where the goods consist of stock, or are shewn upon affidavit to be of a perishable nature, and the agent shall not, within three days after notice of the appraise- ment, give security for the value, a judge, or the prothono- tary of the county in his absence, may, at his discretion, cause the same to be sold at public auction, and the pro- ceeds thereof shall be retained by the sheriff, or paid into court to respond the judgment. 8. When any person shall have any title or interest in any real estate, goods or credits attached, as a subsequent attacher or otherwise, he may be allowed to dispute the validity and effect of the attachment, on the ground that the sum demanded was not justly due, or that it was not payable when the action commenced. 9. The party objecting to the attachment may apply to the court to set it aside, which application shall be grounded on an affidavit, setting out the facts and circum- stances on which the motion is made, and also shewing that his claim is just and legal. 10. Upon hearing the motion, the court may direct a trial by jury of any question of fact arising on the inquiry; and if it shall appear that the sum demanded in the prior suit or any part of it is not justly due, or was not payable when the action was commenced, the court shall order the attachment therein made to be set aside in whole or in part, as justice shall require, but the order shall have no other effect in the prior suit. 11. The proceedings between the two adverse claimants shall not be affected by any plea or other act of the defen- dant in the prior suit, nor by any judgment that shall be rendered therein. 12. The court may, upon every such inquiry, direct such security to be given for costs, and, upon any decision thereon, may award costs to either party as they shall think just and reasonable, and execution in the common form may be issued therefor. 13. The defendant may appear at any time before judgment. TITLE XXXVIII.] ABSENT OR ABSCONDING DEBTORS. 607 14. If no appearance be entered after six months from Chap. 141. attachment of property or service of an agent, miless Damages, when special matter in bar, abatement or further continuance aL'lisseT if no be allowed, the damages may be assessed before a judge appearance, at chambers, or before the court, and the judge or court may, at his or their discretion, order a trial before a jury. 15. If dissatisfied with the proof or the finding of the Judge may or- • T • dcr HGW tri&l or jury, the judge or court ifiay order a new trial, or may postpone judg- postpone judgment for not more than six months, to allow ™'^"'' the defendant further opportunity to defend. 16. Where a person summoned as agent or trustee cilratVo°nfind*" shall file a declaration under his hand that he had not, at submit to ex- ,T . T - - . T ' amination. the time the summons was served upon him, any goods or wiien he has credits of the absent or absconding debtor in his possession haTehls oos*s. or under his control, and shall, if required, submit to an summ'li^°^*^'° examination upon oath satisfactory to the court, such <="='==■ ' agent or trustee shall be discharged and be entitled to his reasonable costs, to be taxed and allowed ; but in summary cases an agent shall not be allowed more than four dollars and sixty-seven cents for his costs, besides his travelling fees and attendance, as in the case of a witness. 17. "When an agent or trustee is summoned, he shall Appearance of ti£6iit or tru9" appear and file his declaration with the prothonotary of the tee, when. county where he resides, and serve the plaintift" or his attorney with a copy thereof within fifteen days after ser- vice ; but he shall not be required to appear for personal Examination, examination except on notice to that eflect and in the county where he resides, either before a judge or the court in term or sittings. 18. If any person summoned as an agent or trustee Proceedings shall fail to appear and disclose upon oath if required, the fIus™oa|pea amount of the goods or credits of the principal in his pos- session, or under his control, at the service of process, or acknowledge that he hath sufficient in his hands to respond the judgment, the court may proceed against him as for a contempt ; and he shall also be liable to pay the plaintiff his costs if the court shall so order. 19. "When the absent or absconding debtor, his agent ^a°b6''utin or trustee, shall desire to relieve the property from the andproperty attachment, he shall put in and perfect special bail to ittlohment".'" respond the judgment, and submit to such terms as the court or a judge shall deem right for the attainment of substantial justice. 20. The plaintiff shall not proceed in the trial of his no trial until cause against any absent or absconding debtor, unless his llll^ttuched, real estate or goods shall have been attached, or until the mittlTgo''o^d"ii" agent or trustee shall have admitted that he had goods or ^is possession. credits of such absent or absconding debtor in his posses- sion or under his control. Defendant en- 21. "Where judgment has been obtained against an ab- tuled to re- sent or absconding debtor, the defendant shall be entitled Jh^e"/^^,".'^''* to a rehearing at any time within three years. t'OS ABSENT OR ABSCONDING DBBTOBS. [PART III. Chap. 141. 22. After judgment obtained against an absent or _ab- Exeoution scondmg debtor, the court or a judge sball grant execution igalnifagent agaiust any agent or trustee who has appeared and acknow- eL°rf ^'^ "f ledged goods or credits in his hands, for such amount and ' • on such terms as the court or a judge shall think fit, allowing the agent his reasonable costs and commission ; such agent or trustee having had notice of the application. gf™n"brfOTe'"^ 23. ISTo execution shall issue against an absent or ab- exeoation shall scondiug debtor Until the plaintift" shall give security to dlbtor^°'""^' the satisfaction of the court or a judge for the re-payment of all monies levied thereunder, in case the judgment shoiild be reversed. topriifcipii'^fOT 24. The agent of such absent or absconding debtor Slen b ^^o**^ ^^^^-^ ^^^ ^® ■'^®^*^ liable for any goods or credits so taken cess. out of his hands by process and judgment of law. doSrSuslness ^^^ Companies or bodies corporate associated or incor- by agents, how poi'ated out of ISTova Scotia, doing business by an agent within this province, may be sued for any cause of action arising in whole or in part therein, by the name whereby they are associated or incorporated, or by the name whereby they may be designated by the agent; — and service on the agent of process to appear, shall give the court jurisdiction over the case ; and proceedings shall be had as when process to a^apear has been served on a defen- dant personally; and any person so served may, during the first term, appear and shew that he is not an agent, and upon proof thereof he shall have judgment against the plaintiff with costs of suit, munlcating™" ^^- '^^® court may, on sufficient cause shewn, allow with principal, time for the agent to communicate with his constituent. agSlTtTompa- 27. If judgment shall pass for the plaintifl", the agent, Sgon"^'''"*^ °^ vrhether the same agent who was served with process or any other, shall be bound to respond the same out of the assets of the company, or body corporate, which then are, or at any time afterwards may come into his hands or under his control, deducting his costs, and fair and legal commission thereon, to be disclosed by the agent on oath, if thereto required. elamin™drfto 28. After judgment, the agent may be examined on judgment. Qg^^h before the court or a judge at chambers, concerning the assets of the company, or corporate body, in his hands or under his control at the time of judgment, or at any time afterwards ; and the plaintiff and his proof may be heard in explanation or contradiction ; and such order shall be therein made as to justice may appertain, which shall be enforced against the agent personally. Plaintiff may 29. If the plaintiff shall desire securitv previous to taohment. judgment, he may at the commencement of the suit, or during its progress, make oath to the cause of action, and proceed bj attachment against the estate and effects of the company, or corporate body, and by summons to TIILE XXXVIII.] JOINT CEBTOKS. 609 disclose against the agents and debtors of the company, or Cjiap. 142. corporate body, or by either process, and by one or in separate and several writs ; and the estate and effects attached, and also the credits and effects in the hands or under the control of the agents or debtors at the time of service, or at any time afterwards, shall be available to respond the judgment to the amount of the sum sworn to and costs, as in cases under the sections relating to absent or absconding debtors ; but the plaintiff" may nevertheless proceed against the agent after judgment as before directed. 30. Nothing in the last five sections contained shall °ol1ffectr/by prevent the judgment from binding the property of the t^'^ "='• company, or body corporate, or from being levied and enforced by execution, or otherwise in such manner as may be conformable to law in other cases. 31. Before a summons shall issue in a case against an ^^^^1^°" absent or absconding debtor to bring in an agent or trustee, against agent. the plaintiff" or his agent shall make an affidavit of his belief, that the person proposed to be summoned is the agent or trustee of the defendant, or hath goods or credits of such defendant in his possession or under his control. OHAPTEE 142. OF SUITS AGAINST JOINT DEBTORS. 1. Where there are several defendants, and it is not one of several intended that all of them shall be arrested, the plaintiff or folnTdtStors, his attorney may direct the sheriff to arrest one or more may be arrest- only of the defendants and serve a copy of the capias on the others, and such service shall be of the same force and effect as the service of a writ of summons. 2. Where any action founded on contract is brought one or more of against several defendants, and the writ has been duly |ants sirved served on one or more of them, but no legal service can ^e^ed^a|ainst be made on the others by reason of their absence from the if the others are province, the action may nevertheless be prosecuted against those who have been served. 3. If such joint debtor shall make application to the '^"^ll^oltma- court on affidavit, stating that it is necessary for him to ance in such receive instruction respecting such suit from his absent oauseThe'wn. partner or joint debtor, and that he cannot safely proceed to trial of the cause without communication with him, and that he is not seeking for delay only, the court may, if it shall think fit, grant a reasonable imparlance. 4. If any such joint debtor, not having been served ^^^^^f^Vylp'- with process, shall come into the province previously to piyto defend 77 6l0 EXECUTORS, (TKUSTEES, &C. [pARl; HI. Chap. 143. the final determination of the suit, and shall apply to the anytime court to be admitted to defend, the court shall admit him j'udgmenr' accordingly, and shall cause such amendment to be made in the proceedings as may be required to make the same consistent and regular. file ws'dlefira- S. "When somc only of the defendants have been served tjon against the with process, the plaintiff may file his declaration against defendant ser- ■ , ■'^ , ' , -"^ , •' j.- j.i • xi Ted and enter such as havc been SO served, suggesting therein tne names io!lttt™er3.''^ of those defendants vrho were absent out of the province when the writ was issued, and who, on that account, could not be served with process. mlnt°to be'dis- ^- ^° P^®^ ^^ abatement for the non-joinder of a person allowed unless as & co-dcfcndant shall be allowed unless it shall be stated eScumsteMes in the plea that he was at the commencement of the suit duly verified, j-esideut withiu the jurisdiction of the court, and unless his place of residence shall be stated with convenient certainty in an affidavit verifying the plea. bantouptey^o?' '^ • '^^ ^^J P^®^ ^^ abatement of the non-joinder of insoiTeney to another persou, the plaintiff" may reply that such person I3l6£is in abate- v j. */ j- ment. has been discharged by bankruptcy and certificate, or as an insolvent debtor. hivrafoTrT ^- If a joint debtor, absent at the commencement of the ^■ao^as against a guit, shall come iuto the province after final judgment, and turning afte^ bcforc the plaintiff shall have received full satisfaction sui^tcoramen- ^j^gpgpf^ t]^g plaintiff may sue out a writ of scire facias against him, requiring him to shew cause why execution should not issue against him to satisfy what may remain due on such judgment; and the defendant may plead either in bar to the original suit or in answer to the scire facias. On what pro- 9. The plaintiff after iuda-ment recovered may take out PSrtV GXGCUtlOIl may be levied, exccutiou thereou, and cause the same to be extended on the joint or separate property, or on the persons of all the joint debtors; but such execution shall not be extended on the separate property or on the person of any joint debtor, not brought into court as a party to the suit. CHAPTER 143. OF SUITS AGAINST EXECUTORS, ADMINISTRATORS, AND TRUSTEES. Within what 1. Actious of trcspass, or trespass on the case, mav be &e. may bring' maintained by executors or administrators for any injury rfe'sto /eli'es"' to the real estate of the deceased committed within six tateofdeoeas- months prcvious to Ms dcccase, for which the deceased might have maintained such action ; provided the action be brought within one year after his death. TITLE XXXVIII.] EXECUTOES, TRUSTEES, &C. 611 2. Actions of trespass, or trespass on the ease, may be Chap. 143. maintained against the executors or administrators of a mtun what deceased person, for any injury done by him in his life- tr^spassX^ °^ time to the real or personal property of another, so as such may be brought injury shall have been committed within six months before tois^L^lov^n- his death, and so as such action shall be brought within ^^eoeaaed?" ^^ six months after his executors or administrators shall have undertaken the administration of his estate. 3. An action of debt on simple contract may be main- Actions of debt , . T . , . *^ ^^ , , , may be main- tamed at common law against any executor or admmis- tained against tratOr. - executors, &o, 4. Every legatee may recover the amount and value of legacies, &a. , . , ° . , 1 "^ , , 1 n ,1 mayberecoTSr- nis legacy, annuity or bequest, at common law, irom the ed by action at administrator with the will annexed, or executor, either''™'"™'''^' by action for money had and received or otherwise. 5. Any executor beinff a residuary legatee mav main- Residuary lega- •^ . CJ _ */ O t/ -faao mmr unci tain an action at common law lor money had and received their co-cmcu- or otherwise, against the co-executor, and may in like '"''''■ manner sue for and recover his rateable part thereof, and any other residuary legatee shall have the like remedy against an executor. 6. "When two or more persons are named executors in Executors re- a will and any of them shall neglect or refuse to act, and and"?! whom probate shall be granted to the other or others of them, it ?een*granted°* shall not be necessary to name the executor who has so nameSfn'iny refused or neglected, in any action or suit relating to the suit, 4c. estate. 7. Executors, administrators, and trustees, unless where Executors, ac, otherwise directed by the will or other instrument creating make'^nyest the trust, are hereby authorized to invest money and funds ments iii pro- in their hands, or under their control, in the provincial tures. savings bank, or in the provincial debentures ; and the production of such provincial debentures, or other evi- dences of ^money so invested and deposited, shall be held equivalent to the production of the amount of money actually paid by such executor, administrator, or trustee. 8. Upon the petition of any trustee appointed by deed, Proceedings on or of any executor appointed a trustee by any last will, Iml^eeslTc:"/ asking his discharge from the trust or executorship, a judge of the supreme court may direct such preliminary enquiry, and with such notices to parties interested as he shall think fit, as to the terms upon which the resignation of such trustee or executor should be accepted ; and the supreme court may thereafter pass such order for the discharge of such trustee or executor, as a due regard to his wishes and interest, and to the rights and interest of the person interested in the execution of the trust, may require. 9. A petition may be presented in like manner, by any Eemovai of person interested in the execution of a trust, asking for the emoval of the trustee or executor, and a like enquiry may 612 COMMISSIONERS WITHOUT THE PROVINCE. [PART III. Chap. 144. be thereupon had, and such order passed by the supreme court, or any two judges thereof, as a due regard to the rights and interests of the trustee or executor, and of the parties interested in the execution of the trust, may require. new°weea°^ 10. The suprcmc court, or any two judges thereof, shall have full power to appoint a new trustee in place of a trustee or executor so dischai'ged or removed, or of any trustee removed from the jurisdiction of the court, or in case of the death, unhtness or incapacity, of a trustee, and upon such terms as to security for the due execution of the trust as shall be deemed necessary ; and when, in consequence of such resignation or removal, there shall be no acting trustee, the court, or any two judges thereof, in its discretion, may appoint new trustees, or cause the trust to be executed by one of the ofBcers of the court under its direction. Costs, how paid -^-^ Thc court may direct the costs of any proceedings under the three last sections to be taxed and paid out of the trust funds, or otherwise, as they shall think proper. CHAPTEE 144. or COMMISSIONERS WITHOUT THE PEOVINCE. [PASSEB ON THE 18tH liT OF APEII, A.B., 1864.] Appointment Of 1. The govcmor in council may select as commission- e?3"'theYr™aots crs, pcrsous residing in the United Kingdom or in any to be valid. British colony, or in a foreign country, and a certificate under the hand and seal of any such commissioner of the due acknowledgment as required by law, before him, of release of dower by married women in lands situate within this province, or of the attestation under oath before such commissioner, of the due execution of deeds and writings intended to be registered, deposited, or filed, in any public office in this province ; or of the attestation to affi- davits relating to the transfer and registry of vessels be- longing to this province, and relating to proceedings in the supreme court, or in any other court within this province, being a court of record, shall be of fuUforce and effect in this province, when produced in evidence therein, to all intents and purposes, as if such acknowledgment, oath, or attestation had been duly taken, administered and certi- fied, by and before persons authorized to act in like cases within this province. suspending 2. Thisact shall not go iuto Operation uutilher majesty's clause. assent shall be signified thereto. TITLE XXXVm.] DISTRESS TOR RENT. 613 Chap. 145. OHAPTEE 145. OP DISTRESS FOR BENT AND REMEDY. 1. Where any goods are distrained for rent reserved ^d to be ap"'" and due upon any lease or contract, and the tenant or praised and owner ot the goods shall not withm live days next alter Ave days after the distress taken, and notice thereof with the cause of fe^pievied"" taking served upon him, or left at the most conspicuous place on the premises charged with such rent, replevy the same with security to be given to the sheriff, the landlord, with the sheriff or his deputy or a constable, who are re- quired to aid therein, may cause the goods so distrained to be appraised by two sworn appraisers. 2. After the appraisement the landlord shall sell the ^o°d'^and° after goods distrained for the best price to be gotten therefor, rent' paid, sur- towards payment of the rent due and expenses incurred, reSn fo?' '° leaving the overplus, if any, in the hands of the officer for °™^'''^ "^°- the owner's use. 3. Sheaves or cocks of grain, grain loose or in the G™n in the straw, hay in a barn or upon a hovel, stack or rick, or upon I'lrZ'&cJhmv the land charged with such rent, may be locked up or ''is*''ained. detained upon the premises by a landlord having rent in arrear, for or in nature of a distress, until the same shall be replevied upon security to be given as above ; and in default of being replevied within the time above in that behalf specified, after appraiseinent made in like manner, be sold ; but the same shall not be removed out of the place where found and seized by the distrainer, to the damage of the owner, before such sale. 4. Upon any pound-breach and rescue of goods dis- ^a^se'of '' oSnd trained for rent, the person aggrieved thereby may recover breach and his damages against the offender, or against the owner of dStrafne'^i!'""*'' the goods distrained if the same be afterwards found to have come to his use or possession. 5. In case any distress and sale be made by any person Remedy in case • T t/ t/ J. of a distrsss for for rent, where none is m arrear, the owner of the goods rent where distrained, his executors and administrators, by action of ar'ielr.'^ "" trespass, or trespass on the case, may recover against the persons distraining or either of them, his or their execu- tors or administrators, the value of the goods distrained, and such further damages as the jury may award. 6. No goods being upon any messuage or tenement Goods not leased shall be liable to be taken by virtue of any execu- movld°under tion, unless the party at whose suit the execution is sued rent^pSd^but out shall before removal of such goods from off the pre- JJ"^ year^s°°®'^ mises pay the landlord or his bailiff' at least one year's amount, &c. rent thereof, if so much is in arrear and due ; and if the rent be not actually due then a rateable part thereof up to the levy of the execution. If the arrears exceed one year's 614 Chap. 145, DISTRESS FOR RENT. [part III, Goods fraudu-' lently removed to avoid dis- tress may, un- less previously sold m good faith, be seized within twenty- one days. Kent reserved upon a lease for life may be recovered as in other eases. Kent may be distrained for within six months after determination of lease in certain cases. Executors, Ac, may distrain for rent due deceased, and in what cases. Cattle, ^corn, fruits, Ac, may be taken as a distress for rent. Distress in such case, how kep,t where no iDarn, Ac, upon the premises. rent of the premises, then upon payment to the landlord or his bailiff of one year's rent, the execution creditor may proceed to execute his judgment as in other cases; and the sheriff, his deputy or other officer is required to levy and pay to the execution creditor, as well the money so paid for rent as the execution money. 7. In case any lessee of any messuage, lands or tene- ments, upon the demise whereof any rents are reserved, shall fraudulently or clandestinely convey from such demi- sed premises his goods, with intent to prevent the landlord distraining the same, such landlord, by himself or his servants, may within twentj'-one days then next ensuing such conveying away, seize such goods wherever found as a distress for such arrears of rent, and dispose of the same as if they had been distrained upon the premises, unless such goods shall have been sold in good faith and for a valuable consideration before such seizure, in which case they shall not be liable to a distress. 8. Rent in arrear and due upon a lease for life or lives may be recovered by action in the same way as if reserved upon a lease for years. 9. Rent in arrear and due upon a lease for life or lives, or for years or at will, ended or determined, may be dis- trained for after such determination, in the same way as if such leases were not determined, if such distress be made within six months after such determination, during the continuance of the landlord's title or interest and during the possession of the tenant from whom such arrears are due. 10. Executors or administrators of a landlord may dis- train upon lands demised for a term or at will, for rent due in his lifetime, and such rent may be distrained for after the determination of such term or lease at will, in the same manner as if such term or lease had not been ended or determined ; but the distress in such case must be made within six months next after the determination of such term or lease and during the continuance of the pos- session of the tenant from whom such rent is due. 11. A landlord or his bailiff may seize as a distress for arrears of rent any cattle or stock of his tenant feeding upon any common belonging to any part of the premises demised, and may also seize all sorts of corn, grain, grass, hops, roots, fruits, pulse or other product growing on any part of the premises demised as a distress for arrears of rent, and may cut, gather, cure, carry and lay them up when ripe in barns or other places on the premises so demised. 12. In ease there is no barn or proper place on the premises for receiving the same, then he may cause the same to be placed in any barn or proper place to be pro- cured as near as may be to the premises, and in convenient TITLE XXXVIII.] ARBITRATION. 615 time shall appraise and dispose of the same towards satis- Chap. 146. faction of the rents and the charges of such distress as in other cases. The appraisement to be made after the crop is cut, cured, and gathered, and not before. 13. JSTotice of the place where the goods so distrained ^,°'J^®of°' "1° shall be deposited, shall within one week after their being deposit, when so deposited, be given to the tenant or left at his last place be'^iven!^"'^*" of abode. CHAPTER 146. OF ARBITRATION. 1. The power of arbitrators, appointed under a rule or Power of arbi- submission containing an agreement that it should be krewc'abi'eT made a rule of the supreme court, shall be irrevocable, iSbfrgeTmo unless the court or a judge shall otherwise order; and the f^ award. court or a judge may enlarge the time for making an award thereunder. 2. In any case referred to arbitration, whether by rule Attendance of of court or otherwise, the arbitrators shall have power to rnfojoed'' ^°^ issue subpcBnas for the attendance of witnesses before them at any time or place therein named ; and any person on whom any such subpoena shall have been served, and who shall have been tendered such fees for travel and attend- ance as are fixed by law for witnesses in the supreme court, shall be liable, in case of disobedience of such subpcena, Punishment for to the same punishment and liabilities as if the said sub- sub°p»na^°°*° poena had issued from the supreme court for the attendance of the witness at a trial therein. 3. No person shall be compelled to produce, under any Production of rule or order, any writing or document that he would not wit°ne"s^°not be compelled to produce at a trial, nor to attend on more att™nl"more than two consecutive days. oonseoutiyefy^' 4. Arbitrators so appointed may administer oaths to Arbitrators the witnesses. _ ^t^eZf' 5. When arbitrators are appointed under a submission Justices may not containing any agreement that it shall be made a rule oat^^when of court, any justice of the peace may administer oaths to appoStef °°' the witnesses in the presence of one' or more of the arbi- ™^^Y "^"'^ °^ trators. 6. If it be made appear, at any time after the issuing Powerof court of the writ, to the satisfaction of the court or a judge, appii'calfon^to" upon the application of either party, that the matter in tionb'efore''^"' dispute consists wholly or in part of matters of mere ac- *""'• count which cannot conveniently be tried in the ordinary way, it shall be lawful for such court or judge, upon such 616 ABBITBATION. [part III. Chap. 146. Special case may be stated and question of facts tried. Arbitrator may state special case. Power of judge to direct arbi- tration at time of trial when issues of fact left to his decision. Proceedings before, and power of, such arbitrator. application, if they or he think fit, to decide such matter in a summary manner, or to order, that such matter either wholly or in part, be referred to an arbitrator or arbitra- tors appointed by the parties, upon such terms, as to costs and otherwise, as such court or judge shall think reason- able ; and the decision or order of such court or judge, or the award or certificate of such ];eferee, shall be enforce- able by the same process as the finding of a jury upon the matter referred. 7. If it shall appear to the court or a judge that the allowance or disallowance of any particular item or items in such account depends upon a question of law fit to be decided by the court, or upon a question of fact fit to be decided by a jury, or by a judge, upon the consent of both parties, as hereinbefore provided, it shall be lawful for such court or judge to direct a case to be stated, or an issue or issues to be tried ; and the decision of the court upon such case, and the finding of the jury or judge upon such issue or issues, shall be taken and acted upon by the arbitrator as the case may be, as conclusive. 8. It shall be lawful for the arbitrator, upon any com- pulsory reference under this chapter, or upon any reference by consent of parties where the submission is or may be made a rule or order of the court, if he shall think fit and if it is not provided to the contrary, to state his award, as to the whole or any part thereof, in the form of a special case for the opinion of the court, and when an action is referred, judgment, if so ordered, may be entered accord- ing to the opinion of the court. 9. If upon the trial of any issue of fact by a judge under this chapter, it shall appear to the judge that the questions arising thereon involve matter of account which cannot conveniently be tried before him, it shall be lawful for him, on the application of either party, to order that such matter of account be referred to an arbitrator ap- pointed by the parties, upon such terms, as to costs and otherwise, as such judge shall think reasonable ; and the award or certificate of such referee shall have the same efli"eet as hereinbefore provided as to the award or certifi- cate of a referee before trial ; and it shall be competent for the judge to proceed to try and dispose of any other matters in question, not referred, in like manner as if no reference had been made. 10. The proceedings upon any such arbitration or reference as aforesaid shall, except otherwise directed hereby or by the submission or document authorizing the reference, be conducted in like manner, and subject to the same rules and enactments, as to the power of the arbitra- tor and of the court, the attendance of witnesses, the pro- duction of documents, enforcing or setting aside the award, and otherwise, as upon a, reference made by con- sent under a rule of court or judge's order. IITLE XXXVIII.] iEcffEATIOX. 617 11. In case of any such arbitration or reference as Chap. 146. aforesaid the court or a judge shall have power at any ^ver of judge time, and from time to time, to remit the matters referred, to send back' or* any or either of them, to the re-consideration and re- ooasideratioA determination of the said arbitrator or referee, upon such *° "''''"™*°'- terms, as to costs and otherwise, as to the said court or judge may seem proper. 12. All applications to set aside any award made on a AppUeations to compulsory reference under this chapter, shall and may be amrf."^" *^ made to the court or a judge within one month next fol- lowing the publication of the award to the parties, whether inade in vacation or term ; and if no such application is raade, or if no rule is granted thereon, or if any rule granted thereon is afterwards discharged, such award shall be final between the parties. 13. Any award made on a compulsory reference under Enforcing of this chapter may, by authority of a judge, on such terms perTocf fol- 'set- as to him may seem reasonable, be enforced at any time t'°B them aside. after seven daj'^s from the time of publication, notwith- standing that the time for moving to set it aside has not elapsed. 14. Where a rule nisi is obtained to set aside an award, objections to the several objections thereto intended to be insisted on at tSedinrufe the time of moving to make such rule absolute shall be °^^'' stated in the rule to show cause. 15. "Whenever the parties to any deed or instrument in " action «oin- writing to be hereafter made or executed, or any of them, mrtyltte/aii"° shall agree that any then existing or future differences arwtraSolf,'^ *° .between them or any of them shall be referred to arbitra- may stayiro'?* tion, and any one or more of the parties so, agreeing, or eeedings. any person or persons claiming through or tinder him or them, shall nevertheless commence any action against the other party or parties, or any of them, or against any person or persons claiming through or under him or them in respect of the matters so agreed to be referred, or any of them, it shall be lawful for the court in which the action or suit is brought, or a judge thereof, on application by the defendant or defendants, or any of them, before appearance and defence or answer, upon being satisfied that no sufficient reason exists why such matters cannot be or ought not to be referred to arbitration according to such agreement as aforesaid, and that the defendant was at the time of the bringing of such action or suit, and still is, ready and willing to join and concur in all acts neces- sary and proper for causing such matters so to be decided by arbitration, to make a rule or order staying all proceed- ings in such action or suit, on such terms, as to costs and otherwise, as to such court or judge may seem fit : pro- vided always that any such rule or order may at any time afterwards be discharged or varied as justice may require. 78 618 AfeBiffeATioif. [part m. Chap. 146. 16. If in any case of arbitration, tlie document autho- on failure of rizing the reference provide that the reference shall be to pSinraAita- a single arbitrator, and all the parties do not, after dif- tors, tiie judge ferenccs have arisen, concur in the appointment of an artftatol^unf- arbitrator ; or if any appointed arbitrator refuse to act, or Srbttrator!"''^ become incapable of acting, or die, and the terms of such document do not show that it was intended that such vacancy should not be supplied, and the parties do not concur in appointing a new one; or if, where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator, such parties or arbitrators do not appoint an umpire or third arbitrator ; or if any appointed umpire or third arbitrator refuse to act, or become incapable of acting, or die, and the terms of the document authorizing the reference do not show that it was intended that such a vacancy should not be supplied, and the parties or arbitra- tors respectively do not appoint a new one ; then in every such instance any party may serve the remaining parties or the arbitrators, [as the case may be,~] with a written notice to appoint an arbitrator, umpire or third arbitrator respec- tively ; and if, within seven clear days after such notice shall have been served, no arbitrator, umpire or third arbitrator be appointed, it shall be lawful for the court or a judge, upon the application of the party having served such notice as aforesaid, to appoint an arbitrator, umpire » or third arbitrator, [as the case 7nay be,'] and such arbitrator, umpire aud third arbitrator respectively shall have the like power to act in the reference, and make an award as if he had been appointed by consent of all parties. I^ce^irf^two 1'^- When the reference is or is intended to be to two and'onrparty arbitrators, ouc appointed by each party, it shall be lawful foil to appoint, for either party, in case of the death, refusal to act, or ma/appoinT ^ incapacity of any arbitrator appointed by him, to substi- a[one™'°'^*°'^'^' tutc a uew arbitrator, unless the document authorizing the reierence show that it was intended that the vacancy should not be supplied; and if, on such a reference, one party fail to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other party shall have appointed an arbitrator, and shall have served the party so failing to appoint with notice in writing to make the appointment, the party who has appointed an arbitrator may appoint such arbitrator to act as sole arbitrator in the reference, and an award made by him shall be binding on both parties as if the appoint- ment had been by consent; provided, however, that the court or a judge may revoke such appointment on such terms as shall seem just. J^ce'ia tftwo 18. When the reference is to two arbitrators, and the arbitrators^they terms of the documeut authorizing it do not show that it umpire. ' was intended that there should not be an umpire, or pro- vide otherwise for the appointment of an umpire, the two TITLE XXXVIII.J ARBITRATION. 619 arbitrators may appoint an umpire at any time within the Chap. 146, period during which they have power to make an award, unless they be called upon by notice as aforesaid to make the appointment sooner. 19. The arbitrator acting under any such document or Award to be compulsory order of reference as aforesaid, or under any Sonfhs," unless order referring the award back, "shall make his award un- ?SS'ai-ge''the'"' der his hand, and unless such document or order respec- *™e' tively shall contain a difterent limit of time, within three months after he shall have been appointed, and shall have entered on the reference, or shall have been called upon to act by a notice in writing from any party, but the parties or their attornies may by consent in writing enlarge the term for making the award ; and it shall be lawful tor the court of which such submission, document, or order is or may be made a rule or order, or for any judge thereof, for good cause to be stated in the rule or order for enlarge- ment, from time to time to enlarge the term for making the award ; and if no period be stated for the enlargement in such consent or order for enlargement, it shall be deemed an enlargement for one month ; and in any case where an umpire shall have been appointed it shall-be lawful for him to enter on the reference in lieu of the arbitrators, if the latter shall have allowed their time or their extended time to expire without making any award, or shall have delivered to any party or to^the umpire a notice in writing stating that they cannot agree. 20. When any award made on any such submission, po"'sVssion''of '' document, or order of reference as aforesaid directs that j^mri, pm-snant possession of any lands or tenements capable of being the enfJI-ced a°s t subject of an action of ejectment, shall be delivered to i^eltmeuV" any party, either forthwith or at any future time, or that any such party is entitled to the possession of any such lands or tenements, it shall be lawful for the court or a judge to order any pai'ty to the reference who shall be in possession of any such lands or tenements, or any pei'son in possession of the same claiming under, or put in posses- sion by him since the making of the document authorizing the reference, to deliver possession of the same to the party entitled thereto, pui'suant to the award, and such rule or order to deliver possession shall have the effect of a judg- ment in ejectment against every such party or person named in it, and execution may issue, and possession shall be delivered by the sheriff as on a judgment in ejectment. 21. Every agreement or submission to arbitration by Agi-eement or , T_ ii 1 1 T • i I. ■ -J.' J. submission in consent, whether by deed or mstrument m writmg not writing may be under seal, may be made a rule of court on the application ™„^,f^l "ni'esf a of any party thereto, unless such agreement or submission tfo„™p^ea"*™" contain words purporting that the parties intend that it should not be made a rule of court. 620 Chap. 1 47. Obedirince to an nw.iril, l(0\v onfu. (ic4. Fee;* to nvbitiii; tors to be iTn oo the use of the occupier ot the land. Penait.v for in- OQ. If any persou shall illegally cut down or iniure any tree growing on crown or private land, or shall illegally carry away any such tree when cut down, he shall, for every such tree, forfeit a sum not to exceed eight dollars to the commissioner of crown lands for the time being, for the use of the province, or to the owner of the^oil, as the case may be, but in no case shall the whole penalty exceed Imprisonment, twcuty dollai'S. No pcrsou imprisouod under execution issued upon any judgment for breach of this section, shall be entitled to jail limits, or to the benefit of chapter one hundred and thirty-seven, relating to insolvent debtors, until he shall have been imprisoned, if, for the first offence, a period of five days, and for the second or subsequent offence, a period of ten days. The above pen- 21. Nothing in the two preceding sections contained '^"miii'itoi^^ shall take away from the party injured any right of action remedies. at law for the trcspass committed. Offences in 22. The offcnces enumerated in sections seventeen, i9°and V 'de-' eighteen, nineteen and twenty, are hereby declared to be jilrildict?on'^of Under the jurisdiction of one or more justice or justices p"eacr^ °^ '^'' °^ ^■^^ peace according to the amount of penalty sought to be recovered. tl'™peace™to°* ^3. Two justiccs of the peace may hear and determine tiSr ive:''*1i.t ^^ ^ summary way, all complaints for common assaults and sauitstoss. batteries, and upon conviction the offender shall forfeit a sum not exceeding eight dollars, to be paid over when recovered to the county treasurer, and the justices shall forthwith file the receipt of the county treasurer with the clerk of the peace. Say^issue'for 24. If the fine and costs awarded shall not be paid fines and costs, forthwith, OP wltMu the time appointed for that purpose. TITLE XXXVIII.J PETTY OFFENCES, ETC. 623 by the justices, the same may be levied by execution iu Chap. 147. the usual form, under which the offender may be impri- and imprisou- sonod for a period not exceeding thirty days, unless the o"dered"'not"' fine and costs be sooner paid. exceeding 25. If the justices upon the hearing shall deem the justices may offence not proved, or so trifling as not to merit punish- pj|[J|t™d'Sre ment, they may dismiss the complaint, and if required ^ oeitiHcate ' shall give the party acquitted a certificate accordingly. '^""""^ '"^^' 26. The justices may give costs either to complainant Justices may or defendant, or dismiss the complaint without costs on fficosTsfrom either side. '="'^"' p"'''''- 27. If the offence charged be of an aggravated kind, or where^theof- if upon the hearing the justices think the offender deserving v.ated tue^jus^" a higher punishment than above prescribed, they may bind ovIrthe^partTes the offender over by recognizance to appear at the next the^siipreme supreme court to answer the charge, and if necessary may <^<""'- also bind over the prosecutor to appear and prosecute, and the witnesses to give evidence. 28. If any person shall have obtained a certificate as compliance above, or, having been convicted, shall have paid the whole tiie^s judgment amount adjudged, or shall have suffered the punishment from afAiJrthei- awarded for non-payment thereof, he shall be thereby ceidin^s^™" acquitted of all criminal proceedings for the same offence. 29. Every prosecution under this chapter shall be com- Limitation of menced within six months after the offence committed. p'°^°<=" ^"'^^^ 30. The justices shall proceed by summons in the form Proceedings to following : SgTer"'' To any of the constables of the county of : You are hereby commanded to summon A. B., of , to appear before us at on the day of next, to answer C. D. for a petty trespass l_or for a 2^My assault and battery, as the case may 5e] committed on or about the day (f£ , contrary to the provisions of chapter one hundred and forty-seven. "Witness our hands at — the day of -, A. D. 18—. E. F., J. P. (seal.) G.H.,J. P. (seal.) 31. The convictions under this chaptef shall be endorsed b™ndors"dV upon or annexed to the original summons in the form fol- annexed to the -, -^ . ^ summons; form lowing : given. The within named C. D., having been duly summoned, was this day convicted of a petty trespass [^or a petty assault and battery, or a -pdty assault] upon his own confession \_or upon default, or upon the oath of J. K., its the case may be, statiny the mannet of the party's comiiction and the names of the u)itnesses examined] and Avas thereupon fined the sum of , with costs, amounting in all to the siim of , to be paid forthwith [or within days next.] S24 WRIT OP CBRTIOBAKI. [PART IIX^ Chap. 148. Witness our hands this day of — • , A. D. 18 — . E. F., J. P. G. H., J. P. Whichj when signed by the justiceSj shall be a valid record of such conviction. Bail to be filed before issuing a writ of certio- rari; endorse- ment required on the writ. Court above may inquire anew into the facts, and may order a trial by In civil suits, cases how con- ducted. OHAPTEE 148. OP THE WKIT OF CBRTIOEAEI. 1. Previous to issuing a writ of certiorari the judge or commissioner shall require the person applying therefor to file sufficient bail, in such reasonable amount as the judge or commissioner shall direct, to respond the judgment to be finally given in the cause, and the judge or commis- sioner shall endorse on the writ the amount for which bail is filed, with the names of the bail, and also the date when the writ' was allowed, and shall put his signature thereto. 2. In all causes and proceedings brought up by certi- orari, the court may inquire into the facts anew, if it shall seem to them to be necessary, and may order a trial thereof by jury. 3. In all civil suits the cause shall be conducted in the names of the real parties. OHAPTEE 149. OP INTERPLEADER. When the de- fendant alleges the interest in the subject of the suit to be in a third party, he may, before plea, apply for a rule or order upon him to ap- pear and state his claim. 1. If in any action of assumpsit, debt, detinue or trover, the defendant, after declaration and before plea, shall by afiidavit or otherwise shew that he claims no interest in the subject matter of the suit, but that the right thereto is claimed or supposed to belong to some third party, who has sued or who is expected to sue for the same, and that such defendant does not in any manner collude with such third party, but is ready to bring into court or to pay or to dispose .of the subject matter of the action in such manner as the court or any judge thereof may order or direct, the court or a judge may make rules or orders calling upon such third party to appear and state the nature and par- ticulars of his claim, and maintain or relinquish the same. TITLE XXXVIU.] INTBRPLEADEH; 625 2. Upon such fule or order the court or a judge may Chap. 149. hear the allegations as well of such third party as of the The com-t or a plaintiff, and in the meantime may stay the proceedings in ihe^cas™"'amfi'n the action. *ho meantime 3. The court or a judge may finally order such third ceedmgs. party to make himself defendant in the same or some other '{^Z^°^X°'^ action, or to proceed to trial on a feigned issue, and may make such also direct which of the parties shall be plaintiff or defen- fendant'^i/thlt dant on such trial, or with the consent of the plaintiff, or Son"o?by ^n- Buch third party, their counsel or attornies, may dispose of the matter on°^ the merits of their claims and determine the same in a the merits. summary manner. 4. The court or a judge may make such other rules J^g^m^a'^'^be'^^" and orders therein as to costs and all other matters as may made as to . T . . T -, ^ ^ costs, &c., as are appear to be just and reasonable. just. 5. The judgment in the issue or action, and the deci- judgment to ba sion of the court or judge in a summary manner, shall be ^°^'' final and conclusive against the parties and all persons claiming under them. 6. If such third party shall not appear upon being duly ^^j.f^'^l'hS^not served with such rule or order to maintainor relinquish appe^? he shaii his claim, or shall neglect to comply with any rule or order any oMm ^"^""^ after appearance, the court or a judge may declare sach SlnVbutntt third party, and all claiming under him, barred for ever "f^^tj^.^^o^er from prosecuting his claims against the original defendant of the ciurt as or his representatives, saving nevertheless the right or ''° ''°^'"'' claim of such third party against the plaintiff, and may thereupon make such order between such defendant and the plaintifl" as to costs and other matters as may appear just and reasonable. 7. Any order made in pursuance of this chapter by a uawe toi?e"re-* single judge not sitting in open court, shall be liable to be ^^^"^ '■y *'^® rescinded or altered by the court, in like manner as other orders made by a single judge. 8. If upon application to a judge, in any stage of the a judge may at proceedings, he shall think the matter more fit for the the prM^eel-^'''^ decision of the court, he may refer it to the court, and 0°!^*° *° thereupon the court shall hear and dispose of the same, as if the proceedings had commenced by a rule of court instead of the order of a judge. 9. Where claim shall be made to any goods taken or Proyisions of intended to be taken under any writ of execution or attach- Se^apptfca- ment, issuing out of any court, the supreme court, or any congtabiesT'^o! judge thereof, upon application of a sheriff", constable or other officer, made before or after the return of such pro- cess, and as well before as after any action brought against such sheriff", constable or other officer, may call before them by rule of court, as well the party issuing such pro- cess as the party making such claim ; and thereupon exer- cise for the adjustment of such claims, and the relief and protection of the sheriff, constable or other officer, all or 79 626 PROTECTION OF JUSTICES OF THE PEACE. [PART III. Chap. 150. any of the powers and authorities hereinbefore contained, and make such' rules and decisions as shall appear to be just, according to the circumstances of the case, and the costs of all such proceedings shall be in the discretion of the court. ^ Rules, orders, 10. All rulcs, ordcrs, matters and decisions, in pursu- ed'of reool-df '^' auce of this chapter, excepting only the ajSidavit to be IfftnlijaAg- filed, may, together with the declaration in the cause, if raents. any, be entered of record, with a note in the margin, or an endorsement thereon by the prothonotary, expressing the date of entry, and which shall be evidence thereof. Every rule or order so entered shall have the eflect of a judgment, except as to becoming a charge upon lands ; and such rules or orders may be enforced by execution as in other cases. CHAPTER 150. OF THE PROTECTION OF JUSTICES OF THE PEACE. Actions agiiinst 1. Every action against a justice of the peace for any i'itSo*? the act doue in the execution of his ofl&ce with respect to a tkfns'o^f'iSice ™atter withiu his jurisdiction, shall be an action on the ^^<=-^'i^°eoessary ' casc, and it shall be expressly alleged in the declaration tion. that the act was done maliciously and without reasonable and probable cause, and if upon the trial the plaintiff fail to prove such allegation, judgment shall be given for the defendant. Malice, &c., 2. If the action be brought for an act done in a matter when need not i Tim. ''Tx* i ii tti- be alleged; ao- wlicrc he UTis uo jurisdiction, or where he has exceeded his caTewhe"n only jurisdiction, the party injured thereby or by any act done to be brought, under a conviction, or order or warrant issued by the jus- tice, need not allege malice or want of reasonable and pro- bable cause in his declaration. But no action in such casc shall be brought until such conviction shall have been quashed, nor shall any action be brought for any thing done under any warrant issued by such justice to procure the appearance of a party, which shall have been followed by a conviction or order, until the same shall have been quashed. ! Cases' In Which 3. If a waiTaut sliall uot havc been followed by a cou- pe alaiJfst^the viction or order, or if it be a warrant upon an information ihingdoneuT ^*^^ ^^^ alleged indictable offence, and a summons had been der his warrant, prcviously issucd and sci'ved, and the party did not appear in obedience to the summons, in any such case no action shall be maintained against the justice for anything done under the warrant. TITLE XXXVIII.] PROTECTION OF JUSTICES OF THE PEACE, 627 4. "Where a conviction or order shall be made by a Chap. 150. justice, and a warrant of distress or commitment by some justice issuing other justice in good faith and without collusion, no action fiabie?o"an ac- shall be brouarht asrainst the justice who granted the war- tion where rant for any defect in the conviction or order, or for want makes an iiie- of jurisdiction in the justice who made it, but the action, ^^' conTiction. if any, shall be brought against the justice who made such conviction or order. 5. Where a poor or county rate shall be made, and a Justice gmut- warrant of distress shall issue against a person rated o"dish™s to'a therein, no action shall be brought against the justice who for'^aSy'defct granted the warrant for any irregularity or defect in the !^ate'' '" '"^^ rate, or by reason of any such person not being liable to be rated. 6. Where a justice shall refuse to do any act relating to supreme court the duties of his office, the party requiring such act to be justice by rule done may apply to the supreme court, upon affidavit of the uifng^t'^'hi's'^''" facts, for a rule calling upon the justice, and also upon the °n*|rin's°ucr^" party to be affected by such act, to shew cause why such ^|i!|^'^°^^ act should not be done ; and if after service of such rule good cause be not shewn against it, the court may make the rule absolute, with or without costs as they may see meet, and the justice, upon being served with the rule ab- solute, shall obey the same and do the act required. ISTo action or proceeding shall be commenced or prosecuted against such justice for having obeyed such rule. 7. Where a warrant of distress or of commitment shall ^° action ehaii .. .. T .._be brought be granted by a justice upon conviction or order, which against a jus- either before or after the granting the warrant shall have ing^a°wa?ra?t'" been confirmed upon appeal, no action shall be brought ti^e^conyletion, against the justice granting the warrant for anything done by'appefi""^'^ ' thereunder, by reason of any defect in such conviction or order. 8. If any action shall be brought in a case where by Aotionsbrought this chapter it is forbidden, a judge of the court where it den m^ay'be'set is brought, upon application of the defendant upon affida- "•^^'^^■ vit, may set aside the proceedings with or without costs, as he shall see lit. 9. No action shall be commenced against a justice for Month's notice any thing done in the execution of his office, until one /ustfcf Sre month at least after notice in writing of such intended eon't™ teo^/no- action shall have been delivered to him or left at his usual tics; limitation place of abode, by the party intending to commence the action, his attorney or agent, in which notice the cause of action, and the courtin which it is intended to be brought, shall be explicitly stated, and upon the back thereof shall be endorsed the name and place of abode of the party in- tending to sue, and the name and place of abode or of business of the attorney or agent, if the notice has been served by an attorney or agent ; and the venue in every such action shall be laid in the county where the act com- 628 PROTECTION OP JUSTICES OF THE PEACE. [PART III. Chap. 1 50. plained of was committed ; and such action shall^ be brought within six months next after the cause of action shall have accrued. iendev amends 10- After uotice BO givcu, and before action commenced^ Tnto cou"t™pro- such justicc may tender to the party complaining, his attor- sTch'S^I ™ ^^y *^^' agent, such sum of money as he may think fit aa amends for the injury complained of in the notice ; and after action commenced, and before issue joined, the de- fendant, if he have not made a tender, or in addition to the tender, may pay money into court ; and the tender and payment into court or either of them may be given in evidence on the trial. If the jury shall be of opinion that the plaintifl' is not entitled to damages beyond the sum tendered or paid into court, then they shall find a verdict for the defendant, and the plaintifii' shall not be at liberty to elect to be non-suit; and the sum so paid into court, or so much thereof as shall be suflieient to satisfy the defen- dant's costs, shall thereupon be paid out of court to him, and the residue, if any, be paid to the plaintiff; or if the plaintitF shall elect to accept the money so paid into court in satisfaction of damages in the action, he may obtain a judge's order for the money, and that the defendant shall pay him his costs to be taxed, and thereupon the action shall be determined, and the order shall be a bar to any other action for the same cause. OTTheplrtof"^ 11. If at trial the plaintiff" shall not prove the action the plaintiff, brought withiu the time limited in that behalf, or that the notice was not given a month before action commenced, or if he shall not prove the cause of action stated in such notice, or that it arose in the county laid as venue in the margin of the declaration, the plaintiff' shall be non-suit or the jury shall give a verdict for the defendant. If plaintiff on 12. In all cascs where the plaintiff" shall be entitled to g'umj?rf°the^ recover, and he shall prove the levying or payment of any offence of pcualtv or sum of money under any conviction or order as which he was ^ , % •, ■ ^ ■Jy^ '' ■ ■ , .^ convicted, and part ot his damages, or ii he prove an imprisonment there- uSdue'^pmi'sh-" Under, he shall not be entitled to recover the amount of recover nomi" "the penalty or sum levied or paid, or any damages beyond nai damages three ccuts for such imprisonment, or any costs of suit, if it shall be proved that he was actually guilty of the offence of which he was convicted, or that he was liable to pay the sum he was so ordered to pay, and with respect to the imprisonment that he had undergone no greater punishment than that assigned by law for the off'ence of which he was convicted or for the non-payment of the sum he was so ordered to pay. Salntiff^oTre- ^^- ^^ ^'^^ plaintiff" rccovcr a verdict or the defendant ooveryof dam- allow judgment to pass by default, the plaintifl^ shall re- fiul'ooste. "'^ cover costs as if this chapter had not passed. If it be stated in the declaration that the act complained of was done' maliciously and without reasonable and probable TITLE XXXVIII.] PROTECTION OF CONSTABLES. 629 cause, the plaintiff, if lie recover a verdict for any damages. Chap. 151. or if the defendant allow judgment to pass by default, — - shall be entitled to full costs. OHAPTEE 151. OP THE PROTECTION OP CONSTABLES. 1. Before any action shall be brought against a con- ■^®™™,''„n|i stable, police, or other officer, or any person acting in his copy of warrant aid, and for anything in obedience to a warrant under the upon'^constobie, hand and seal of a justice, mayor or alderman, a demand uon''br"ught" in writing of the perusal and copy of such warrant, signed by the person making the same shall be served upon him personally or left at his usual place of abode for the space of six days. 2. If after such demand and a compliance therewith, if jii»'i<=e not an action be brought against such constable or other offi- when notice cer, or person acting in his aid, withoutjnaking the justice defentlnntThaii a party thereto, on the proof of such warrant upon the prooe''e'di§gs"'"'' trial, iudgment shall be given for the defendant, notwith- where action 1- ° J. I? • ■ T i- • ji ■ ,■ -rn ,^ against justice standing any want oi jurisdiction m the justice. If the and constawe. action be brought against the constable or other of&cer, or person acting in his aid jointly with the justice, then on proof of such warrant, judgment shall be given for the constable, other of&cer or person acting in his aid ; and if a verdict pass against the justice the plaintiff shall recover costs to be taxed so as to include the costs he may be liable to pay to the other defendant. 3. ISTo action shall be brought against a constable, or Limitation of • t fiction other officer or person acting in his aid, unless the same be commenced within six months next after the cause of action shall have accrued. CHAPTER 152. OF MADMEN AND VAGRANTS, AND OF THE CUSTODY AND ESTATES OF LUNATICS. 1. Any madman may be apprehended under warrant b?fS>reh"end- from two justices of the peace, and if his legal settlement the^pilelof'" shall be in any place within the county he shall be secured *|nil*fx^^'"°" within the same, and if such settlement be not within the ses hw provid- ed for. 630 . LUNATICS. [part III. Chap. 152. count}^, he shall be sent by the justices, by order under ■ their hands, to the place of his last legal settlement, and shall be there secured under a warrant from two justices of the peace for the county to which he shall be so re- moved, and the charges of removing, maintaining, and curing such person during his restraint, being first proved on oath before two justices, shall be paid out of the pro- ceeds of the personal property, or the rents of the real estate of such person, if any he have, over what will main- tain his family ; and which property or rents may for that purpose be seized and sold by the overseers of the poor of the place of such person's last legal settlement, under a warrant from two justices ; and if such person hath not any property or rents applicable therefor, then such ex- penses shall be borne by the inhabitants of the district within which such person shall have his last legal settle- ment, in the same manner as if he were a pauper charge- able to such district. Common va- 2. Pcrsons who Unlawfully return to any place whence fhai'wiJ'deem- they havc been legally removed as paupers, and idle and punished '^°^^ Wandering persons having no visible means of subsistence, and persons going about to beg alms, shall severally be deemed common vagrants ; and may be brought up and summarily convicted by a justice of the peace, and there- upon imprisoned for not more than one month. Srohited foi°" 3. When the relations or friends of any insane person, Insane persons, or the ovcrsecrs of the poor of the township of which he is an inhabitant, shall apply to the supreme court or a judge thereof to have a guardian appointed for him, notice shall be given to such insane person of the time and place appointed for hearing the case, not less than fourteen days before the time so appointed ; and if after a full hearing it shall appear to the court or judge that the person in question is incapable of taking care of himself, such court or judge shall appoint a guai'dian of his person and estate, with the powers and duties hereinafter specified. Every guardian so appointed shall have the care and custody of the person of the ward and the management of his estate until legally discharged. Allowance for 4. Whcu a guardian shall be appointed for an insane mI byTard?™" person the court or judge shall make an allowance to be paid by the guardian out of the estate of the insane person for all reasonable expenses incurred by the ward in defend- ing himself against the complaint. Debts and ex- 5. Evcry guardian of an insane person shall pay all just proSd for; debts duc from the ward out of his personal estate, if sufli- Si'a'If" °^^"'"'" cient ; and if not, out of his real estate, upon obtaining a license for the sale thereof from the supreme court or any judge thereof. He shall also settle all accounts of the ward, and sue for and receive all debts due to him, or may com- pound for the same, and give discharge to the debtors ; and TITLE XXXVIII.] LUNATICS. 631 he shall appear for and represent the insane person in all Chap. 152. legal suits^and pi-oceedings. 6. The guardian shall also manage the estate frugally dia'tfa°/toThe and without waste, and apply the profits thereof, as far as J™^^'''^'^ f"™'" may be necessary, to such insane person's comfortable and ' ' suitable maintenance, and that of his family ; and if such profits be insufiicient, the guardian may sell or mortgage the real estate upon obtaining a license therefor, and shall apply the proceeds, so far as may be necessaiy, for the maintenance and support of such insane person and his family. 7. On a sale taking place under a license to sell the Deeds of real real estate of an insane person, the guardian shall execute made^by guar- in the name of the insane person a deed thereof, which '^'^"' shall convey the same to the purchaser either absolutely or by way of mortgage as therein specified, in the same way as if executed by himself when of sound mind. 8. When any guardian so appointed shall remove from Guardians, how , . ■ ^ -t^ • ,^ ... , , ^ removed; new the province, or become insane or otherwise incapable oi guardians, iiow dicharging his trust, or evidently unsuitable therefor, the "pp"'"'® • supreme court or a judge thereof, after notice to such guardian,' if resident in the province, and to all others in- terested, may remove him ; and every guardian maj-, upon his request, be allowed to resign his trust, when it shall appear to the court or a judge proper to allow the same ; and upon every such resignation or removal, and also upon the death of any guardian, the court or a judge may appoint another in his stead. 9. Every guardian shall give bond with sureties to her g"vf bonds*to majesty, with the following conditions: ooSdiuifns^k First. — To make a true inventory of all the real estate, forth, and all the goods, chattels, rights and credits of the insane person that shall come to his knowledge, and to return the same into the supreme court at such time as the judge shall order. Secondly.— To dispose of and manage all such estate and effects, according to law, and for the best interests of the insane person, and faithfully to discharge his trust in relation thereto. Thirdly.— To render an account- on oath of the property in his hands, including the proceeds of all real estate sold by him, and of the management and disposition of all such property, within one year after his appointment, and at such other times as the judge shall direct ; and-=- Fourthly. — At the expiration of his trust to settle his accounts with the court or a judge, or with the insane person in case of his restoration to reason, or in case of his death with his legal representatives, and to pay over and deliver all the estates and eiFects remaining in his hands or due from him on such settlement to the person lawfully entitled thereto. 632 LUNATICS. [part III. Chap. 162. 10. In all cases where it sliall be given in evidence, ifinding of jury upon the trial of any person charged with treason, murder, sM^pei^aon"'. ^^ feloHj, Or any misdemeanor, that such person was insane at the time of the commission of such offence, and such person shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the commission of such oft'ence, and to declare whether such person was acquitted by them on account of such insanity, and if they shall find that such person was insane at the time of the committing such offence, the court before whom such trial shall be had shall order such person to be kept in strict custody, in such place and in such manner as to the court shall seem fit, until the pleasure of the gover- nor in council shall be known ; and it shall thereupon be lawful for the governor in council to give such order for the safe custody of such person during his pleasure in such place and in such manner as to the governor in council shall seem fit ; and in all cases where any person has been acqiiitted of any such offence on the ground of insanity at the time of the commission thereof, and has been detained in custody as a dangerous person, by order of the court before whom such person has been tried, and shall remain in custody, it shall be lawful for the governor in council to give the like order for the safe custody of such person during his pleasure, as he is hereby enabled to give in the cases of persons who shall hereafter be acquitted on the ground of insanity. Proeeedings on 11. If any person indicted for any offencc shall be in- fn'saueTersons. sauc, and shall, upou arraignment, be found so to be, by a jury lawfully empanelled for that purpose, so that such person cannot be tried upon such indictment, or if, upon the trial of any person so indicted, such person shall appear to the jury charged with such indictment, to be insane, it shall be lawful for the court before whom any such person shall be brought to be arraigned or tried as aforesaid, to direct such finding to be recorded ; and if any person charged with any offence shall be brought before any court, to be discharged for want of prosecution, and such person shall appear to be insane, it shall be lawful for such court to order a.jury to be empanelled to try the sanity of such X3erson, and if the jury so empanelled shall find such person to be insane, such person shall at once be appre- hended and dealt with as in the last preceding section directed. Expenses, how 12. The reasonable expense of apprehension and re- paid, moval being verified on oath before the custos, or any two justices of the peace, either before or after such removal^ and by them allowed, shall, upon their order, be paid by the county treasurer out of the county funds to the person appointed to apprehend and remove such insane person, and such expenses shall afterwards be levied by warrant of TITLE XXXVIII.] LUnATIOS. 6 3 distress, to be signed Hy two justices ot' tlie peace, on any Chap. 152. goods or chattels of such insane person, or may be realized out of the real estate of the insane person, or the rents thereof, as provided in this chapter ; and for want of such property shall be a charge against the county in which such insane person had his last legal settlement as herein- after mentioned. 13. And lor the better prevention of crime being com- commmaifie! mittedby persons insane, if any person shall be discovered gjij"^™® 'p®'" and apprehended under circumstances denoting a derange- ment of mind, and a purpose of committing some crime, for which, if committed, such person would be liable to be indicted, it shall be lawful for any two justices of the peace of the county, before whom such person may be brought, to call to their assistance any legally qualified physician or surgeon, and if, upon order and examination of the said person so apprehended, or from other proof, the said justices shall be satisfied that such person is insane, or a dangerous idiot, it shall be lawful for the said justices, by warrant under their hands and seals, to commit such person to the jail of the county, there to be kept in strict custody until such person shall be discharged by the order of two justices of the peace, one whereof shall be one of the justices who has signed such warrant, or by one of the judges of the supreme court, or until such person shall be removed, by order of the governor in council, to a proper lunatic asylum, or to the custody of guardians appointed under this chapter. 14. Any two justices may enquire into and ascertain, ^hl^^^lSe- ^" by the best legal evidence that can be procured under the ^^^^ mfane"*^ circumstances, of the personal legal disability of such insane persons. person or dangerous idiot, the place of the last legal settle- ment of such person, or of any other person now or here- after tried and acquitted on the ground of insanity, or of any person so found insane, under any of the provisions of this chapter ; and it shall be lawful for the said two justices to make aii order, under their hands and seals, upon the overseers of the poor of such township or place where they adjudge him to be legally settled, to pay all reasonable charges of examining such person and conveying him to such county jail, and to pay such weekly sura for his maintenance in such place of custody as they, or any two justices, shall, by writing under their hands, from time to time direct ; and where such place of settlement cannot be ascertained, such order shall be made upon the treasurer of the county where such person shall have been in custody or apprehended : provided always that nothing herein con- tained shall be construed to extend to restrain or prevent any relation, guardian or friend from taking such insane person or dangerous idiot under his own care and- protec- tion, if he shall enter into sufficient recognizance for his peaceable behaviour or safe custody, before two justices of 80 634 LtlNATICS. ■ [PAKT m> Chap. 152. the peace, or the court of sessions, or one of the judges of the supreme court : provided, also, that the overseers of the poor of the township or place in which the justices shall adjudge any insane person or dangerous idiot to be Appeal. settled, may appeal against any such order, to the next general or special sessions to be holden for the county where such order shall be made, in like manner, and, under the like regulations and restrictions as against any order of removal, giving reasonable notice thereof to the clerk of the peace of the county upon whose rates the burthen of maintaining such insane person or dangerous idiot might fall if such order should be invalid ; and such clerk of the peace shall be respondent in such appeal, which appeal the justices of the peace assembled at the said general or special sessions are hereby authorized and empowered to hear and determine in the same manner as appeals against orders of removal are now heard and determined. Expenses in- 15. jij[ charges hereinbefore mentioned, that may be bepaidoutof incurred by any overseers of the poor for any township or insaneperson.^ placc, or by any couuty, under this chapter, the same being iirst proved on oath before two justices, shall be repaid to the said overseers, or to the treasurer of the county, respec- tively, as the same may have been incurred, out of the proceeds of the personal property, or the rents of the real estate, or, if necessary, the real estate itself, of such insane person or dangerous idiot, if any he have over what will maintain his family, which may, for that purpose, be seized and sold by the said overseers or county treasurer, under a warrant from two justices, when^quliified ^^- ^^7 psrson shall be deemed a legally qualified to act. physician or surgeon, for the purposes of this chapter who would not be disqualified from recovering a fee or reward for his professional services, by chapter fifty-six. LUNATIC ASYLUM. Title, object 17. The title of the above institution shall be the " pro- management, . • t ^ .^p . . -, . -, . t-utt Tisitora,&c. vmcial hospital for the lusanc, and its object shall be the most humane and enlightened curative treatment of the insane of this province. The financial and general man- agement of the hospital, shall be vested in the board of works. The governor in council may at any time instruct or restrain the board whenever it shall be necessary to ensure economy, to enforce discipline, or to protect the inmates of the asylum. The undermentioned persons shall be ex officio visitors of the hospital, namely, the gover- nor, the chief justice, the provincial secretary, the presi- dent of the legislative council, the speaker of the house of assembly, and the heads or authorized representatives of all the christian churches in this province. The board of works shall make all needful bye-laws for the government of the hospital, not inconsistent with the laws of the pro- TITLE XXXVIII.]- LUNATICS. 635 vince. But before such, bye-laws shall have effect they Chap. 152. sball be submitted to and approved by the governor in council. 18. The governor in council shall appoint a medical fntencien™his''" superintendent, whose salary shall be two thousand dollars salary. per annum, without board and lodging. 19.^ The medical superintendent under the general to appoint sub- direction and with the concurrence of the board of works ce,ra°&e'! ° shall from time to time appoint such persons as he may deem qualified, to perform the duties of the various de- partments connected with the institution and premises, and shall determine their rate of salaries and wages. 20. The medical superintendent shall be the chief exe- f^Snt'to re: cutive ofiicer of the hospital. He shall be a well educated swe onpre- physician, and shall with his family, reside on the pre- mises, and devote his whole time to the welfare of the institution. 21. The expenses of all pauper lunatics now or here- Pa^iwiunatioa after to be confined in the hospital for the insane, shall be chargeable on the respective counties or districts, in which they shall have obtained a legal settlement, and the same shall be a county or district charge to be assessed, levied and collected in the same manner as county rates. 22. In case the grand jury and sessions of any county in case of re- which shall be liable for the expenses of lunatics confined to^ass°e's^1fou?t in the asylum, shall refuse or neglect to assess the county ^^'''" '«"«'™^- therefor, the supreme court shall, upon application, amerce such county for the amount due, which, with the costs and expenses attending such amercement, shall be assessed, levied and eollecte'd, vmder the order of the supreme court f°^' '=°"°='^<* by the same persons whose duty it shall be to assess, levy and collect the county rates, aiid in the same manner ; and the same when collected shall be paid to the parties res- pectively entitled thereto. 23. If the guardians, or other parties to whom the ex- in ease patients pense of any patient who shall be in the hospital is charge- fo™. °° '"'* able, shall neglect, or upon demand made shall refuse to pay to the receiver general the expense of the care, maintenance and removal of such jDatient, and also in the event of death, the funeral expenses of such patient, the board of works are hereby authorized and empowered to collect the same as debts of a like nature are now col- lected. 24. Whenever any ijerson shall be so deranged in his ^^'"\<^°^f°- . '___ *'■'■ .-, o ceecting lo cou- intellect that he cannot be permitted to s:o at large with- vey insane per- ,T . jr. . '■ ,° ,0-,. son to hospital out danger, or is suttering unnecessary duress or hardship, for insane. it shall be the duty of any two justices of the peace of the county in which such insane person may be found, on being applied to-for that purpose, to investigate the case, and summon to their assistance any one or more medical practitioners, duly qualified and practising within the 636 LUNATICS. ■ [part III. Chap. 152. province, and if sucli insanity be proved and certified by such medical practitioner or practitioners in writing, the sheriff or justices shall issue their warrant directed to any constable of the county, who shall apprehend and convey such insane person to the provincial hospital for the insane. one°med!oai^'' ^^ °^se such pcrsou shall havc been certified to be insane Xmedbefof ^^ ^^^^ '^^^ mcdical practitioner before his apprehension, admission. he shall be again examined by two duly qualified medical practitioners, to be appointed by the commissioners, before he shall be admitted into the hospital. Such medical certificates to be in the form in schedule to this chapter. In case of va- 25. Whenever there are vacancies in the hospital, the m^y atoiTpa- board of works may admit, under special agreement, cases tients. jfQj, -^^jiiic}^ admission is sought, a preference being given to those of most recent occurrence, and hence most likely to be benefitted by hospital treatment. may make°*^ 26. The board of works in the case of patients in whose mints' rlgOTd- behalf admissiou is sought into the hospital, and where, in ingboardof their judgment, there are circumstances justifying a de- pa len s. parture from the ordinary rates, may make special arrange- ments for the amount and payment of board. dfgenrpatiMts 27. "Whcu an insane person in indigent circumstances, I'i'nuotoin"''^ whose insanity shall have commenced within a year prior tinne to p!iy. to his Or her admission, shall have been sent to the hospital by friends who have paid their bills therein for six months, upon an application under oath in his or her behalf, stating the inability to pay of the parties legally liable for his or her support, the application being endorsed by the medi- cal superintendent, the general sessions of the county of legal settlement of such insane person, are authorized and required to raise a sum of money suflicient to defray the expenses of such insane person for one year, and to pay the same to the receiver general, and they shall repeat the same for two succeeding years, upon like application, duly verified. of Tnlane^p'ef-" ^8. Wheucvcr the real and personal estate of any lunatic sons not suffi- or insaue person, not being a pauper, or of his or her hus- penses, they ' band, father, or mother, is not more than sufficient to STheXnds°of maintain the family of any such person, the expenses of hospital. ^]je maintenance of the insane person in the hospital may be defrayed in whole or in part from the funds of the hospital, as the commissioners may, on investigation, order and direct, pattents."^"'""' ^9. Indigent persons and paupers shall be charged for medical attendance, board, and nursing, while residents of the hospital, no more than actual cost ; and patients who are not chargeable upon townships, districts, or counties, shall pay according to the terms directed by the commis- sioners having relation to the accommodation desired and afforded. pitieMs^' °^ 30. The board of works, upon the medical superinten- dent' s^jcertific^te of recovery, amendment, harmlessness, or TITLE XXXVIII.] LUNATICS. 637 unsuitableness, may discharge any patient, except those Chap. 152. under a criminal charge, and the parties liable for the maintenance of such patients shall be duly notified of such discharge, and the terms thereof. Provided that patients pio^'^o- under criminal charge shall be discharged only by an order from the governor in council. 31. Parties committing insane patients to the hospital ^°^^J°^ '^^' shall execute a bond, with sufficient security, for payment of expenses, which bond may be sued as often as shall be necessary, and recovery had agreeably to chapter respect- ing summary suits. 82. No medical man shall be held responsible to any ^t'^refponsrbie patient or their representatives for any certificate thus for certificate. granted. 33. Kesident officers and other employees of the hos- J/rt'^txem^- pital, while actually engaged as such, shall be exempt from tion'of. militia duty, from serving on juries, from county and township offices. 34. In case the board of works hereafter shall require w'i^kf requfre*^ any further lands or privileges, or to re-enter and re-open °f'^^J^^^Jl' *"• lands where the pipes are laid, the proprietors or occupiers whe°J'^p'ipIs shall be entitled to such compensation as may be agreed ''*™' upon with the board of works, and in case of no agree- ment being entered into, either party may proceed in such case, in the same manner as directed for the first occasion by chapter forty-one acts of eighteen hundred and fifty- nine, which shall be considered in force for that purpose. 35. The governor in council may order the board of ^o°Jnc?rma"' works to proceed with the erection and furnishing that authorize erec- portion of the hospital designed for unruly patients, and for'lrarui'y'^ '"" may pay for the same out of the ordinary revenues, or may nly Sorrow borrow the necessary funds on debentures of such amount ^"°<*'*- at such rate of interest not exceeding six per cent, and Repayment. redeemable at such times as the governor in council may direct, or in such a manner as may be most advisable. 36. The medical superintendent, and employees of the Employees ex- lunatic asylum shall not be liable to perform statute labor. stetuteTsSor. SCHEDULE. Form of medical certificate. I, the undersigned [name in full] being [_state qualifica- tion'] and in actual practice, hereby certify that I, on the day of , 18 — , at [state locality,] personally ex- amined , of [state residence and occupation,] and that the said is a person of unsound mind, and a proper person to be taken charge of, and detained under care and treatment, and that I have formed this opinion upon the following grounds, viz. : 1. Facts indicating insanity observed by myself: [here state appearance, conduct and conversation.] 638 LIBERTY OP THE SUBJECT. [PAKT III. Chap. 153. 2. Facts indicating insanity communicated to me by others : [state the information and from whom.'] (Signed) Dated at , this day of , A.D., 18 — . ^ [ Two certificates are required in every case. Each examina- tion should be separate.] OHAPTEE 153. OF THE LIBEETT OF THE SUBJECT. For removing doubts : Certain acts of j^ ^he act of the imperial parliament, passed in the •imperial parlla- , , . „ , ^ _li • '^ i • r^^ t ,t -i to have;forcc the thirty-iirst year ot the reign oi king Charles the second, inthisproTince ^^^-^jg^ « ^n act for the better securing the liberty of the subject and for the prevention of imprisonment beyond the seas," and the act of the imperial parliament, passed in the fifty-sixth year of the reign of king Greorge the third, entitled " an act for more effectually securing the liberty of the subject," and all acts of the imperial parlia- ment passed in addition to, or amendment of, or on the same subject as the said recited acts, or either of them, have fall force and effect in this province as far as are ap- judges of su- plicable within this province ; and the supreme court and ?am™^power'as ^"^^ judgcs thereof havc the same authority and power ^dges^in over cases within the purview of the said acts here as the Hug an . courts mentioned in the said acts and the judges thereof Rights, 4e., eon- have in England; and the rights and remedies, and the habftantTof"' obligations, punishments and penalties conferred and im- this province. pogg(j ijy the Said Statutes, or either of them, are conferred and imposed upon and made applicable to persons within this province, as fully as if the said acts were re-enacted and specially extended to the courts, judges, officers, and to persons within this province. Not to take 2. The preceding enactment shall not be construed to law right to abrogate or abridge the remedy by the writ of habeas cor- habeas corpus. ^^^ ^^ common law, but the same exists in full force, and is the undoubted right of the people of this province. Habeas corpus 3_ The Writ of habeas corpus, whether under statute or bJfaju(fg^^OT common law, may be applied for to and be granted by a the court. judge of the supreme court, returnable before himself or returnable before the court, and may be applied for to and may be granted by the court, returnable to itself or to a Preamble. judgc ill vacatiou ; and whereas, provisions may be made for affording further facilities for relief iji case of persons illegally restrained of their liberty, especially where it would be attended with unnecessary delay, expense, or TITLE XXXVIII.] LISBMY OF THE SUBJECT. 639 inconvenience, in bringing the body of the party before Chap. 153. the court or judge, 4. Therefore, upon sufficient ciiiise shewn to the court, court or judge or to any judge of the supreme court, by or on behalf of OTor|e"inst"ad any person confined in any jail or prison, such court or °f w""-- judge may, in the discretion of the court or judge, and is hereby empowered, (instead of granting hat for a writ of habeas corpus cum causa requiring the keeper of such jail or prison to bring the prisoner before the court or judge in order that the legality of such imprisonment may be en- . quired into and discharge, bailment or recommitment had thereon,) by rule of the said court, or by order of the judge in writing, signed by him with his name, addition of office, and place of residence, to require and direct such keeper to return to the court or to the judge whether or no such person is detained in prison, together with the day and cause of his having been taken and detained. 5. It shall be the duty of such keeper immediately upon Duty of keeper the receipt of such order to make a true and full return in ^de^r?"^ ° writing to the court, or to such, judge, of the day and cause of such taking and detention to the same effect as a return to a writ of habeas corpus would now be made ; such return always to include a copy of the process, war- rant or order, upon which the said prisoner is held, where the same is of a criminal nature, or upon any summary complaint or conviction before any justice of the peace ; and such judge may enforce obedience to such order by process of contempt, in the same manner as he may com- pel proper return to be made to a writ of habeas corpus. 6. TJpon return to such order, the court or iudffe may upon return of ^^ ^ oTuGr court or proceed to examine into and decide upon the legality of judge may pro- the imprisonment, and make such order, require such veri- '"^^^' fication, and direct such notices or further returns in respect thereof as may be deemed necessary or proper for the pm-- poses of justice ; and may by rule of court or by order in writing signed as aforesaid, require the immediate discharge from prison, or may direct the bailment of such prisoner in such manner and for such purpose and with the like effect and proceeding as is now allowed upon habeas corpus ; such bail when ordered, to be entered into before any jus- tice of the peace specially named in such order, or any justice of the county or place where there is no such nomi- nation. 7. It shall be the duty of such keeper immediately Keeper to re- upon the receipt of any rule of court or order of a judge prisoner ^and° in relation to a prisoner in custody, to communicate the ™™"''^ ""p^- same to such prisoner and to give him a true copy thereof if demanded, and to obey the requirement of the same. 8. In all cases whether under statute or at common law court or judge or under the provisions of this chapter, it shall be lawful ^o^uXnof for the court or a judge to require the production of all §ooumentf^'&c. 640 LIBERTY OP THE SUBJECT. [PAKT III. Chap. 153. such proceedings, documents and papers, relating to the matter in question, before whomsoever and in whosoever possession as to the court or judge may appear necessary for the elucidation of the truth, and may also examine into the truth of the return to any writ of habeas corpus, or rule or order granted under this chapter, in the same man- ner as such examination is provided for in cases under the before mentioned act of parliament, passed in the fifty- sixth year of the reign of king Greorge the third. ordisotoSee 9. Every wilful neglect or disobedience of a rule of a^iHsilmea? court, or the Order of a judge in relation to a prisoner, n°i' shall be deemed a misdemeanor, and punishable as such by fine and imprisonment, or either, at the discretion of the court. wrb^any*"" 10- Thc matter of the return made to the order of a other judge, judge may be heard and decided on by any other judge of the supreme court, who shall have the same power and jurisdiction in respect thereof as the judge by whom the first order was made. M^weTeeper ^^- '^^ Order made under this chapter shall require or to discharge for enable the keeper of any iail or prison to discharge the other matter. . « '■ -j. j. i j.t. j.i j.i j. prisoner irom any commitment or charge other than that specified in such order, but it shall be the duty of such keeper in every return to specify the severaPcauses of commitment and detention, if more than one ; and if be- tween the time of making the return and receiving an order for the discharge or bailment, any other warrant, process or order shall have been delivered to him, requir- ing the detention of the prisoner upon any charge of a criminal nature, or summary complaint or conviction, such keeper shall without any further order make and transmit to the court or judge an additional return, with a copy of such warrant, process or order, and the time of receiving the same, which may be dealt with by the court or judge as if made pursuant to an order for that purpose granted. not to'^prTvInt 12. Wothiug in this chapter contained shall extend or civil action. \)q construcd to deprive any person who may have been falsely imprisoned from his remedy by civil suit against any person who may have illegally caused such imprison- ment, but the court or judge by whom relief may be afforded may by his order exempt any such keeper of a jail from civil suit who may appear to him to have acted upon the warrant or order of any judge or justice, accord- ing to the requirements of the same, without malice or evil intent, although such warrant or order may be bad in form or substance ; and any such order of exemption may be pleaded in bar to any action brought against such keeper or notice given thereof as an additional ground of defence under any act of this province in such case made and provided. title xxxix.] limitatioij of action^. 641 Chap. 154. TITLE XXXIX. OHAPTEE 154. OF THE LIMITATION OF ACTIONS. 1. S"o action of assumpsit, trespass quare dausum fregit, reqiu?! to b'e '^ detiniie, trover, replevin, debt grounded upon any lending sixyla's!'"'"'^ or contract without specialty or for rent, account, or upon the case, shall be brought but within six years next after the cause of action. 2. In actions grounded upon any simple contract, no taKTolIe''out acknowledgment or promise, by words only, shall be ^^^^j^e'^n"'^!.;. deemed sufficient evidence of a new or continuing con- tmg; joint con- tract, whereby to take any case out of the operation of the tca'Svs' &a^^' preceding section, or to deprive any party of the beneUt pro"*rof se-'*' thereof, unless such acknowledgment or promise shall be tor™eo-ex'™u- in some writing signed by the party chargeable thereby ; tori &o. and where there shall be two or more joint contractors or executors or administrators of any such contractor, no such joint contractor, executor or administrator, shall lose the benefit of the preceding section by reason only of any written acknowledgment or promise made or signed by any other of them. But nothing herein contained shall alter or take away, or lessen the efiect of any payment of any principal or interest made by any person whomsoever ; and in any action to be commenced against two or more joint contractors, or executors or administrators, if it shall ap- pear at the trial or otherwise that the plaintiff though barred by this provision as to one or more of .such joint contractors, or executors or administrators, shall neverthe- less be entitled to recover against any other of the defen- dants, by virtue of a new acknowledgment or promise or otherwise, judgment may be given and costs allowed for the plaintift", as to such defendant against whom he shall recover, and for the other defendants against the plaintifl'. 3. If any defendant in any action on any simple con- issueonpisaiii tract, shall plead any matter in abatement, to the effect non-jSer un- that any other person ought to be jointly sued, and issue te/,h!)w*found. be joined on that plea, and it shall appear at the trial, that the action could not by reason of this chapter be main- tained against the other person named in such plea, the issue joined in such plea shall be found against the party pleading the same. 4. ifo endorsement or memorandum of any payment, Endoraementg ■ ^.3 ■ . 1 -n •'j.'- -^i ' by payee not written or made upon any promissory note, bill of exchange evidenca. or other writing, by or on behalf of the party to whom 81 642 LiMia'ATioN of action. [ipam itt. Ohap. 154. such paytoent shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation thereof. ffmpil oontoct 5. This chapter shall apply to the case of any debt on mte'" *^ ■'*'''" simple contract, alleged by way of set ojff on the part of any defendant, either by plea, notice or otherwise. fafi^^^to^iyl 6. JSTo action shall be maintained whereby to charge debt^contracted any persou upon any promise, made after full age, to pay must be in vTri- any debt contracted during infancy, or upon any ratifica- '°°' tion after full age, of any promise or simple contract made during infancy, unless such promise or ratification shall be made by some writing signed by the party to be charged therewith. tuai^aocouSs' 7. In an action to recover a balance due upon a mutual caSselhfwcom- opcu and Current account, where there have been recipro- puted. qq] demands between the parties, the cause of action shall be deemed hereafter to accrue from the time of the last item proved in the account claimed, or proved to be charge- able on the adverse side, reqil^e to'be'^ 8. 'No actiou of trespass for assault, battery, wounding brought within or imprisonment, and no action on the case for words, and one year. ^^ actiou Or prosecutiou for taking illegal interest, shall be commenced but within one year next after the cause of action, or after the oftence was committed. minors, ll'T"* 9- Actious by or against minors, married women, per- fime^'tcrbe ^*^^® iusauc, imprisoned or out of the province, may be brought. commenced within the like period after the removal of the disability, as is allowed for bringing the action in ordinary cases. me^riyCTsed ^*^- ^^ ^"^ ^^J actlou judgment be given for the plaintiff, orarrested, and the samo be reversed by error, or if judgment be tion may be " arrcstcd after verdict, then the plaintiff may commence a brought. ^g.^ action within one year after such judgment reversed or arrested. acuSfor?and3 H- ^^ ^utry iuto any lands shall be made, or action to be within thcrefor brought, but within twenty years after the right descended, or cause ot action accrued. MnTunto^fs- ^^- M^inors, married women, persons insane, imprisoned abilities, within or out of the proviuce, being and continuing under such what time al- -,.,.,. ^ , ' -. y t- t . -i. lowed to bring cusability, may make such entry or brmg such action withm actions. ^^^ years after the removal thereof. But no such action shall be brought or entry made but within forty years after the right or action shall have descended or accrued. ^Mm^'orhOT 13. No claim for lands or rent shall be made by her tolixtyy^irl.'^ majesty, but within sixty years after the right of action to recover such lands or rent shall have accrued. title xl.] costs and fees. 643 Chap. 155, TITLE XL. OHAPTEE 155. OE COSTS AND EEES. 1. Fees for the services mentioned in the scliedule to ^fif oh°aptef '"^ this chapter shall be as therein prescribed. prescribed. 2. Any person taking greater fees shall, for each offence, kfnl^'i/eJsiTO forfeit to the party aggrieved forty dollars ; which sum, tees. with such excessive fees, may be recovered by him in an action for debt. 3. Actions for such forfeitures shall be brought in the Actions for pe- T - ^-. .-, -,®.,T.. nalties, where county where the onence was committed, and within six to be brought ; months next after the date of such offence. their nmitatiow 4. The prothonotaries shall, whenever required, furnish tofurn?s°i m? to the attornies or parties requiring the same, a bill of the °^'^1™^"*™ items of his own, the crier's and constable's fees, on penalty of twenty dollars ; and nothing shall be taxed for such fees if the demand be made and not complied with before taxation of the costs in the cause. SCHEDULE. Fees to he taken at the frovincial secretary's office, and paid into ■the treasury. Each certificate, under the hand of the governor and the great seal of the province, four dollars. Each certificate, under the hand of the governor and the seal at arms, two dollars. Each certificate, under the hand and seal of the pirovin, cial secretary, one dollar. Every search, twenty cents. Copies of grants, proceedings in council, or other papers, per folio, ten cents. Prothonotary' s fees. Entering action, filing oath, warrant or praecipe, $0 50 Sealing and signing every writ, execution, or other process, 20 Filing every writ and entering return, 10 Filing declaration and all other pleadings, 10 Entering appearance, 30 Entering and filing every rule of court, 10 Copy of every rule when given by prothonotary, 10 For drawing and striking a special jury, and for copies of the lists furnished to the respective parties and all other services connected there- with, 2 00 644 COSTS AND FEES. [PAET III. Chap. 155. Swearing and impanelling jury, |0 20 " " Swearing each witness or constable, 10 Taking and entering verdict, 20 Entering judgment, 40 The prothonotary at Halifax, for the entry of a judgnjent not belonging to the supreme court at Halifax, and for the transcript thereof, 50 Filing retraxit or discontinuance, 10 Copies of all papers, per folio, 10 Every exhibit in a cause filed in court, 06 Taking af&davit in court, 20 Filing affidavit, 10 Searching records, 10 Entering every default, 10 Drawing and taking every recognizance, 20 Entering every non-suit, 10 Sealing and signing every subpoena, 20 Every ticket, 10 Continuance of every cause, 20 Filing the roll in every cause, 20 Taxing bill of costs, 20 Copy of docket and certificate of judgment, 50 i)itto of discharge of ditto, 20 In judgments on undefended declaration cases, by confession or default, 2 50 In judgments on undefended foreclosure cases, 3 50 In summary and appeal suits. Signing and sealing writs, 50 For all other services, including final judgment, when not tried by a jury, 50 For every alias summary writ and praecipe, 40 In sub-summary suits. Signing and sealing writ, 20 Signing judgment, 30 Every subpcena or ticket, 10 l^To commission shall be allowed or deducted from money ^Daid into court under any rule or plea. Commissioner's fees. For administering oath, 20 For marking writ, 20 Taking depositions of witnesses, each witness, 1 00 And for taking depositions, per folio, 10 Travelling fees, when necessary, per mile. 05 Sheriff's fees. Serving summons and making return thereof, 70 TITLE XL.] COSTS AND FEES. 645 Serving every other writ of mesne process or scire Chap. 155. facias, and making return thereof, $1 00 Serving every execution and making return thereof, 1 00 Returning every execution where the same has not been served, 30 Serving every writ of possession and making return thereof, ' 3 00 Travel per mile from the place of residence of the sherifl' to the place where he shall serve a writ, 10 Two cents per mile from the place of residence of the sheriff" to the court house where the writ is returnable, provided the same be out of the county, and also provided the writ be actually served. Every bail bond, 60 Summoning a jury in each cause, 50_ Executing writ of inquiry, summoning jury, and making return, 2 00 Returning every special jury, 3 00 On execution or attachment where a sale shall take place extended on personal property, sale and payment of the money to the party or his attor- ney, as follows : Eor any sum not exceeding $200, five cents in the dollar. From |200 to $400, four cents in the dollar. For all above $400, two and a half cents in the dollar. In cases where there shall be no sale, one half the above fees on actual payment of the money. For making inventory of goods attached, such rea- sonable fees as shall be taxed by the court out of which the writ shall have issued. For certifying copy of attachment levied on real estate and making and delivering to the regis- trar of deeds copy of the appraisement of the real estate, 1 00 On the sale of all real estate, whether by virtue of an execution or attachment, or by virtue of any rule or order, and payment of the proceeds to pai'ty or his attorney, two and a half cents the in the dollar. Every deed, 2 00 Bringing up prisoner by habeas corpus, 1 00 Attending pi-isoner before judge on any special occasion, 75 For every member returned duly elected to serve in general assembly, to be paid out of the trea- sury in lieu of all other expenses chargeable upon the treasury, 6 00 For summoning the grand and petit juries, a sum not exceeding $20 for both juries, if allowed by the grand jury and approved by the sessions. 646 COSTS AND FEES. [PAM III. Chap. 155. Ajifraisefs fees. For appraising goods or real estate taken under at- tachment, each appraiser, fO 50 When property is extensive and complicated, for each day actually employed, each appraiser, 70 Juror's fees. Petit and special jurors, per day, 50 Travel per mile from place of residence to court house, 10 -') Witness' fees. For attendance, per day, 50 Travel per mile, coming and going, 05 To be the same in every court. Plaintiif or defendant no witness fees except where called by the opposite party. Crier's fees. For every default on non-suit, 07 " calling jury in each cause, 10 " every verdict, 07 " swearing every witness, 05 " discharging a pai'ty by proclamation, 10 On everj' bill of costs taxed in the country, 10 " " " Halifax, 20 Constable's fees in supreme court. Attending jury in each cause, 20 Serving every warrant or summons, 20 Summoning a jury by warrant from coroner, and attendance per day, 50 Travel per mile the same as sheriff. Coroner's fees. For every inquisition, including $2.40 for fees of jury and 50 cents for fee of constable, to be paid by the province, 10 00 Any extraordinary and necessary expense attending the inquesf or burial of a deceased person, if approved of by the grand jury and court of ses- sions, to be a county charge. The same fees as a sheriff in cases where he dis- charges the duty of a sheriff. Arbitrator's fees under a rule of court. Reasonable fees to be taxed. Medical practitioner's fees. For attendance and evidence before coroner, 5 00 lliLB^ XL.] eosTS AND ¥tE&> attorney's pees. In sub-summary caused-. Attorney, Subpcena and ticket, each. Execution, In summary and appeal causes, For writ, praecipe, affidavit and declaration, All other proceedings, until final judgment, Subpoena, Tickets, Executions, Brief and copy when tried by a jury, not less than $1 50, nor more than |12 00. In all other causes. Retaining fee. One letter, "Warrant of atttorney, Praecipe, Every writ, summons, or other original process, Copy, If containing declaration, additional. Copy of same. Particulars of demand, per folio. Copies, per folio. Term fee, Notice of trial, notice to produce, and other neces- sary notices, in a cause, Copies each. Capias, Copy, Affidavit to hold to bail, Entering appearance. Brief and copies, not less than $1 50, nor more than $20 00, to be taxed by the court. Every continuance. Every discontinuance or retraxit, Attending, balloting, or striking special jury. Attending taking every inquisition before sheriff, Making bill of costs. Attending to get same taxed, Arguing a demurrer, special verdict, motion lor new trial, or other special motion. Trial fees, All rules and copies, each, Every subpcsna, Every ticket. Travel per mile for service, the same as to sheriff. Attending the examination of every witness taken before a judge or commissioner, 00 Chap. 155. 2 20 50 2 50 3 25 40 50 1 20 00 00 30 30 1 00 50 1 00 50 20 10 1 00 75 25 1 00 50 50 50 20 20 00 00 50 60 2 00 4 00 20 40 50 2 50 648 COSTS AND FEES. [PAKT III. Chap. 155. Every necessary attendance before a judge, $1 50 Every execution, habeas corpus, writ of error and writ of inquiry or revivor, each, 1 20 Drafting issue, per folio, 10 Engrossing same, per folio, 10 Drafting record, per folio, 10 ■ Engrossing same, per folio, 10 All other drafting necessary to be done by an at- torney in the conducting of a cause, per folio, 20 All necessary engrossing, per folio, 10 All necessary postages. All fees paid registrars of deeds for certified copies of papers necessary for the trial. Amount paid for plans or copies of plans to be used on trial or argument in the discretion of the judge. COUNSEL FEES. In summary, sub-summary, or appeal causes, when tried before a jury, to be taxed by the court, not to exceed fourteen dollars. In all other causes after appearance and plea, in argu- ments for new trials and in special cases submitted, and in bills taxed between attorney and client, to be taxed at the discretion of the judge, not to exceed twenty dollars, but not to be allowed in cases of default nor unless there shall have been a plea pleaded. FEES IN EQUITABLE SUITS. The same fees as now allowed in the supreme court, with the following additions : Attorney's fees. Where the writ exceeds five folios the court or a judge may allow for the excess, being not more in any case than twenty folios in all, for each folio, > $0 20 Counsel fee for examining each equitable pleading, 2 50 Counsel fee in all equitable suits to be taxed in any .stage of the cause, at the discretion of the judge, but not to exceed 20 00 Drawing every brief deemed by the judge necessary in an equitable suit, from $4 to $20, at his discretion. Every deed in foreclosure, and other equitable suit, 5 00 Every attendance before a master, shewn to have been necessary by affidavit, and approved of by the judge, 1 50 All necessary expenses incurred in serving defend- ants out of the province, in advertising,- and for postages. lltLE XL.J COSTS AND .FEB^. 64& Master's fees. Chap. 155. Every attendance on a reference, shewn to have been necessary by affidavit, and approved of by the judge, $1 50 Every report, 1 50 And for every folio beyond six folios, hut not to ex- ceed twenty folios in all, 20 Administering every oath and signing jurat, 40 All necessary travel, going and returning, per mile, 05 On sales of land in foreclosure and other equitable suits : — For sheriff or master attending the sale and receiving and paying over the amount, in lieu of all poundage, 10 00 COURT OF MARRIAGE AND DIVORCE. For the governor, vice president and judges, for each day they shall actually attend, each 4 00 Advocate and proctor's fees. Retaining fee for counsel. Proxy, Draft of libel or other pleading, per folio, Engrossing same, per folio, Entering appearance, Every subpoena, citation or other writ, Copies for service, each. Drawing affidavit of service of subpoena, citation, or other process or proceeding. Every petition necessary in conducting a cause, Every order. Counsel fee on making or defending every special motion, not to exceed Drawing brief in every cause, per folio, Counselfee for examining and signing each pleading, Draft of interrogatories, per folio. Engrossing ditto, Counsel fee on hearing or argument, not to exceed Making up bill of costs. Serving every subpoena, or other writ or order. Travel per mile from the residence of the party making service to the place of service. Every necessary attendance on the registrar, Draft of decree, per folio. Engrossing ditto. Registrar's fees. Entering and filing every bill, Entering and filing every other pleadings 82 5 00 1 50 20 10 75 1 00 30 40 75 75 5 00 20 2 33 20 10 14 00 75 70 05 1 50 10 10 50 30 050 COSTS AND TKES. [pAET III. CiiAP. 155. Filing all otter papers, each, _ _ $0 10 Signing and sealing every writ, and certifying copies, 50 Every search, 20 Copies of all papers, per folio, 10 Drawing and signing every rule or order, 20 Every necessary attendance 'on the vice president, 1 00 Every court day, 1 00 On procuring signature of final decree, 1 50 Commissioners on examination of witnesses. For taking the examination of every witness, each commissioner per day, 5 00 PROBATE COURT. Judge's fees. Where the estate does not exceed $400 and there is no contest, in full of all fees, 4 00 Where the estate does not exceed $800 and there is no contest, in full of all fees, 6 00 Every citation, including order for the same, 40 Every order not herein specially provided for, 40 For the probate of a will or letters of administra- tion where the estate does not exceed $800, and order for the same, 3 50 Ditto, ditto, when above $800 and not exceeding $4000, and order, 4 00 Ditto, ditto, when above $4000, and order, 9 50 For warrant of appraisement and order for the same, 50 For every subpoena, attachment, execution, or other process not otherwise provided for^ including order for the same, 20 Letters ad colligendum, 2 00 Sentence or decree in ordinary cases of granting licenses to sell, mortgage or lease real estate, passing accounts of distribution, &c., 2 00 Sentence or decree for probate of a will or codicil, letters of administration, or granting license to sell, mortgage or lease real estate, passing ac- counts of distribution, &c., where there is a contest, 6 00 Transmitting appeal with statement of decision, 5 00 Taking testimony in writing where there is a con- test, per folio, 20 Warrant for appraisers to divide real estate, on petition of parties, 1 00 Dedimus potestatem to take deposition of witnesses and order therefor, 1 00 Appointing and allowing guardians to minors, and order therefor, , 3 00 TITLE XL.] COSTS AND PEES. 651 Every oath administered by him, $0 20 Chap. 155. Examining and taxing costs, " 50 Begistrar's fees. Where the estate does not exceed $400 and there is no contest, in full of all fees, 4 00 Where the estate does not exceed $800 and there is no contest, in full of all fees, 6 00 For filing every paper, 07 Probate of will and letters of administration and entry or order therefor, where the estate is under $800, 3 50 Where estate is above $800 and does not exceed $4000, and entry of order, 4 00 Where estate is above $4000, and entry of order therefor, 9 50 Letters of guardianship or ad colligendum, and entry of order, 2 00 Copy of will and probate, per folio, 10 * For preparing bond in all necessary cases, 80 Preparing citation and seal, 40 Each copy thereof, 20 Preparing necessary affidavits, each, 20 Filing every warrant and seal, 50 " every certificate of license to sell real estate, 1 00 For all copies of papers, per folio, 10 For every certificate and dedimus potestaiem, 1 00 For entry of every decree in registry book, and of every order not specially provided for, per folio, 10 Every search or inspection of documents, 20 Preparing subpoena and seal, 40 Filing each ticket for the same, - 10 Filing every caveat or appeal, 40 Preparing every execution, attachment, or other process not specially provided for, and entry of order therefor, 40 Filing every decree, 2 00 Every oath administered by him, 20 Taxing costs, 50 Proctor arid advocate's fees. Taking instructions for client to commence or de- fend proceedings in prolaate court, 2 00 Preparing every petition, 1 00 Preparing every allegation or other paper necessary to be prepared by him, including accounts, per folio, 20 Every additional copy thereof, per folio, 10 Every necessary attendance on judge, 1 50 Every hearing or argument before the judge, not less than two dollars and fifty cents nor more than ten 4ollars, at the discretion of the judge. 652 COSTS AND FEES. [PABT III. Chap. 155. Serving every notice or other paper, on each person. $0 20 Sheriff or other ministerial officer's fees. Serving citation or other process, (subpoena excepted) on each person, 50 Posting up same in three public places directed by the judge, 1 00 Serving subpoena on each person, 20 Travelling fees same as in supreme court. Appraiser's fees. For appraising the estate of a deceased person not to exceed, for each day he shall be actually employed. 2 00 magistrate's court. Justice's fees. Each summons or capias and copy thereof, 40 Affidavit for a capias and swearing, 10 Subpoena and tickets, 20 Trials and judgment in all causes, 20 Venire, 20 Returning papers on appeal to supreme court, 20 Each execution, 20 Affidavit of service of summons vrhen required and swearing, 10 Affidavit on appeal and swearing, 10 Appeal bond, 50 AH fees taken in any suit wherein the servicea and presence of two justices are required as well as for the execution therein, except for returning the papers on appeal, to be divided between the two justices acting therein as follows, two-thirds to the justice first applied to, and the remaining third to the other. Constable's fees. Serving summons and making return, 20 Serving capias and making return, 20 Bail bond, 20 Summoning a jury, 20 Summoning each additional juror where there are not sufficient by-standers, 05 Serving subpoena, each witness, 10 Serving execution, 20 Poundage on execution on sale of goods, 10 Poundage on execution where the amount ia paid in money, for each pound, 05 TITLE XL.] COSTS AND FEES. 653 All travelling to be computed from residence of Chap. 155. justice to residence of defendant, on summons, "" ' capias or execution ; and from.residence of offi- cer to ^residence of witness, on subpoena, each mile when necessarily done, $0 05 In cases of execution levied on the body, travelling lo be computed from residence of of&cer to tha-t of defendant and thence to place of con- finement, each mile, 05 Where subpcsnas are served by a constable, travel shall not be charged for serving each witness, but only so much travel as may be actually and necessarily performed by the constable in serv- ing all the subpoenas. Witness' fees. Each day in actual attendance, 50 All travelling, to to be computed from the residence of the witness to the place of trial, per mile, 08 !N"0TB. — If the witness at the time of being served with the subpoena demands his fees, he shall not be bound to attend unless fees equal to one day's attendance and his travel as above, be tendered to him at the time, or at such other reasonable time before the day of trial, as to admit of his attendance with certainty. Juror's fees. Each juror on every trial, 20 Fees of jailer or keeper of lock-up house. For every person committed to jail on civil process, 50 For every person discharged therefrom, except in- solvents and criminals, 50 BASTARDY CASES. Justice's fees. The examination of the woman in writing, 20 Warrant to apprehend the reputed father before ' birth of the child, 40 Bond to indemnify the township or district, 60 Warrant to bring the reputed father and mother before the justices, 60 All commitments, each, 20 Bond to perform order of filiation, whether on ap- peal or otherwise, 60 Warrant to apprehend the reputed father when he shall not have appeared at the time of making order of filiation, 40 Order of filiation, per folio, 10 654 costs and fees. [part iii. Chap. 155. Constable's fees. The same as in other cases before justices. registeak's of deeds fees. For the attestation of a subscribing witness, $0 20 For entering and registering every deed or convey- ance, every 90 words, 10 For entering every docket of judgment or attach- ment, 50 For registering appraisement, per folio, 10 For entering and filing a discharge of judgment or attachment, 20 For every certificate of registry written on any deed or conveyance, (not to be charged in case of judgment or attachment, or discharge thereof, or of the release of a mortgage), 20 For every ofiice copy from the books of registry de- livered out, 100 words, 10 For every certificate upon such office copy where such shall be required, 20 For every search, whether for a single deed or con- veyance, or for a single title, made on one and the same day, 20 For filing, indexing, and entering every bill of sale or copy, 20 For administering every oath thereon, 20 For entering and indexing every certificate of dis- charge, 20 For inspection of bill of sale, 20 FEES ON DISTRESS FOR RENT. Warrant to bailiff, 50 Appraisement, _/ 20 Notice and each necessary copy, 10 Appraisers, each, 25 On a sale, the same fees as to a sheriff. "Eo custody money to be allowed. CROWN LAND OFFICE FEES. For every search, 30 Copy of any grant, 50 For every copy of, or portion of, or an entire ge- neral plan of a county, such reasonable sum as the commissioner may approve. Copies of other documents, per folio, 10 Above fees not to apply to applicants for grants, or to information in connection with such applications ; and all such fees shall be paid into the office of the receiver general and accounted for in the annual account of commissioner of crown lands. title xm.] crimes and misdemeanors. 655 Chap. 156. PART lY. OF THE CRIMINAL LAW AND THE ADMINIS- TRATION" OF CRIMINAL JUSTICE. TITLE XLI. OF OFFENCES AG-AINST THE GOVERNMENT. OHAPTEE 156. OF TREASON. 1. "Whoever shall compass or imagine the death of the ^3^^^™^^®?' queen, or of her eldest son or heir ; or who shall levy war ment.^"°" against her, or adhere to her enemies, giving to them aid or comfort, and shall thereof be duly convicted, shall be de- clared and adjudged to be a traitor, and shall suiter death and forfeiture as in cases of high treason. 2. All acts of the imperial parliament directing the pro- proceedings ceedings and evidence on trials for high treason in Eng- belrin E'n|-'° land, shall have their full force and eftect and be observed ^^'^'^^ as the rule on trials for high treason in this province. CHAPTER 157. OE OFEENCES RELATING TO THE ARMY AND NAVY. 1. Whosoever shall procure or solicit any soldier, sea- Penalty for as- ,1.1. • J. > ■ Til sisting deser- man, or marine, to desert her majesty s service, or shall ters, or prpcui assist any deserter from her majesty's service in deserting, ^"s ™- court by fine and imprisonment, or either of them ; and by imprisonment either in the county jail or provincial penitentiary. 2. If any person whatever shall, on any pretext what- fonSfoadfor ever, hire, retain, engage, entice or procure, or shall attempt purpose of en- or endeavour to hire, retain, engage, entice, or procure, or ^^ ™^° ' shall solicit or use means to induce any of her majesty's subjects in this province to go, or to agree to go, from any part of this province by land or by water, to any foreign state or country, or to any place out of this province ; such person in so doing having the purpose and intention of procuring, facilitating, or bringing about the enlistment or employment, or the engagement to enlist or to be employed of any such subject of her majesty, in any rank, office, or capacity, by land or sea, in the service, or employment of, or for, or under, or in aid of any foreign prince, state, potentate, government, colony, province, or any part of 83 658 Chap. 158. CRIMES AND MISDEMEANORS. [part IV. A misdemea- nor. Punishment. ; mi- Knticing nors and ftp- prentices to leave tiic pro- vince, &c. A misdemea. npr. Punishment. Justices may issue warrants, 4o. This chapter not to prevent action lor da- mages. any province or people ; or of, or for, or under, or in aid of any person or persons exercising or assuming to exer- cise any powers of government in or over any foreign country, colony, province or people, Mrhether such subject of her majesty shall know of such purpose or intention or not, or whether such subject shall actually leave this pro- vince or not, or whether such subject shall enlist or engage in any such servicC'Or employment or not ; every person so offending shall be deemed guilty of a misdemeanor, and upon being convicted thereof upon any information or indictment, shall be punishable at the discretion of the court by fine and imprisonment, or either of them, and either by imprisonment in the county jail or provincial penitentiary. 3. If any person whatever shall, for any object what- ever, hire, retain, engage, 'procure, or entice, or shall attempt or endeavor to hire, retain, engage, procure or entice, or shall solicit, or use any means whatever to in- duce, any minor, ward, or apprentice in this province, to go, or to agree to go, from any part of this province, by land or by water, to any foreign state or country, without the knowledge, consent, or approval, or against the will, of the parent, guardian, or master, or such person as shall have the charge and authority over, or be entitled to the services of, such minor, ward, or apprentice, such person so offending shall be deemed guilty of a misdemeanor, and upon being convicted thereof, upon any information or indictment, shall be punishable, at the discretion of the court, by fine and imprisonment, or either of them, and either by imprisonment in the county jail or provincial .penitentiary. 4. Any justice of the peace may, on complaint on oath, issue his warrant against any person charged with any misdemeanor under this chapter, and cause him to-be ar- rested and brought before himself or any other justice of the peace, and held to bail with sufficient sureties to appear before the supreme court to answer such complaint. 5. This chapter shall not be construed to prevent any person aggrieved by anything done in violation of the provisions of this chapter from bringing an action for damages therefor, and in any such action a judge may, in his discretion, on suf&cient evidence on affidavit, allow a capias, although it may not appear that the defendant is about to leave the province. title xli.] crimes and misdemeanors. 659 Chap. 159. OHAPTEE 159, OF OFFENCES AGAINST RELIGION. 1. "Whosoever shall maliciously disturb an;^ congrega- fu^fngpersons tion of persons assembled for religious worship, or shall assembled for T . '■ , _a? • i- i 1 public worship, molest any preacher or person omeiatrng at such congre- gation, or any persons there assembled, upon conviction before a justice of the peace, shall forfeit not less than five nor more than forty dollars, and in default of payment shall be committed to jail for a term not less than twenty-four hours nor more than ten days. 2. Any person who shall be convicted before a justice Son'of S' of the peace of shooting, gambling or sporting, of frequent- Lord's day. ing tippling houses, or of servile labor, works of necessity and mercy excepted, on the Lord's day, shall for every offencq, forfeit not less than one nor more than eight dol- lars, and in default of payment shall be committed to jail for a term not less than twelve hours nor more than four days. 3. If any person shall, by riotous or disorderly conduct ^oas'Jiidother or language, or by dischararina; firearms, or by fire works, meetings or , ° . t^ ' ./ ■ J. 1 T • 1 T congregations. or by cries or other noises, wantonly or maliciously diS' turb the peace and quiet of any assemblage of persons law- ,fully convened for any religious, moral, social, or benevo- lent purpose, he shall for every oflfence forfeit a sum not less than two dollars nor more than eight dollars. 4. If any person shall wilfully or wantonly untie, re- ?;i°in™fo°rsi.?' move, or let loose, disfigure or injure any horse, or remove ac, in vicinity or meddle with, injure or destroy any vehicle, or cut, in- "nls"" '"^^ jui'e or destroy any harness connected with such horse or vehicle, while the same are in the vicinity of any place where such meeting may be in the act of being held, he shall for every oftence forfeit a sum not less than five dol- lars nor more than forty dollars. 5. Any person oft'ending against the provisions of the fs"^^e„''"oi" third and fourth sections of this chapter, may be arrested offenders. on view by any peace officer present at such meeting, or by any other person thereto verbally authorized by any jus- tice of the peace present thereat ; and such ofi:ender shall thereupon be committed to the county jail until he shall find security to the satisfaction of a justice for his good behaviour, and to pay any fine or penalty that may be im- posed upon him on any prosecution for such offence. Fine fordruni; enness. 660 CRIMES AND MISDEMEANORS. [PART IV. Chap. KiO. CHAPTER 160. OF OFFENCES AGAINST PUBLIC MORALS. 1. Any person who shall be convicted, of drunkenness either on view or upon oath before a justice of the peace, shall, for every offence, forfeit not less than one nor more than four dollars, and in default of payment shall be com- mitted to jail for a term not less than twelve hours nor more than four days. 2. Any person who shall be convicted of incest shall be guilty of a misdemeanor, and shall be imprisoned for a term not exceeding two years. 3. Any person who shall be convicted of keeping a common gambling house, bawdy house or other disorderly house, room or place, shall be imprisoned for a term not exceeding two years. 4. Any person who shall appear or act as master or mistress, or as having the care or management of any gambling house, bawdy house or other disorderly house, shall be deemed to be the keeper thereof, and shall be prosecuted and punished as such, notwithstanding he or she shall not in fact be the real owner or keeper thereof. 5. Any person who shall keep a common gambling house, or disorderly house, shop, room, or place, may be summarily tried and convicted before two justices of the peace, or, if in the city of Halifax, before the police court ; and, on conviction, shall be punished by a fine, not to exceed twenty dollars, or by imprisonment in jail or bride- well, with or without hard labour, for a term not exceed- ing one month, or be both fined and imprisoned as the said justices or police court may direct. 6. Any justice of the peace, or, if in the city of Hali- fax, the mayor or any alderman, may, at any time of the night or day, enter any house, shop, room, or place, sus- pected of being a gambling or bawdy house, shop, room, or place, and it shall be their duty, upon reasonable suspi- cion, or on evidence tendered them under oath, so to do. 7. Any person profanely cursing or swearing in the hearing of a justice of the peace, or who shall be convicted thereof, shall forfeit forty cents for the first offence, and for a second offence double, and for a third offence treble that sum, and in default of payment shall be committed to jail for a term not less than two nor more than twelve hours. „r-. i--..™ „ ^- Whoever shall undertake or set up, or shall by writ- ting'inrotterre"s ing or printing, publish the undertaking: or setting' ud of or raffles. ^^ Zi. jmj? -i .t.oJtJ anynottery or raffle for money or goods, with intent to have such lottery or raffle drawn or thrown, or to induce Punishmentfor incest. Punishmentfor keeping a gam- bling, bawdy, or disorderly house. "Who may be deemed keeper of such house. Trial and pun- ishment of offenders. Any justice, &c. may enter gan*- biing houses, &c. Fine for pro- fane s\yearing. Fine for getting np or'participa- _ 4 TITLE XLI.J CBIMES AND MISDEMEANORS. 661 persons to purchase tickets or to give money or other valu- Chap. 161. ables for any such lottery or raffle, or shall play, throw or draw at such lottery or raffle, or shall purchase any lot or ticket for any such lottery, or shall take part in any such raffle, shall forfeit a sum not exceeding forty dollars, and in default of payment shall be committed to jail for a period not exceeding thirty days. CHAPTER 161. OF OFFENCES AGAINST THE LAW OF MARRIAGE. 1. "Whosoever being married, shall marry any other Punishmentfor person during the life of the former husband or wife, '^'^^"'^' *'^' whether the second marriage shall have taken place in the province or elsewhere, shall be guilty of felony, and shall be imprisoned for a term not exceeding two years, and fined at the discretion of the court. 2. Provided that nothing in the last preceding section fi.om\he'if''era- shall extend to any second marriage contracted out of this tion of previous province by any other than a subject of her majesty, or to any person marrying Or second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former mar- riage shall have been declared void by the sentence of any court of competent jurisdiction. 3. "Whosoever not being thereto duly authorized shall Penalty and presume to solemnize or celebrate marriage, or shall offici- Si'egaii^offlcia- ate or assist in solemnizing or celebrating any marriage, {enfnifatiSn o°f" shall, for every such offence, forfeit, to the use of her ma- matrimony. jesty, a sum not exceeding four hundred dollars, nor less than one hundred dollars, and sufier twelve months impri- sonment notwithstanding such marriage shall be invalid by law. 662 crimes anb misdemeanors? [part iv- Chap. 162. ~ ~ CHAPTER 162. OF OFFENCES AGAINST THE PUBLIC PEACE. fw"ive''"/more 1- If aiij pei'sons -to the number of twelve or more, persons remai- being Unlawfully assembled together to the distarbance of ning riotously ^ , ,. •' ti- ° ■ -, i ,^ ^ • rr- assembled after the public peace, aud being required by the sherin, or a procamation. j^g|.•gg ^^f ^j^g peace of the county, or of any city where such assembly shall be, by proclamation, to be made in the form hereinafter directed, to disperse themselves, shall to the number of twelve or more, unlawfully, riotously, and tumultuously continue together for the space of one hour after such proclamation made, such offenders shall be imprisoned for any term not exceeding four years. rnXn.*^^'""''" 2. The order and form of such proclamation shall be as follows, that is to saj-, the person authorized to make such proclamation shall, among the rioters, or as near as he can safely come, with a loud voice command silence, and make proclamation in the words following, or to the like eftect : — " Our sovereign lady the queen charges and commands all persons being here assembled immediately to disperse themselves, and peacefully depart to their habitations or to their lawful business, or they will incur the penalty of the law against unlawful assemblies. God save the queen." Punishment for 3. Whosocver shall forcibly oppose, or in any manner ty making pro- obstruct, any pcrson lawfully making or endeavoring to ciamation. make sucli proclamation, shall be imprisoned for a term not exceeding two years, re^mainml^as"' 4. If any persous to the number of twelve or more, p^kmation^is being unlawfully assembled together, to whom proclama- obstruoted. ^iou should or ouglit to have been made if the same had not been obstructed, shall, knowing of such obstruction, continue together and not disperse themselves within one hour after such obstruction made, such offenders shall be imprisoned for a term not exceeding two years. Punisiiment 5. If three or more persons shall assemble, or having mo?eVJsons°'^ assembled shall continue together, with intent without s™w6"o? COT- lawful authority to execute any common purpose with bi°ed^ ''^^^'"' force and violence, or in so violent and tumultuous a man- ner, or under such circumstances as are calculated to create terror and alarm amongst her majesty's subjects, such per- sons shall be imprisoned for a term not exceeding two years, punishrnenifor 6. If any pcrsons Unlawfully assembled together to the se"n?biagel'dam- disturbance of the public peace, shall damage or destroy Sf mlofcy^^ any church, chapel, or meeting house for the exercise of religious worship, or any building or erection, or any machinery, whether fixed or moveable, prepared for or employed in any manufacture, such offenders shall be im- prisoned for any term not exceeding two years. TITLE XLI.] CRIMES AND MISDBMEANOKS. 663 7. If two or more persons shall fight together in a pub- (In ap. 163. lie place, in such a manner and under such circumstances punishment for as are calculated to create terror and alarm amongst her p"''''° fisi^'i'^s- majesty's subjects, such persons shall be committed to jail for a term not exceeding three months. 8. If two or more persons shall (^enly carry dangerous ^"^'j/^jn'"^""'"^ and unusual weapons in any public place, in such a man- g'erous woapoiis ner and under such circumstances as are calculated to create terror and alarm amongst her majesty's subjects, such persons shall be committed to jail for a term not ex- ceeding twelve months. 9. If any person shall, by discharging fire-arms, or by Einto"' of dis- «/i /J oo J J ordsrly con- riotous or disorderly conduct in any street or highway, duct in kU'ooIs wantonly or maliciously disturb the peace and quiet of the °^ is^ways. inmates of any dwelling house near such street or high- way, he shall, for every ofience, forfeit a sum not less than two dollars nor more than eight dollars. OHAPTEE 163. OF OFFENCES AOAINST THE ADMINISTRATION OF JUSTICE. 1. Whosoever shall assault a peace or revenue ofiicer, Punishmentfor or constable, in the execution of his duty, either in civil pfa™ o?feve- or criminal cases, or any person acting in aid of such offi- ""^^°'^°"- cer, shall be committed to jail for a term not exceeding two years, and fined at the discretion of the court. 2. Whosoever shall assault any person with intent to Punishment for resist the lawful apprehension or detainer of the party so ttie'app'r°eh1n-.^' assaulting, or of any other person for any offence for whiich son^soVi^saui"' he may be liable to be apprehended or detained, shall be '"£■ committed to jail for a term not exceeding two years, and fined at the discretiou .of the court. 3. Whosoever shall maliciously shoot at any person, or Pusishmeiitfor shall attempt to discharge any kind of loaded arms at any eta°bbi'n|, ic°to person, or shall maliciously stab, cut or wound any person, prlhensim^ofa with intent to resist the lawful apprehension or detainer of party accused. a party accused of any oflE"ence for which he may be liable to be apprehended, he shall be imprisoned for a term not exceeding seven years. 4. Whosoever shall be convicted of perjury or subor- Punishmentfor nation of perjury, shall be imprisoned for a term not ex- ?orili7ation"of ceeding seven years. perjury. 5. W^hosoever shall be convicted of any rescue or Punishmentfor breach of prison, shall be imprisoned for a term not ex- breach of pri- ceeding two years* °°°" 664 CRIMES AND MISDEMEANORS. [PART IV. Chap. 164. 6 . Whosoever having the custody of any public records, Punishment for shall Certify an order as true, knowing the same to be false, tifioates.^&orof ^^ make any false copy or certificate of any indictment or public records, couviction, or shall utter any such copy or certificate with a false or forged signature thereto, or make any false cer- tificate of registry, lAowing the same to be false or forged, shall be imprisoned for a term not exceeding three years. steaJin^oH"""^ T. Whosoevcr shall steal, or shall for any fradulent mentf coSSect- purposB take from its place of deposit for the time being, ed with the or from any person having; the lawful custody thereof, or administration] in t.v-^, ,,. *^ , . ^ -. *'t ' of justice. snail maliciously obliterate, injure or destroy, any document connected with the administration of justice, shall he im- prisoned for a term not exceeding two years and fined at the discretion of the court. cor^upt^Tat"^ ^- Whosoever shall corruptly take any money or other ing rewards for reward Under pretence of helping any person to any chat- sons ti) stolen tel, Valuable security or moveable thing, which shall have trifle!' ^^°""" been stolen, taken, detained or converted, shall, unless the jDerson so taking such money or reward shall cause the offender to be apprehended and brought to trial for the same, be guilty of felony, and shall be imprisoned for a term not exceeding seven years. CHAPTER 164. OF OFFENCES AGAINST THE PERSON. murder, Ac, 1. Evcry person convicted of murder, or of being an bemgacoesso- acggggQpy -before the fact to murder, shall suffer death as a felon ; and every accessory after the fact to murder shall be imprisoned for a term not exceeding fourteen years, and fined at the discretion of the court. bideemld'and 2. Every offcnce which before, the year one thousand murder.'^ "' eight hundred and forty-one would have amounted to petit treason, shall be deemed to be murder only ; and all per- sons guilty in respect thereof, whether as principals or ac- cessories, shall be punished as principals and accessories to murder. Sin'sUughte?" 3. Any person convicted of manslaughter shall be com- mitted to jail or imprisoned in the penitentiary, as the court shall direct, for a term not exceeding fourteen years, or shall be fined at the discretion of the court. fortunl OTi"?'^" 4. Provided that no punishment or forfeiture shall be hot^unlshawe! incurred by any person who shall kill another by misfor- tune, or in his own defence^ or iti any other manner with- out felony. TITLE XLl.] CRIMES AND MISDEMEANORS. ees 5. "Whosoever shall administer to, or cause to be taken Chap. 164. by any person, any poison or other destructive thing, or Punishmentfor shall cause bodily harm to any person with intent to com- poi^on^s- mit murder, shall be guilty of felony, and shall be impri- soned for a term not exceeding foiirteen years. Punishment for 6. Whosoever shall by any means, other than the actu- attera]jtTng to ally administering or causing to be taken poison or other StrenTis^^thm destructive thing, attempt to commit murder, shall, althougb l^^^^"] n"" hfim no bodily harm be caused, be guilty of felony, and be im- ensues. prisoned for a term not exceeding seven years. Punishmentfor 7. Whosoever shall maliciously cut, stab, or wound, or causing griey shall maliciously maim, disfigure or disable any person, or harm? ' ^ shall maliciously cause to any person any other grievous bodily harm, shall be guilty of felony, and be imprisoned for a term not exceeding fourteen years. p • h tf f 8. Whosoever shall maliciously attempt to cause griev- attempting to ous bodily harm to any person, shall, whether any bodily bodiiyTarm"^ harm be caused to such person or not, be imprisoned for a term not exceeding four years. Punishmentfor 9. Whosoever shall unlawfully set fire to, cast away, or settiagfiretoor in any wise destroy any ship or vessel either with intent to ^IsseTwith^in- murder any person or whereby the life of any person shall ^nt to murder, be put in'danger, shall be guilty of felony, and be impri- soned for the term of his natural life or for any term not less than seven years. 10. Whosoever shall maliciously impede any person be- fmpediU^^"e3-" ing on board of, or having quitted any ship or vessel which ^rfci'.""" " shall be in distress or wrecked, in his endeavor to save his life, shall be guilty of felony, and shall be imprisoned for a term not exceeding fourteen years. p • h 11. Every woman being with child, who, with intent to at"empthrg to"'^ procure her own miscarriage, shall maliciously administer tio°n."''® ^'^"' to herself any poison or other noxious thing, or use any in- strument or oth^r means whatever, and every person who, with intent to procure the miscarriage of any woman, shall maliciously administer to, or cause to be taken by her, any poison or other noxious thing, or shall use any instrument' or other means whatsoever, sball be guilty of felony, and shall be imprisoned for a term not exceeding fourteen years. 12. Where a woman shall have been delivered of a endelvOTing'to child, any person who shall by any secret disposition of the ^"Jthofa'diiid. dead body of suck child, whether such child died before, at, or after its birth, endeavor to conceal the birth of such child, shall be imprisoned for a term not exceeding two years. . j^j^j^^^f^j 13. Whosoever shall unlawfully and carnally know any ra™ ™°° woman agairist her will and by force, or whilst she is insen- sible, shall bfe guilty of rape, and shall be imprisoned for the term of his natural life, or for any term not less than seven years. 84 666 CRIMES AND MISDEMEANORS. [PAET IV. Chap. 165. 14. Whosoever shall unlawfully and carnally know and Punishment for abuse any girl under the age of ten years, shall be guilty maie'Mder''ten ^f felouy, and be imprisoned for the term of his natural years. Jife. abuifn''gT?e"°' IS- Whosoever shall unlawfully and carnally know and Sn'and^twl^e ^^^'^^e any girl being above the age of ten years, and under years. the age of twelve years, shall be imprisoned for a term not exceeding seven years. bSggfrr""'" 16. Whosoever shall commit the crime of buggery, either with mankind or with any animal, shall be guilty of felony, and be imprisoned for the term of his natural life, or for any term not less than seven years. Sigl,\?ha'r" 17. Any the least degree of penetration, though there tute! °°''^"' be no emission of seed, shall be sufficient to constitute car- nal knowledge as regards the crimes mentioned in sections thirteen, fourteen, fifteen and sixteen of this chapter. ™™no"" 18. Whosoever shall unlawfully take, or cause to be fSeen"'^^'^ taken, any unmarried girl under the age of sixteen years, out of the possession or against the will of her father or mother, or any other person having the lawful charge of her, shall suffer such punishment by fine or imprisonment, or both, as the court shall award. r^sauHwfth in- 19- Whosoever shall assault any person with4ntent to a^e'o'ny?"™"" commit a felony, shall be imprisoned for a term not ex- ceeding two years, and fined at the discretion of the court. L"auu™na''" ^^- Whosocver on trial for any felony whatever, and trial for a wMch shall iucludc an assault, shall be convicted of assault, ^ ™^' shall be committed to jail or imprisoned in the peniten- tiary as the court shall direct, for a term not exceeding five years, and shall be fined at the discretion of the court. as'Suit™&e"i'n 21. Whosoevcr in pursuance of any combination or combiSons Conspiracy to raise the rate of wages, or of any unlawful u>^ raise wages, Combination or conspiracy resptecting any trade, business Acts of 1864, or manufacture, or respecting any person concerned or ciiapter 9. employed thereon, shall unlawfully assault any person, or who in pursuance of any such combination or conspiracy, shall use any violence or threat of violence to any person with intent to deter or hinder him from working or being employed in or about any such trade, business or manufac- ture, shall be guilty of a misdemeanor ; and being con- victed thereof, shall be liable at the discretion of the court to be imprisoned for any term not exceeding five years. title xli.j crimes and misdemeanors. 667 Chap. 165. CHAPTER 165. OF COMBINATIONS OF WORKMEN. [passed on the lOlH DAY OP MAT, 4. v., 1884.] 1. If any person shall by violence to the person or Penalty for in- property, or by threats or intimidation, or by molesting, empi™lrrand or in any way obstructing another, force, or endeavor to regard' toSl*' force, any journeyman, manufacturer, miner, workman, or other person, hired or employed in any manufacture, mining operations, trade, or business, to depart from his hiring, employment or work, or to return his work before the same shall be finished, or prevent, or endeavor to prevent, any journeyman, manufacturer, miner, workman, or other person, not being hired or employed, from hiring himself to, or from accepting work or employment from any person or persons ; or if any person shall use or employ violence to the person or property of another, or threats or intimidation, or shall, molest, or in any way obstruct another for the purpose of forcing or inducing such person to belong to any club or association, or to contribute to any common fund, or to pay any fine or penalty, or on account of his not belonging to any par- ticular club or association, or not having contributed or having refused to contribute to any common fund, or to pay any fine or penalty, or on account of his not having complied, or of his refusing to comply, with any rules, orders, resolutions, or regulations, made to obtain an advance, or to reduce the rate of wages, or to lessen or alter the hours of working, or to decrease or alter the quantity of work, or to regulate the mode of carrying on any manufacture, mining operations, trade, or business, or the management thereof; or if any person shall, by violence, to the person or property of another, or by threats or intimidation, or by molesting, or in any way obstructing another, force, or endeavor to force, any manufacturer or person carrying on any trade, mining operations, or business, to make any alteration in his mode of regulating, managing, conducting, or carrying on such manufacture, mining operations, trade, or business, or to limit the number of his apprentices, or the number or description of his journeymen, workmen, miners, or servants ; every person so offending, or aiding, abetting or assisting therein, being convicted thereof, in manner hereinafter mentioned, shall be imprisoned only, or shall and may be imprisoned and kept to hard labor, in the provincial penitentiary, for any time not exceeding twelve calendar months. wages, work, 668 CRIMES AND MISDEMEANORS, [part IV. Persons ex- empted from operations of ohftpter. Persons ex- empted. Chap. 165. 2. This chapter shall not extend to subject any persons to punishment who shall meet together for the sole pur- pose of consulting upon and determining the rate of wages or prices which the persons present at such meeting, or any of them, shall require or demand for his or their work, or the hours or time for which he or they shall work in any manufacture, mining operations, trade or business, or who shall enter into any agreement, verbal or written, among themselves, for the purpose of fixing the rate of wages or prices which the parties entering into such agree- ment, or any of them, shall require or demand for his or their work, or the hours or time for which he or they will work in any manufacture, mining operations, trade or business ; and that persons so meeting for the purposes aforesaid, or entering into any such agreement, as afore- said, shall not be liable to any proscution or penalty for so doing, any law or statute to the contrary notwithstanding. 3. This chapter shall not extend to subject any persons to punishment who shall meet together for the sole pui-pose of consulting upon and determining the rate of wages or prices which the persons present at such meeting, or any of them, shall pay to his or their journeymen, miners, workmen, or servants, for their work, or the hours or time of working in any manufacture, mining operations, trade or business, or who shall enter into any agreement, verbal or written, among themselves, for the purpose of fixing the rate of wages or prices, which the parties entering into such agreement, or any of them, shall pay to his or their journeymen, miners, workmen, or servants, for their work, or the hours or time of working in any manufacture, mining operations, trade, or business ; and that persons so meeting for the purposes aforesaid, or entering into any such agreement as aforesaid, shall not be liable to any prosecution or penalty for so doing, any law or statute to the contrary notwithstanding. 4. All and every person or persons who shall, or may, offend against this chapter shall, and may, equally with all other persons be called upon, and compelled to give his or her testimony and evidence as a witness or witnesses, on behalf of her majesty, or of the prosecutor or informer upon any information to be made or exhibited under this chapter, against any other person or persons, not being such witness or witnesses as aforesaid, and that in all such cases, every person, having given his or her testimony or evidence, as aforesaid, shall be and is hereby indemnified of, from and against any information to be laid or prose- cution to be commenced against him or her for having offended in the matter wherein, or relative to which, he, she or they shall have given testimony or evidence, as aforesaid. Offenders to eiTe evidence TITLE XLI.] CRIMES AND MISDEMEANORS. 669 5. On complaint and information on oath before anyone Chap. 165. or more justices of the peace, of any offence having been proceedings committed against this chapter, within his or their respec- of the" pVaoS'°^ tive jurisdictions, and within six calendar months before such complaint or information shall be made, such justice or justices are hereby authorized and required to summon the person or persons charged with being an offender or offenders against this act, to appear before any two such justices at a. certain time or place to be specified ; and if any person or persons so summoned shall not appear ac- cording to snch summons, then such justices, proof on oath having been first made before them of the due service of such summons upon such person or persons, by delivering the same to him or them personally, or leaving the same at his or their usual place of abode, provided the same shall be so left twenty-four hours at the least before the time which shall be appointed to attend the said justices upon such summons, shall make and issue their warrant or warrants for apprehending the person or persons so summoned and not appearing, as aforesaid, and bringing him or them before such justices ; or it shall be lawful for such justices, if they shall think fit, without issuing any previous summons, and instead of issuing the same upon such complaint and information as aforesaid, to make and issue their warrant or warrants for apprehending the per- son or persons by such information charged to have of- fended against this chapter, and bringing him or them before such justices ; and upon the person or persons com- plained against appearing upon such summons, or being brought by virtue of such warrant or warrants before such justices, or upon proof on oath of such person or persons absconding so that such warrant or .warrants cannot be executed, then such justices shall, and they are hereby authorized and required forthwith, to make inquiry touch- ing the matters complained of, and to examine into the same by the oath or oaths of any one or more credible person or persons as shall be requisite, and to hear and determine the matter of every such complaint ; and upon confession by the party or proof by one or more credible witness or witnesses upon oath, to convict or acquit the party or parties against whom complaint shall have been made as aforesaid. 6. It shall be lawful for the justices of the peace before witnesses; how whom any such complaint and information shall be made peSty for Aon- as aforesaid, and they are hereby authorized and required, '=°'"p''^°'^^- at the request in writing of any of the parties, to issue his or their summons to any witness or witnesses, to appear and give evidence before such justices at the time and place appointed for hearing and determining such complaint, and which time a;nd place shall be specified in such summons ; and if any person or persons so summoned to appear as a witness or witnesses as aforesaid, shall not 670 CEIMES AND MISDEMEANOES. [PART IV. Chap. 165. appear before such justices at the time and place specified in such summons, or offer some reasonable excuse for the default, or, appearing according to such summons, shall not submit to be examined as a witness or witnesses, and give his or their evidence before such justices touch- ing the matter of such complaint, then and in every such case it shall be lawful for such justices, and they are hereby authorized — proof on oath, in the case of any person not appearing, according to such summons, having been first made betore such justice of the peace, of the due service of such summons on every such person, by delivering the same to him or her, or by leaving the same twenty-four hours before the time appointed for such person to appear before such justices, at the usual place of abode of such person — by warrant under the hands of such justices, to commit such person or persons so making default in appearing, or appearing and refusing to give evidence, to some prison within the jurisdiction of such justices, there to remain without bail for three calender months, or until such person or person shall submit to be examined, and give evidence before such justices, as aforesaid. ne™d sche'duie '^- "^^^ justiccs beforc whom any person or persons shall to be used. be couvictcd of any offence against this chapter, or by whom any person shall be committed to prison for not appearing as a witness, or not submitting to be examined, shall cause all such convictions, and the warrants or orders for such commitments, to be drawn up in the form, or to the effect, set forth in the schedule to this chapter annexed. ce''e'dkigsu"der ^- ^^ ^^J person couvictcd of any offence or offences, *=■ punishable by this chapter, shall think himself or herself aggrieved by the judgment of such justices, before whom he shall have been convicted, such person shall have liberty to appeal from every such conviction to the next sittings of the supreme court, which shall be held for the county, wherein such offence was committed ; and that the execu- tion of every judgment so appealed from shall be sus- pended, in case the person so convicted shall immediately enter into recognizances before such justices — which they are hereby authorized and required to take — himself with two sufficient sureties, in the penal sum of two hundred dollars of lawful money of Nova Scotia, upon condition, to prosecute such appeal with effect, and to be forthcoming to abide the judgment and determination of the said next sittings of the supreme court, and to pay such costs as the said court shall award on such occasion ; and the judge or judges in the said next sittings of the supreme court, are hereby authorized and required to hear and determine the matter of the said appeal, and to award such costs as to them shall appear just and reasonable, to be paid by either party, which decision shall be final ; and if, upon hearing the said appeal, the judgment of the TITIE XLI.] CRIMES AND MISDEMBANOIiS. 671 justices before whom the appellant shall have been con- Chap. 165. victed, shall be aiSrmed, such appellant shall immediately be committed by the said court to the common gaol or provincial penitentiary, vi^ithout bail, according to such conviction, for the space of time ther'ein mentioned. SCHEDULE. Form of conviction and commitment. Be it remembered, that on the day of , in the year of our Lord, one thousand eight hundred and -, A. B. is convicted before us, [naming the justices,'] two of her majesty's justices of the peace for the county of — , of having, [stating the offence,'] contrary to chapter one hun- dred and sixty-five of the revised statutes, third series, " of combinations of workmen," and we, the said justices, do hereby order and adjudge the said A. B. for the said ofience, to be committed to, and confined in the [common jail, for the said county of , or provincial penitentiary at Halifax, there to be kept to hard labor] for the space of . Given under our hands the day and year above written. Form of a commitment of a person summoned as a witness. Whereas, C. D. hath been duly summoned to appear and give evidence before us, [naming the justices who issued the summons,] two of her majesty's justices of the peace for the county of , on this day of , at , being the time and place appointed for hearing and deter- mining the complaint made by [the informer or prosecutor] before us, against A. B., of having [stating the offence as laid in the information] contrary to chapter one hundred and sixty-five of the revised statutes, third series, " of combi- nations of workmen ;'* and whereas, the said C. D. hath not appeared before us at the time and place aforesaid, speci- fied for that purpose, or ofl'ered any reasonable excuse for his [or her] default, [or, and whereas, the said C. D. having appeared before us at the time and place aforesaid, speci- fied for that purpose, hath not submitted to be examined as a witness and give his [or her] evidence before us, touch- ing the matter of the said complaint, but hath refused so to do,] therefore, we the said justices, do hereby, in pur- suance of the said statute^ commit the said C. Di to the [describing the prison,] there to remain without bail for his [or her] contempt, aforesaid, for calender months, or until he [or she] shall submit himself [or herself] to be ex- amined, and give his [or he-^] evidence before us, touching the matter of the said complaint, or shall otherwise be discharged by due course of law ; and you, [the constable, or other peace officer or officers to whom the warrant is directed] 672 CRIMES AND MISDEMEANORS. [PART IV. Chap. 166. are hereby authorized and required to take into your cus- tody the body ot the said C. D._, and him [or her] safely to convey to the said prison, and him [or her'] there to deliver to the jailer or keeper thereof, who is hereby authorized and required to receive into his custody the body of the said C. D., and him [or her] safely to detain and keep pur- suant to this commitment. Given under our hands, this day of , in the year of our Lord, one thousand . [This commitment to he directed to the proper peace officer, and the jailer or keeper of the prison.] CHAPTER 166. OT OFFENCES AGAINST THE HABITATION. Punish'Tientfor J. "WTiosocvcr shall Commit burglary shall be guilty of urg aiy. felony, and shall be imprisoned for a term not exceeding fourteen years. aho*uiefn°the^ 2. If any pcrsou shall enter the dwelling house of enteredwithm- ^'Hother with intent, to commit felony, or being in such tent to commit dwelling housc shall commit a felony, and shall in either be bS'gtary!" cagc break out of the house in the night time, such person shall be deemed guilty of burglary. Same subject. 3_ Provided always, that no building, although within the same curtilage with the dwelling house, and occupied therewith, shall be deemed to be part of such dwelling house for the purpose of burglary, unless there shall be a - communication between such building and dwelling house, either immediately or by means of a covered and enclosed passage leading from one to the other. Punishment for 4. "Whosocvcr shall burglariously break and enter into entfringr^' any dwelling housc, or any inner part thereof, and shall sa°uitfng°a per- assault wlth intent to murder any person being therein, or tocommiimm- shall causc any bodily harm, or do any personal violence der. to such pcrson, shall be guilty of felony, and be imprisoned for the term of his natural life, or for any term not less than seven years. Pimishmentfor 5. If any pcrsou shall in the night time break and buifdiSfs by ^'^ enter any building, being within the curtilage of a dwell- ''u^os^of^" ^^S liouse and occupied therewith, but not beinff part burglary. thereof, according to the provision in the third section of this chapter, or any public office, public building, 0/ other building, not being a 'dwelling house for the purpose of burglary, with intent to commit a felony, every such ofiender shall be guilty of felony, and shall be imprisoned for a term not exceeding seven years. TITLE XLI.J CRIMES AND MISBEMEANORS. 673 6. So far as the same is esseutial to the offence of bur- Chap. 166. glary, the night shall be considered and is hereby declared Night defined to commence at nine o'clock of the evening of each day, queiti'ms^ff and to conclude at six o'clock in the morning of the next burglary. succeeding day. 7. "Whosoever shall in the day timeunlawfuUybreakand Penaityfor un- enter any dwelling house, or building vrithin the curtilage ingMaeiue?-' of a dwelling house, or any public office or other public h^fus^ej^offlce"^ building, or any building used for carrying on any business, ^^^^^fen^'to or any stable, barn, or store house, or any church, chapel, commit a or meeting house for the exercise of any mode or form of ^ °^^' religious worship whatever, with intent to commit a felony shall be committed to jail or imprisoned in the peniten- tiary as the court may direct, for a term not exceeding five years, and shall be fined at the discretion of the court. 8. "Whosoever shall be indicted for any burglary, where wher^thrbur- the breaking and entering shall be proved at the trial to fJ^J^t^citaliy have been made in the day time, and no breaking out shall F°™?' but the appear to have been made in the night time, or where it is'^provel'. "'' shall be left doubtful whether such breaking and entering or breaking out, took place in the day or night time, shall be acquitted of the felony, but may be convicted of the offence specified in section seven of this chapter. 9. It shall not be available, by way of defence, to a Yhmgillylim- person charged with the offence specified in section seven mittedshaiinot of this chapter, that the breaking and entering were such a charge V as to amount in law to burglary — provided that the w^Mmlnt^niy offender shall not be afterwards prosecuted for burglary der m^ayVe*^*"^' upon the same facts ; but it shall be open to the court ^^f^^l^f^^*^^ before whom the trial for such offence shall take place, ° "'^^ ^'^' upon the application of the officer conducting the prosecu- tion, to allow an acquittal for the misdemeanor, on the ground that such offence, as proved, amounts to burglary; and if an acquittal takes place on such ground, and be so returned by the jury in delivering their verdict, the same shall be recorded together with their verdict, and such acquittal shall not then avail as a bar or defence upon any indictment for such burglary. 10. "Whosoever shall maliciously set fire to any dwell- ma°^?iius1y'^°'' ing house, any person being therein, shall be guilty of fij'ini a dweii- felony, and. be imprisoned for the term of his natural life, person being or for any term not less than ten years. therein. 11. "Whosoever shall maliciously, by the explosion of Punishment foi: gunpowder or other explosive substance, destroy or damage dvv™umg^hous» the whole or any part of a dwelling house, any person persorbelng ^ being therein, shall be guilty of felony, and shall be ti^^r^'"- imprisoned for a term not exceeding fourteen years. 85 674 CaiMES AND MISDEMEANORS. [PART IV. Cl]AP.107. OHAPTEE 167. OF FRAUDULENT APPROPRIATIONS. Sbbing^the"" 1- Whosoever shall roh any person shall he guilty of person. felony, and shall be imprisoned for a term not exceeding fourteen j'ears. an assaSrwUh ^- Whosoevcr shall assault any person with intent to intent' to rob. rob, shall he guilty of felony, and shall be imprisoned for a terra not exceeding three years, fowji?"™"""^ 3. Whosoever shall rob any person, and at the time of, person and or immediately before, or immediately after such robbery, ons^'bo^dify '^^" shall cause any grievous bodily harm to any person, shall harm. -^^ guilty of fclony, and be imprisoned for the term of his natural life, or for any term not less than seven years. ^naia™rby°' ^- Whosoevcr shall, being armed with any offensive one or more weapou Or instrument, or shall, together with one or more per.oons and ^ ' ' O -.n ■ , , , l, with intent to persou Or pcrsous, assault any person with intent to rob, bodfiyliTrm"^ and at the time of, or immediately before, or immediately after such assault, shall cause an 3^ bodily harm, or do any violence to the person of another, shall be guilty of felony, and shall be imprisoned for a term not exceeding fourteen years. demandingpro"^ ^- Whosocver shall with menaces, or by force, demand rae'nacl"or ^"^^ property of any person, with intent to steal the same, forte, with in- shall bc guilty of fclony, End shall be imprisoned- for a tent to steal. , j.j-j,i term not exceeding three years. steaiin™from°'^ 6. Whosocver shall plunder or steal any part of a ship a we^df^™^' °^' '^sssel wrecked or cast on shore, or any goods or articles of any kind belonging to or on board of such ship or ves- sel, shall be guilty of felony, and shall be imprisoned for a term not exceeding fourteen years. ^™jj™™"'°'^ 7. Whosoever shall accuse or threaten to accuse any threatemng to pcrsou of the Crime of buggery, committed either with person' with an mankind or with any animal, or any assault with intent to offe™e,^and cooimit the Said abominable crime, or of any attempt to ll^r^S'nprtv"'''' commit the same, or of using any solicitation or threat to ing property. ' . o J any person whereby to induce such person to commit or permit the said abominable crime, with intent to extort, and shall thereby extort, from such person any property, shall be guilty of felony, and shall be imprisoned for a term not exceeding fourteen years. ?S;^„tJ!t.^?/' 8- "Whosoever shall commit any theft, where the means tedbyaecusing by wQich posscssiou IS obtained of the tbina: stolen are or threatening •,i „j.i • ,i , • , ~.ii to accuse a per- either the accusing or threatening to accuse, or the know- |on of felony, iogiy sending, delivering or uttering of any letter or writ- ing, accusing or threatening to accuse any person of treason or felony, or of any assault with intent to commit, or of any attempt to commit a rape, shall be guilty of felony, TITLE XLI.] CRIMES AND MISDEMEANORS. 675 and shall be imprisoned for a terra not exceeding seven Chap. 167. years. 9. "Whosoever shall, by any of the means specified in Punishmentfor section eight of this chapter, attempt to commit a theft, or commit a theft shall knowingly send, deliver or utter any letter or writing, thrcatoiuf ict- demanding of any person with menaces, and without any ^''^^•^'^^ reasonable or probable cause, any thing being the subject of theft, shall be guilty of felony, and shall be imprisoned for a term not exceeding seven years. 10. Every species of parting witb, placing or disposing hlid sendin^^ of any such letter or writing as is mentioned in the two threatenmglet- last preceding sections, to the end that the same' may be carried to or otherwise reach or come into the possession of the persoa for whom it is intended, shall be deemed to be a sending of such letter within the meaning of those sections. 11. "Whosoever shall be convicted of larceny, shall be ^.^^^'^^y"^"'^" imprisoned for a term not exceeding seven years. 12. "Whosoever shall steal, or for any fraudulent pur- Punishmentfor pose destroy or conceal any testamentary instrument, shall conSiSf °' sufii'er such punishment by fine or imprisonment, or both, "iiis, ^o. as the court shall direct. 13. "Whosoever shall steal any muniment of title shall Punishmentfor sufler such punishment by fine or imprisonment, or both, mints ofTitie'." as the court shall direct. 14. "Whosoever shall .steal any valuable security, shall ^j«];|f^'™™fj^f°'" be imprisoned for a term not exceeding seven years. able se" urities. 15. "Whosoever shall steal any cattle, or shall wilfully Punishmentfor kill any cattle with intent to steal the carcase or skin or in^Vattie wiVh ' any part of the cattle so killed, shall be guilty of felony, it""' '" """' and shall be imprisoned for a term not exceeding seven years. 16. Nothins: in the four last precedinsr sections con- °'V'I?™^3'^^' . T 1 11 . ° . n^ , • -1 ° 1 r- not affected by tained shall in any wise aiiect any civil remedy oi any the last four •' •' J J sections. parties. 17. "Whosoever beinff a clerk or servant shall steal any- Punishmentfor ,. .o . ./a cleric or ser- thing belonging to or m the possession or under the power vant stealing of his master, shall be guilty of felony, and shall be im- ter?" '^™''^" prisoned for a term not exceeding seven years. 18. "Whosoever with intent to, defraud any person of ^i™^^™™'?'' i-i- 1 1. r'ipiiii' 1 obtammg avti. anything which is the subject oi theit, shall obtain such cies by faiso thing from any person by any false pretence, by which the i"'®'™"'^^' owner or other person authorized is induced to part with the entire property in such thing, shall be imprisoned for a term not exceeding two years. 19. A false pretence, within the meaning of the last '^'^fS^'f]^^ preceding section, is a false representation of some state of pretence." things past or present. 20. Any fraud or ill practice in playing at any game, or befs^orlrag^rs! in bearing a part in the stakes, or on betting or wagering to i^ ""^f^^^^^ 6T6 CRIMES AND MISDBMBANOES. [PABT IV. Chap. 167. on the event, shall he deemed to be a false pretence with- when the of- in the meaning of section eighteen of this chapter. iTaroJJiy.Tn'^ '' 21. It shall uot bc available by way of defence to a per- shSi b?a de ^^'^ charged with the ofience specified in section eighteen fence on a of this chapter, that the property in question was so ob- vtetince^ '^"'^® tained as to amount in law to larceny, provided that the offender shall not be afterwards prosecuted for larceny upon the same facts. oieTo^CTvfnt 22. Whosoever being a clerk or servant, or person em- m^sS pfo?^'^ ployed for the purpose in the capacity of clerk or servant, P^''y- shall embezzle anything being the property of his employer received or taken into possession by him by virtue of such employment, shall be deemed to have stolen the same from his employer, and shall be guilty of felony, and be impri- soned for a tei'm not exceeding seven years. Punishment for 23. Whosocvcr shall Unlawfully receive or have in his kno^S'^g^^tiienl posscssion any thing which shall have been stolen or ob- l°btained''by'"' taiucd by any false pretence, or which shall have been of em'blzzbd"^' embczzlcd, knowing the same to have been so stolen, de- tained or embezzled, shall, in case the stealing, obtaining, or embezzling of such thing shall amount to felony, be impri- soned for a term not exceeding seven years ; and in all other cases shall be imprisoned for a term not exceeding two years. b'^fon')v!rmed° 24. Every person dealing in the purchase of old marine to by all dealers] storcs of cvcry description, including anchors, cables, sails, junk, iron, copper, brass, lead, and other marine stores, shall conform to the following regulations : First, — He shall not, by himself or his agent, purchase any old marine stores from any person under the age of sixteen years, under a penalty of four dollars for the first offence, and of six dollars for every subsequent offence. Secondly, — Pie shall not purchase or receive into his stores, premises, or places of deposit, any old marine stores, except in the day time, between sunrise and sunset, under a penalty of five dollars for the first offence, and of seven dollars for every subsequent one. Punishmentfor 25. If any old marine stores which had been stolen are secreting n n n • ,i ■ p stolen marine tound SGcretcd in the prcmiscs 01 any person purporting to s ores. i^g ^ dealer in such stores, such person shall be guilty of a misdemeanor, and shall be punishable therefor in manner now by law prescribed for such offence. TITLE XLI.] CRIMES AND MISDEMEANORS. 677 Chap. 168. CHAPTER 168. OF rOEGERY, AND OFFENCES RELATING TO THE COIN. 1. Whosoever shall forge or counterfeit, or shall utter, forging^ubifo' knowing the same to be foi'ged or counterfeit, the great seals, Ic. seal of the united kingdom, her majesty's privy seal, and privy signet of her majesty, her majesty's royal signmanual, her ma-jesty's great seal of the province of ISTova Scotia, or the privy seal, or the seal at arms of the said province, or of the lieutenant governor thereof, shall be guilty of felo- ny, and shall be imprisoned for a term not exceeding five years. ' 2. Whosoever shall forge or alter, or shall offer, utter. Punishment for or put oft', knowing the same to be forged or altered, any ing^^wdung*'^ writing, with intent to defraud any person, shall be guilty of felony, and be imprisoned for a term not exceeding seven years. 3. The term "writina:," as used in the last preceding; J?^''"*''''''°f . o' r a the word " wn- section, shall be deemed to apply, whether the words or tmg" in Jast figures of the forged instrument, or any of them, are ex- pressed at length or abridged, and whether they be so ex- pressed by means of writing, printing or otherwise. 4. The term person in section two of this chapter shall JJfJ'°o"d"'''*er be deemed to include her majesty, any body corporate, son" tn section company or society of persons not incorporated, or any person or number of persons who may be intended to be defrauded, whether such body corporate, company, socie- ty, person or number of persons, shall reside or carry on business in this province or elsewhere, in any place or country, whether under the dominion of her majesty or not. 5. Whosoever with intent to defraud any person, shall forgingTmunf- forge any muniment of title, or testamentary instrument, roe^'oft^'e- shall be guilty of felony, and be imprisoned for a term not exceeding seven years. 6. Whosoever shall be convicted of the false makin^r, Punishmentfor , J, ... p . p J.J. ■ * counterfeiting impairmg or counterieitmg oi any com, or oi uttermg any coin, 4o. counterfeit coin, knowing the same to be counterfeit, shall be imprisoned for a term not exceeding four years. CHAPTER 169. OP MALICIOUS INJURIES TO PROPERTY. 1. Whosoever shall maliciously set fire to any building, SSikfous^y'l^r to whatsoever purpose the same may be devoted, shall be ing a buiiding. guilty of felony, and be imprisoned for a term not exceed- ing fourteen years. V recked or in distress, or goods belong- ing thereto. 678 CRIMES AND MISDEMEANOKS. [PART IV. CiiAP. 169. 2. Whosoever shall maliciously set fire to, cast away, Panishmentfor or in anywise damage or destroy, any ship or vessel, OTcast^ingaway whether the same be completed or in an unfinished state, a vessel. with intent thereby to prejudice any owner or part owner thereof, or of any goods on board thereof, or any under- writer thereon, or on the freight thereof, or upon any goods on board thereof, shall be guilty of felony, and be imprisoned for a term not exceeding fourteen years. , exhibu™g'f"se •^- Whosoever shall exhibit any false light or signal, lights. with intent to bring any ship or vessel into danger, or shall maliciously do anything tending to the immediate loss or destruction of any ship or vessel in distress, shall be guilty of felony, and be imprisoned for a term not exceeding seven yeai-s. Punishment for 4. Whosoevcr shall maliciously destroy any part of any part'oTa°fes"ii ship Or vcssel which shall be in distress or wrecked, or any goods or articles of any kind belonging thereto, shall be guilty of felony, and shall be imprisoned for a term not exceeding seven years. Stung'flre'ip 5. Whosoever shall maliciously set fire to any mine of coal mines, &c. qq^^ q^ caunel coal, shall be guilty of felony, and be impri- soned for a term not exceeding seven j'ears. Sn'^firrto"'^ ^- Whosoever shall maliciously set fire to any stack of stacks, coals, grain, hay, straw, coals, charcoal, or pile of cordwood, shall be guilty of felony, and be imprisoned for a term not exceeding seven years. Punishment for 7_ Whosocvcr shall maliciously place or throw into, placing gun- . J L ) powder near upon, against or ucar any building or vessel, any gun- seis, ic!^'^''^' powder or other explosive substance, with intent to destroy or damage the same, or any machinery or fixtures, or chattels personal, shall, whether or not any explosion takes place, and whether or not any damage is efi"ected, be guilty of felony, and be imprisoned for a term not exceeding three years. b?e"kh™™o™ 5- Whosoever shall maliciously break or cut down any sa™ii?,dikes, gca bank or sea wall, or any dike or aboiteau, whereby any bridges. ' " lauds shall be overflowed or damaged, or shall be in danger of being so, or shall maliciously cut down, break, or other- wise destroy any mill dam, or shall maliciously pull down, or in anywise damage or destroy any public bridge, shall be guilty of felony, and be imprisoned for a term not exceeding seven years. Panishmentfor 9. Whosocvcr shall maliciously destroy or damage anv dairiaging trees , .. j.cin jPnii in gafdens, tree or plant, growing in any garden, field, or street, shall ''^'''^°""'^^*^' be committed to jail for a term not exceeding one year, or fined in a sum not exceeding forty dollars. cmtinsTnd"°' 10. Whosoever shall unlawfully cut and take away any carrying away com, or grain of any kind whatsoever growing, or shall corn, robhmg i ° i n j .^ i , r- ,. n ■, gardens, &a., rob any orchard, garden, or other plantation, ot any fruit, hed'jfes'J^or^r™ Vegetables, or other things therein growing, or wilfully cieJ,'if.^^'"' break down, cut, or remove any part of any hedge, fence TITLE XLI.] CRIMES AND MISDEMEANORS. 679 or other enclosure, or shall remove from the premises, or Chap. 169. injure any vehicle, sleigh or article belonging to any person, and on his premises, shall be committed to jail for a term not exceeding six months, or fined in a sum not exceeding twenty dollars. 11. W hosoever shall maliciously destroy or damage any damfgSg"""'^ glass or wood work, or any metal, or any utensil or fixture, Ij-^^^^i ™°,'?' ^^j whether made of metal or other material fixed in any in any puwio square, street, or other place dedicated to public use or ^neet or square ornament, shall be committed to jail for a term not exceed- ing one year, or fined in a sum not exceeding forty dollars. 12. Whosoever shall maliciously kill any cattle, or Srii^^r'^"*" cause any harm to any cattle, with intent to kill such maiming cattio. cattle, or render the same useless to the owner, either permanently, or for a time, shall be committed to jail for a term not exceeding one year, or fined in a sum not exceeding forty dollars. 13. Whosoever shall wantonly and cruelly beat, abuse, ^an'oni^Tnl'"' or ill-treat any cattle, shall be punished by fine or impri- erueiiy beating sonment in jail, at the discretion of the court". 14. "Whosoever shall maliciously set fire to any crop of ^"tti'n'^Tre^to' corn, grain, or hay, whether standing or cut down, where- corn, grain, or soever the same may be growing, shall be imprisoned in ^^' the penitentiary or committed to jail for a term not ex- ceeding three years. 15. Whosoever shall maliciously destroy or damage any Punishmentfor thing kept for the purposes of art, science or literature, or tic'ies^lS^a"' as an object of curiosity in any museum or other reposi- "'"^<'"™' *'^- tory, which museum or other repository is either at all times, or from time to time, open for the admission of the public, or of any considerable number of persons to view the same, either by permission of the proprietor thereof, or by payment of money before entering the same, shall be committed to jail for a term not exceeding six months, or fined in a sum not exceeding four hundred dollars. 16. Whosoever shall maliciously cause any water to be dama^ng"""'^ conveyed into any mine^ or into any subterraneous passage mines. communicating therewith, with intent thereby to destroy or damage such mine, or to hinder or delay the working thereof, or shall, with the like intent, maliciously pull down, fill up or obstruct, any air way, water way, drain, pit, level or shaft of or lielonging to any mine, shall be imprisoned for a term not exceeding two years. 17. The provisions contained in the last preceding sec- Provisions of tion shall not extend to any damage committed under qraiified. ground by any owner of an adjoining mine in working the same, or by any person duly employed in such working. 18. Whosoever shall be convicted of any felony not Punishment ■ 111 'iiT.! . nr. •'- upon a second punishable with death, committed after a previous con- conviction of viction for felony, shall on such subsequent conviction, be ^®^°°^' imprisoned for a terln not exceeding four years. 680 CRIMES AND MISDEMEANORS. [PART IV. Chap. 169. 19. In the case of any felony punishable under and by Principals in virtue of this title, every principal in the second degree, greelnd°accls- ^^^ ^very acccssory before the fact, shall be punishable in sories in cases the samc manner as the principal in the first degree is of felony, how • i , , i ^ ijj. xi r i. ? punished. punishable; and every accessory alter the tact, to any felony punishable by this title, except only a receiver of stolen property, shall be imprisoned for a term not exceed- ing two years. Punishmentfor 20. Whosocver shall maliciously take away, destroy or buoysfbea^oons, damage any buoys, beacons, or sea marks, placed by order *°- of the governor, or other person having authority, in any harbor, creek, or bay, shall forfeit a sum not exceeding four hundred dollars, and on failure in payment shall be committed to jail for a term not exceeding one year. makfagTCsseis 21. "Whosoevcr shall make fast any vessel or boat to fast to buoys, any such buoy, beacon or sea mark, shall forfeit a sum not beacons, &c. .^ . "^i -i n n p -i • j. i n exceeding eighty dollars, and on failure in payment snail be committed to jail for a term not exceeding six months. damagi™|°ll'i'^ ^2. Whosoever shall maliciously damage or destroy or personal pro- any real or personal property, either of a public or private speoTfi^rlmedy uature, for which no remedy or punishment is hereinbefore provided. provided, shall be committed to jail for a term not exceed- ing two years, or fined in a sum not exceeding eighty dollars. Aiders "and 23. Evci'y pcrsou who shall abet or procure the commis- ishabie as^prin- siou of any ofieuce punishablc under the preceding section, cipais. gj^g^^j j^g indicted and punished as a principal offender. ^eaionrlltrlc^ ^4. Nothing iu the twenty-second section shall extend ed- to any case where the party trespassing acted under a fair and reasonable supposition that he had a right to do the act complained of, nor to any trespass not being wilful and malicious. Appropriation £5. All fiues levied and received under the twenty- of fines under - . -.,. pit ,• n • twenty-second sccoud scction, shall, in casc 01 the destruction oi private property, or of injury thereto, be respectively paid to the party aggrieved, if known, except where such party shall have been examined in proof of the offence, and in such case, or where any public right or property is concerned, such fines shall be paid into the county treasury. section. CHAPTER 170. OF THE DEFINITION OF TERMS IN THIS TITLE. Terins in this 1. The tcrms following, wheresoever occurring through- out this title, shall be understood as hereinafter defined, unless it be otherwise specially provided, or there be some- thing in the subject or context repugnant thereto; flTLE XLI.] DEFINITION OV TERMS IN TITLE XLI. 681 2. The term " officer" shall be deemed to signify any Chap. 170. person invested with authority to execute and legally officer. bound to execute any public duties. 3. The term " woman" shall be deemed to signify any woman. female. i. The term " grievous bodily harm" shall be deemed Grievous bodiiy to signify any bodily harm from which danger to life may '^'*™' reasonably be apprehended, or whereby any limb, mem- ber, organ of sense or mental faculty is permanently dis- abled, weakened or impaired — the mutilation of any part of the body, whereby permanent disfigurement is caused, the fracture or dislocation of any bone, or any bodily harm whereby the person to whom it is caused is, during the space of twenty days at the least, in bodily pain, diseased, or unable to follow his ordinary calling or pursuits. 5. The term " writing" shall be deemed to include any Writing. material on which any words or figures, at length or abridged, are written, printed or otherwise expressed, or any m.ap or plan is described. 6. The term " testariientary instrument" shall be deem- Testamentary. ed to include any will, codicil, or other testamentary writ- ing or appointment, as well during the life of the testator whose testamentary disposition it purports to be as after his death, whether the same shall relate to real or personal estate, or to both. 7. The term "moveable thing" as used in defining jtoyeabie theft and other ofii"ences concerning property, shall be *^'°s- deemed to include money, valuable securities, muniments of title, written instruments of justice, testamentary in- struments, and all domestic animals ; also the bodies, and all parts of the bodies of dead animals, and all other chat- tels personal. 8. The term "valuable security" shall be deemed to vaiuaUe aecu- include any unsatisfied debenture and bond, bill, note, "'^' warrant, order, or other security for money, or for the pay- ment of money of this or any other country — any instru- ment for the delivery or transfer of any chattel personal — any tally, order or other security entitling or evidencing title to any share or interest in any p^iblic stock or fund of any state or country, or in any fund of any body corporate, company or society, or to any deposit in any savings bank, and any other writing which secures or evidences title to or interest in any chattel personal, or any release, receipt, discharge or other instrument evidencing payment ot money, or the delivery of any chattel personal ; and every such valuable security shall, where value is material, be deemed to be of value equal to that of such unsatisfied money, chattel personal, share, interest or deposit for the securing or payment of which, or delivery or transfer or sale of which, or for the entitling to or evidencing title to which such valuable security shall be applicable, or to that 86 682 DEFINITION OF TERMS IN TITLE XLI. [PART IV. Chap. 170. Muniment of title. Cattle. Sams subject. Night time and day time. Imprisonea and imprison- ment. What .shall be deemed custo- dy or posses- sion under this title. Terms ioTnean as defined, un- less where oiherwise par- ticularly pro- vided. of such money or chattel personal, the payment or delivery of which shall be evidenced by such valuable security. 9. The term "muniment of title" shall be deemed to include any writing as before defined in section five of this chapter, which is or shall be evidence of the title, or of any part of the title to any real estate, or to any interest there- in ; and any entry of the acknowledgment or registry of any such writing, or of any judgment or recognizance of or concerning any real estate, or any interest therein under the provisions of any a;ct of the assembly of this province. 10. The term " cattle" shall be deemed to include any horse, mule, ass, sheep, pig or goat, whatsoever be the age or sex of the animal ; and also every bull, cow, heifer, calf or ox. 11. "When the term " cattle " is used, or any particular animal is mentioned by name, the term shall, unless it be otherwise provided, be deemed to signify living cattle, or a living animal so named. 12. When the term "night time" is used, that time shall be deemed to commence at nine o'clock in the even- ing of each day, and to conclude at six o'clock in themorn- iug of the next succeeding day ; and when the term " day time" is used, that time shall be deemed to commence at six o'clock in the morning and to conclude at nine o'clock in the evening of each day. 13. The terms "imprisoned" and "imprisonment," wheresoever they occur in this title, shall be respectively deemed and taken to mean and include imprisonment in the provincial penitentiary. 14. When the having any matter or thing in the cus- tody or possession of any person is in any chapter of this title expressed to be an offence, if any person shall have any such matter or thing in his personal custody or posses- sion, or shall knowingly or wilfully have any such matter or thing in any dwelling house or other building, lodging, apartment, field, or other place open or enclosed, whether belonging to, or occupied by himself or not, and whether such matter or thing shall be so had for his own use or benefit, or for that of another, any such person shall be deemed and taken to have such matter or thing in his cus- tody or possession within the meaning of such chapter, and where there are two or more persons, any one or more shall, with the knowledge and consent of the rest, have any such matter or thing in his or their custody or posses- sion, it shall be deemed and taken to be in the custody or possession of all such persons. 1.5. All terms defined in any part of this title shall, when they occur in any other part thereof, be understood in itheir defined sense, unless it be otherwise provided, or the chapter, for the purposes of which any such term or terms is or are defined, be particularly specified. titlb xi purposc Or in the capacity of a clerk or servant, it shall be oeny. proved that he took the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such per- son is not guilty of embezzlement, but is guilty of simple larceny, or larceny as a clerk, servant or person employed for the purpose, or in the capacity ot a clerk or servant, as the case may be; and thereupon such person shall be liable to be punished in the same manner as if he had been con- victed upon an indictmbnt for such larceny ; and if, upon the trial of any person indicted for larceny, it shall be proved that he took the property in question in any such manner as to amount in law to embezzlement, he shall not, by reason thereof, be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such per- son is not guilty of larceny, but is guilty of embezzlement, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such embezzlement ; and no person so tried for embezzlement or larceny, shall be liable to be after- wai'ds prosecuted for larceny or embezzlement upon the same facts. Indictment for 32. If upou the trial of two or more persons indicted sioien goods, for joiutly receiving any property, it shall be proved that one or more of such persons separately received any part of such property, it shall be lawful for the jury to convict upon such indictment such of the persons as shall be proved to have received any part of such property. u^ainsracces- ^^" -^^J imbiber of acccssories or receivers may be sories. charged with substantive felonies in the same indictment notwithstanding the principal felon shall not be included in such indictment, or shall not be in custody or amenable to justice. Several counts 34. It shall be lawful to insert several counts in the ofstelSginan Same indictment against the same person for any number indictment. ^f distinct acts of Stealing not exceeding three, which may have been committed by him against the same person within the space of six months from the first to the last of such acts, and to proceed thereon for all or any of them. ProceedinKs on 35. If upou the trial of any indictment for larceny, it perty"stden'at shall appear that the property alleged in such indictment different times. ^^ -j^^^^ -^^^^ stolcu at ouc time, was takcu at different times,, the prosecutor shall not, by reason thereof, be required to elect upon which taking he will proceed, unless it shall appear that there were more than three takings, or that more than six months elapsed between the fii'st and TITLE XLII.] ABMINISTKATION OF CRIMINAL JUSTICE. 691 the last of such takings ; and in either of such last men- Chap. 171. tioned cases, the prosecutor shall be required to elect to ~ proceed for such number of takings, not exceeding three, as appear to have taken place within the period of six months from the first to the last of such takings. 36. In every indictment, in which it shall be necessary Description of . ^ ^ , I , monftv, bank to make any averment as to any money, or any treasury or notes, 4c., in bank note, it shall be sufiSeient to describe such money or '"dictments. note simply as money, without specifying any particular coin or note ; and such allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any treasury or bank note, although the particular species of coin of which such amount was composed, or the particular nature of the note shall not be proved ; and in cases of embezzlement, and obtaining money or treasury or bank notes by false pre- tences, by proof that the oft'ender embezzled or obtained any piece of coin or any note, or any portion of the value thereof, although such piece of coin or note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same or to any other person, and such part shall have been returned accordingly. 37. When any person shall be convicted of an assault an a^aSrwUh with intent to commit a felony, the court may sentence the intent to com- oflender to be committed to jail or imprisoned in the peni- "' '' ® °"^' tentiary for a term not exceeding two years, as it shall direct ; and may also, if it shall so think fit, require him to find sureties for keeping the peace. 38. In an indictment for any offence within the mean- ^f° "'If ^ert'°"ne- ing of the twelfth section of chapter one hundred and cessary in pro- sixty-seven, it shall not be necessary to allege that the article offences\nder in respect of which the offence is committed is the property cMpl'ie?.' of any person, or that the same is of any value. 39. In an indictment of any offence within the meaning ^^^^'^ sll^ffent of the thirteenth section of chapter one hundred and sixty- fo'- prosecution seven, it shall be sufficient to allege the thing stolen to be uude?"seetion evidence of the title or part of the title of the persons or ^^' "^^p- i^^- some one of the persons having a present interest, whether legal or equitable, in the real estate to which the same relates, and to mention such real estate or some part thereof; and it shall not be necessary to allege the thing stolen to be of any value. 40. If any person shall receive any chattel, money, ftoi™loods, valuable security or other property, the stealing, taking, *d''OTnvic"ted'' obtaining or converting whereof is an indictable misde- and punished. meanor, such person knowing the same to have been un- lawfully stolen, taken, obtained or converted, every such receiver shall be guilty of a misdemeanor, and may be indicted and convicted thereof, whether the person guilty of the principal misdemeanor shall or shall not have'been 692 ADMINISTBATION OF CRIMINAL JUSTICE. [PABT IV. CiiAP. 171. previously convicted thereof, or shall or shall not be amen- ~ ' "" able to justice ; and every such receiver shall be punished in the manner provided for the person guilty of the princi- pal misdemeanor. Beoeivera of 41. If any pcrson shall receive any chattel, money, valu- &c°,t?hfre may able sccurity or other property, knowing the same to have coiJTiJted,1;nd been feloniously or unlawfully stolen, taken, obtained or punished.' converted, every such person, whether charged as an acces- sory after the fact to the felony or with a substantive felony, or with a misdemeanor only, may be dealt with, indicted, tried and punished in any county or place in which he shall have or shall have had any such property in his pos- session, or in any county or place in which the party guilty of the principal felony or misdemeanor may by law be tried, iu the same manner as such receiver, may be dealt with, indicted, tried and punished in the county or place where he actually received such property. stolen goods, 42. If auv pcrsou ffuiltv of anv felonv or misdemeanor, when and to. ,t ,!■ P , • • ,• • -\ ■ whom to here- m steauug, taking, obtaining or converting, or m know- stored, ingly receiving any chattel, money, valuable security or other property, shall be indicted for any such offence, by or on the behalf of the owner Of the property, or his exe- cutor or administrator, and convicted thereof, in such case the property shall be restored to the owner, or his repre- sentative ; and the court before whom any such person shall.be convicted, shall have power to order the restitution thereof, and the court may in like manner, if it shall see fit, order the restitution of property in cases where the party so indicted as aforesaid may not be convicted, if the jury shall declare that the property is in the prosecutor, and had been stolen, or taken or obtained from him by felony or misdemeanor aforesaid, — provided always, that if it shall appear, before any award or order made, that any valuable security shall have been bona fide paid or discharged by some person, or body corporate, liable to the payment thereof, or being a negotiable instrument, shall have been ho7ia fide taken, or received by transfer or delivery, by some person or body corporate, for a just and valuable consider- ation, without any notice, or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained or converted as aforesaid, in such case the court shall not award or order the restitution of such security. conTfotion°for ^^' "'■'^ ^^^^ indictment for a felony, not punishable with previous felony death, Committed after a previous conviction of felony, a pro^ldlpunfsh- Certificate containing the substance and effect, omitting the ™™4cates!" formal part of the indictment and conviction for the pre- vious felony, purporting to be signed by the clerk of the court or other ofiicer having the custody of the records of the court where the offender was first convicted, or by the deputy of such clerk or officer, shall upon proof of the iden- TITLE XLII.] ADMINISTBATION OF CRIMINAL JUSTICE. 693 tity of the person of the ofi'ender, be sufficient evidence of Chap. 171. the first conviction, without proof of the signature or offi- cial character of the person appearing to have signed the same ; and if any such clerk, officer or deputy, shall utter a false certificate of any indictment and conviction for a pre- vious felony, or if any person other than such clerk, officer or deputy, shall sign any such certificate as such clerk, offi- cer or deputy, or shall utter any such certificate vs^ith a false , or counterfeit signature thereto, every such offender shall be guilty of felony. 44. Any quaker or moravian who shall be required to Quaker or Mo- give evidence in any criminal ease, shall instead of taking mlkTsoiemii an oath in the usual form, be permitted to take his solemn f^™^i,°^i affirmation or declaration in the words following, that is to say: "I, A. B., do solemnly, sincerely and truly declare and affirm ; " which said affirmation or declaration shall be of the same force and eflect in all courts of justice and other places, where by law an oath is required, as if such quaker or moravian had taken an oath in the usual form. 45. ISTo judgment upon any indictment or information Judgments not for any felony or misdemeanor, whether after verdict or reTOrslT ^r""^ outlawry, or by confession, default or otherwise, shall be avTrmen/riS-' stayed or reversed for want of averment of any matter un- "roTCd^m-'" ^* necessary to be proved, nor for the omission of the words other slight im- " as appears by the record" or of the words "with force and ^" ^<='"'°5' arms," or of the words " against the peace," nor for the in- sertion of the words "against the form of the statute" instead of the words " against the form of the statutes," or vice versa, nor for that any person or persons mentioned in the indictment or information is or are designated by a name of office or other descriptive appellation instead of his, her, or their proper name or names, nor fof omitting to state the time at which the oftence was committed in any case where time is not of the essence of the off'ence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment or exhibiting the information, or on an impossible day, or on a day that never happened ; nor for want of a proper or perfect venue, where the court shall appear by the indictment or information to have had jurisdiction over the off'ence. 46. No judgment after verdict upon any indictment or ^^™^ subject. information for any felony or misdemeanor, shall be stayed or reversed for want of a similiter, nor by reason that the jury process has been awarded to a wrong officer upon an insufficient suggestion, nor for any misnomer or misdescrip- tion of the officer returning such process, or of any of the jurors, nor because any person has served upon the jury who has not been returned as a juror by the sheriff" or other officer, and that where the offence charged has been created by any statute, or subjected to a greater degree of punish- 694 ADMINISTKATION OF CRIMINAL JUSTICE. [PART IV. Chap. 171. ment by any statute, the indictment or information shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the ofl'ence in the words of the statute, felony whS-e '^'^ ' Whcrevcr sentence shall be passed for felony on a party imprison- person already imprisoned under sentence for another lenteifoed%r Crime, it shall be lawful for the court to award imprison- another crime, jj^gj^^ f^^, ^^^^ Subsequent offence, to commence at the expi- ration of the imprisonment to which such person shall have been previously sentenced ; and where such person shall be already under sentence of imprisonment, the court may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced, although the aggregate term of imprisonment may exceed the term for which punishments could be otherwise awarded. the°piiiS?y'an'd ^^- Judgment or sentence shall not be given andawar- jyiiipping abo- dcd agaiust any person convicted of any offence, that such person do suffer the punishment of being set in the pil- lorj', or of having his ears nailed thereto or cut off, or do suffer the punishment of being whipped. Persons con- 49. Evcry pcrsou convicted of murder shall, after judg- der, howtobe mcut, be coufiucd in someplace within the prison apart after j'udgmtnt. from all other prisoners, and shall be fed with bread and water only, and with no other food or liquor except in case of receiving the sacrament, or in case of any sickness or wound, in which case the surgeon of the prison may order other necessaries to be administered ; and no person but the jailer or his servants, and the chaplain and surgeon of the prison, shall have access to any such convict without the permission in writing of the court or judge before whom such convict shall have been tried, or of the sheriff or his deputy — provided always, that in case the court or judge shall think fit to respite the execution of such con- vict, such court or judge may, by a license in writing, relax during the period of the respite all or any of the restraints or regulations hereinbefore directed to be ob- served. Pardons to 50. Where the quceu's majcsty shall be plcascd to ex- effect^4°tosub^ tend her royal mercy to any offender convicted of any ??ctioM.°°°' felony punishable with death or otherwise, and by warrant under her royal sign manual, countersigned by one of her principal secretaries of state, shall grant to such offender either a free or a conditional pardon, the discharge of such offender out of custody in the case of a free pardon, and the performance of the condition in the case of a condi- tional pardon, shall have the effect of a pardon under the great seal for such offender, as to the felony for which such pardon shall be so granted — provided always, that no free pardon, nor any such discharge in consequence thereof, nor any conditional pardon, nor the performance of the condi- TITLE XLII.] ADMINISTRATION OF CRIMINAL JUSTICE. 695 tion thereof, in any of the cases aforesaid, shall prevent or Ohap. 171. mitigate the punishment to which the offender might otherwise be lawfully sentenced on a subsequent convic- tion, for any felony committed after the granting of such pardon. 51. Where any offender hath been or shall be convicted |u?iffor™eio°" of any felony not punishable with death, and hath endured °j,^|"Pit]P"J^^t'jj or shall endure the punishment to which such offender hath to have the et been or shall be adjudged for the same, the punishment so '''^'^'"''p'"' °°'- endured hath and shall have the like effects and conse- quences as a pardon under the great seal as to the felony whereof the offender was so convicted — provided always, that nothing herein contained, nor the enduring of such punishment, shall prevent or mitigate any punishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction for any other felony. 52. It shall and may be lawful for the iude;e or iude;es Judges may; di^ ot any or the superior courts ot common law or equity, m tions against case it shall appear to him or them that any person has been fngTo°be''gmrty guilty of wilful and corrupt perjury in any evidence given, °yiJ|^o""!^4e° or in any affidavit, deposition, examination, answer or other gwen before' proceeding made or taken before him or them, to direct such person to be prosecuted for such perjury, in case there shall appear to him or them a reasonable cause for such prosecution, and to commit such person, so directed to be prosecuted, until the next term of the supreme court for the county within which such perjury was committed, unless such person shall enter into a recognizance with one or more surety or sureties conditioned for the appearance of such person at such next term of the supreme court, and that he will then surrender and take his trials and not depart the court without leave, and to require any person he or they may think fit to enter into a recognizance con- ditioned to prosecute or give evidence against such person so directed to be prosecuted^ 63. In every indictment for perjury, or for unlawfully, in indictments wilfully, falsely, fraudulently, deceitfully, maliciously, or substanoe''if ^ corruptly, taking, making, signing or subscribing any oath, be^seTfo^thf" ^ affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate or other writing, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court, or before whom the oath, affirmation, declaration, affidavit, deposition, bill, answel-, notice, certificate or other writing, was taken, made, signed, or subscribed, without setting forth the bill, answer, infor- mationj indictment, declai-ation or any part of any proceed^ ing either in law or in equity, and without setting forth the commission or authority of the court or person before whom such offence was committed. 64. In every indictment for subornation of perjufy^ or indictmentsfot- rt ii-' . ,. .,1 sr o •/ -^ subornation foi* corrupt bargammg or contractmg with any person to or perjury, 696 ADMINISTBATION OF CRIMINAL JUSTICE. [PART IV. Ohap. 171. commit wilful and corrupt perjury, or for inciting, causing or procuring any person unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, or corruptly, to take, make, sign or subscribe any oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate or other writing, it shall be sufficient, whenever such perjury or other offence shall have been actually committed, to allege the ofl'ence of the person who actually committed such perjury, in the manner hereinbefore mentioned, and then to allege that the defendant unlawfully, wilfully, and corruptly did cause and procure the said person, the said ofl'ence, in manner and form aforesaid to do and commit ; and wherever such perjury or other ofl'ence shall not have been actually committed, it shall be sufficient to set forth the substance of the oflfence, charged upon the defendant, without setting forth or averring any of the matters or things hereinbefore rendered unnecessary to be set forth or averred in the case of wilful and corrupt perjury. Competehcy of 55. On any prosecution by indictment or information Trfai foffo°g"ery ^g^ii^st any pcrson for forging any deed, writing, instru- *o. ment or other matter, or for uttering or disposing of any deed, writing, instrument or other matter, knowing the same to be forged, or for being accessory to any such offence if the same be a felony, or for aiding, abetting or counselling the commission of any such offence if the same be a misdemeanor, no person shall be deemed to be an incompetent witness in support of any such prosecution by reason of any interest which such person may have or be supposed to have in respect of such deed, writing, instrument, or other matter. Amendment of 56. It shall be lawful for the court, if it shall see fit, to jndictments,Im* j i • t , i • n ,• n rv. i formations, &c. cause the indictmcnt or miormation tor any ottence when any variance shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof in the indictment or information whereon the trial is pending, to be forthwith amended in such parti- cular or particulars by some officer of the court, and after such amendment the trial shall proceed in the same manner in all respects both with regard to the liability of witnesses to be indicted for perjury and otherwise, as if no variance had appeared. m°™fOT 'child- 57. If on the trial of any woman for murder of her child ™"' ma 'find ^^^ shall be acquitted thereof, it shall be lawful for the jury the*mother by whose vcrdict she shall be acquitted, to find in case it fOTi5'g°to con^ shall so appear in evidence, that she was delivered of a ceai the birth, q^^^h^^ and that shc did by secret burying or otherwise dis- posing of the dead body of such child endeavour to conceal the birth thereof, and thereupon the court may pass such sentence as if she had been convicted upon an indictment for the concealment of the birth. TITLE XLII.] ADMINISTRATION OF CRIMINAL JUSTICE. 697 68. Whenever the governor shall exercise the preroga- Chap. 171. tive of the crown, by extending mercy to any offender proeeedinga convicted of any crime punishable withi death, upon con- of^deathTs'com- dition of imprisonment with hard labor in the provincial ""^'ile^ofVhe penitentiary either for the term of life or for any number prerogative. of years, and shall make the same known to the court before which such offender hath been or shall be convicted, such court shall allow to such offender the benefit of a conditional pardon, and make an order for the immediate imprisonment of such offender under and upon the terms and conditions therein expressed ; and in case such intention of mercy shall be made known to any judge of the supreme court, such judge shall allow to such offender the benefit of a conditional pardon, and make an order for the immediate imprisonment, with hard labor, of such offender in the pro- vincial penitentiary, in the same manner as if such inten- tion of mercy had been signified to any such court as afore- said ; and such allowance and order shall be considered an allowance and order made by the court before which such offender was convicted, and shall be entered on the records of the same court by the proper officer thereof, and shall be as effectual to all intents and purposes and have the same consequences as if such allowance and order had been made by the same court during the continuance thereof; and every such order, whether made by the court or any judge of the supreme court as aforesaid, shall subject the offender to be conveyed to the provincial penitentiary and there kept to hard labor during the term of imprison- ment mentioned therein, in like manner as if such impri- sonment had been imposed as a punishment by the sentence of any court by authority of law. 69. Any person that shall hereafter be committed to charges of oou- jail for any offence or misdemeanor, having means or abi- Irrto^jautobe lity thereunto, shall bear his own reasonable charges for thimseives^ conveying or sending him to jail, and the charges also of pr''ocee°din''3'Yo such as shall be appointed to guard him and shall so guard recoTer the him thither; and if any person shall refuse to defray such ^*™^' charges, then a justice of the peace, by writing under his hand and seal, shall give warrant to any constable to sell so much of the goods and chattels of the said person so to be committed as by the discretion of the said justice shall satisfy and pay the charge of his conveying and sending to the jail, the appraisement to be made by two inhabitants of the town or place where such goods or chattels shall be, and the overplus of the money which shall be made thereof to be delivered to the party to whom such goods shall belong. 60. If the person so to be committed shall not have or °™|eg''how d- be known to have any goods or chattels which may be sold lowed and paid, for such purpose, then the said justice, on application by any constable or other officer who so conveyed such person 698 ADMINISTRATION Of CfelMINAL JtSKCE. [pART IV. Chap. 171. to jail, shall upon oath examine into and ascertain the reasonable expenses to be allowed such constable or other officer, and shall forthwith, without fee, by warrant under his hand and seal, order the treasurer of the county to pay the same, which the treasurer is hereby required to do as soon as he receives such warrant, and any sum so paid shall be allowed in his accounts. how mly bf ^^' 61. "WhcD any poor person shall appear on recognizance paid their ex- jq any court, to give evidence against another accused of any felony or misdemeanor, it shall be in the power of the court, if it shall think fit, at the prayer and on the oath of such person, and on consideration of his circumstances, in open court to order the treasurer of the county in which the offence shall have been committed, to pay unto such person such sum of money as to the court shall seem rea- sonable for his time, trouble and expense ; which order the proper officer shall make out and deliver unto such person upon being paid for the same the sum of ten cents and no- more ; and such treasurer is hereby required, upon deli- very of such order, forthwith to pay to such person or other person authorized to receive the same, such sum of money ™, „ , as aforesaid, and shall be allowed the same in his accounts, where county ' treasurers have 62. In case such treasurer shall not have any money m no funds the i • t t j_ j_n iij* »'.•' expenses men- his hauds to pay the sum so ordered for conveying poor two1ast?J?-'^ prisoners to jail, or for the attendance of witnesses, the out°of the'' ™i> s^™^ shall be paid out of the public treasury of the pro- lic treasury. vinCC. nif wai3"rOT" 63. All witnesses on criminal trials attending on the witnesses on part of the prosccutiou, shall be entitled, under the sane- prosecution. ^ tion of the court or a judge, to receive from the county treasurer the same fees for their travel and actual attend- ance as witnesses in civil suits are now entitled to receive; such fees to be paid on the certificate of the attorney or solicitor general, queen's counsel, or o:^cer appointed by a judge to conduct such prosecution, that such witnesses duly attended under subpoena and gave evidence at such trials, and are entitled to receive therefor the amount therein stated, and such subpoenas shall be produced on taxation. S'^pa'y the™"^' 64. The couuty treasurer is required, upon the delivery amount. of the prothouotary's certificate, to pay the amount of the fees mentioned therein. In the absence 65. "Whenever, in the absence of the attorney general and soUcitor ^'^ and solicitor general, it shall appear to the court expedient fourt sha?rap- ^nd uccessary to appoint any one counsel, to conduct and 'n.secute"n*° T^^^^^g^ ou behalf of her majesty, the proceedings and trial behalf of the of, any Criminal prosecutions pending before the court, it ho^texed! ^' shall bc lawful for the court to direct any queen's counsel present therein, or, in his absence, to appoint from among the barristers attending thereat, some one competent per- son to conduct and manage such proceedings, and to tax TITIiE XLII.] ADMINISTRATION OF CRIMINAL JUSTICE. 699 and allow to him for his services such reasonable fees as Chap. 171. he would have been entitled to for the like services as the attorney of any party in a civil action, together with such reasonable counsel fees not exceeding for any one prose- cution the sum of twenty dollars, as the court shall deem adequate to the services performed on such prosecution. But the costs to be taxed shall in no case exceed thirty dollars for all writings and papers and for all counsel fees therein ; and on the allowance and taxation the court shall not allow for any but necessary services and expenses, and notice of the time and taxation shall be given to the clerk of the crown or his deputy. 66. Upon the production of a certificate under the seal how%aid.'^'^' of the court of the amount so taxed and allowed, it shall be lawful for the governor to grant his warrant therefor upon the receiver general, who shall pay the amount. 67. In all cases where the party prosecuted shall be con- 5"f abmty"*'''^ victed and be found by the court of ability to pay the ex- may be adj'udg- penses of prosecution, to be taken under this chapter, the expen&^s^'of ^ court shall adjudge such defendant to pay the expenses of p™^'^'-'""™- prosecution, and shall issue execution accordingly, and the ;amount shall be paid to the receiver general. 68. A certificate containing the substance and effect certificate of o ^^ w »/ oigri^ of crown .only, omitting the formal part of the indictment and trial sufficient for x'pi • -I j.*j.i* Ti indictment for :ior any ieiony or misdemeanor, purportmg to be signed by perjury. .the clerk of the court or other officer having the custody ,of the records of the court where such indictment was .tried, or by the deputy of such clerk or other officer, for which certificate no fee shall be demanded or paid, shall jipon the trial of any indictment for perjury or suborna- ±ion of perjury, be sufficient evidence of the trial of such indictment |for felony or misdemeanor, without proof of ithe signature or official character of the person appearing .to have signed the same. 69. It shall not be necessary to state any venue in the No yenue to be body of any indictment, but the county named in the mar- '**'''^'^' gin thereof shall be taken to be the venue for all the facts stated in the body of such indictment, provided that in cases where local description is or hereafter shall be re- quired, such local description shall be giyen in the body of the indictment. 70. ISTo indictment for any offence shall be held insuffi- '^e„t''n?t'*to'be cient for want of the averrnent of any matter unnec'essary he™ insufflci- ' to be proved, nor for the on^issipn qf the words " as appears '^°*' by the record," or of tl^e words " witt force and arms," or of the words " against the pesace,"' nor for the insertion of the words "against the form of the statute" instead of "against the form of the statutes," or vice versa, nor for that any persqn mentioned in the indictment is designated by a name Qf office or other descriptive appellation instead of bis proDer, name, nor for omitting to state the time at 700 ADMINISTRAITION Of CRIMINAL JUSTICE. [PART IV. Chap. 171, Objections to 1 ndietment when to be taken. Ko person piO' secuted shall postpone the trial of indict- ment against him. Pleas of autre- fois convict. Definition of the word "in- dictment."' "Property." Criminals may, be sentenced during sittings lit Halifax. whicli the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been com- mitted on a day subsequent to the finding of the indict- ment, nor on an impossible day or on a day that never happened, nor for want of a proper or perfect venue, nor for want of a proper or formal conclusion, nor for want of or imperfection in the addition of any defendant, nor for want of the statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil, in any case where the value or price, or the amount of damage, injury or spoil, is not of the essence of the offence. 71. Every objection to any indictment for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash such indictment, before the jury shall be sworn, and not afterwards; and every court before which any such objections shall be taken, for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended in such particular, by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared. 72. ISo person prosecuted shall be entitled to traverse or postpone the trial of any indictment found against him; provided, that if the court, upon the application of the person so indicted, or otherwise, shall be of opinion that he ought to be allowed a further time, either to prepare for his defence or otherwise, such court may adjourn the trial of such person to the next subsequent session, upon such terms, as to bail or otherwise, as to such court shall seem meet, and may respite the recognizances of the pro- secutor and witnesses accordingly, in which case the pro- secutor and witnesses shall be bound to attend, to prose- cute and give evidence at such subsequent session, without entering into any fresh recognizance for that purpose. 73. In any plea of autre-fois convict, or autre-fois ac- quit, it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment. 74. In the construction of this chapter the word " indict- ment" shall be understood to include information, inquisi- tion, and presentment, as well as indictment, and also any plea, replication, or other pleading, and any record; and the terms " finding of the indictment," shall be understood to include the taking of an inquisition, the exhibiting of an information, and the making a presentment; and the word "property" shall be understood to include goods, chattels, money, valuable securities, and every other mat- ter or thing, whether real or personal, upon or with re- spect to which any offence may be committed. 75. A judge of the I supreme court may sentence con- victed criminals, on any day of the sittings at Halifax, as well as in term time. TITLE XLII.] ADMINISTRATION OF CKIMINAL JUSTICE. 701 76. "Whenever on the trial of any indictment for any Chap. 171. felony or misdemeanor, there shall appear to be any variance Amendment of between the statement in such indictment and the evidence indictments. offered in proof thereof, in the name of any county, division, city, borough, town corporate, parish, township or place, mentioned or described in any such indictment, or in the name or description of any person stated or alleged to be the owner of any property, real or personal, which shallform the subject of any offence charged therein, or in the name or description of any person therein stated or alleged to be injured or damaged, or intended to be injured or dam- aged by the commission of such offence, or in the christian name or surname, or both, or in the other description whatsoever of any person therein named or de- scribed, or in the name or description of any thing therein named or described, or in the ownership of any property therein named or described, it shall be lawful for the court before which such trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his de- fence on such merits, to order suchindictmenttobe amended according to the proof, by some officer of the court or other person, both in that part of the indictment where such vari- ance occurs and in every other part of the indictment which it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury or otherwise as such court shall think reasonable ; and after any such amendment the trial shall proceed when- ever the same shall be proceeded with in the same man- ner in all respects and with the same consequences with respect to the liability of witnesses to be indicted for perjury and otherwise as if no such variance had occurred ; and in all such cases the order for the amend- ment shall either be endorsed on the indictment or en- grossed and filed with the indictment and records of the court — provided that in all such cases where the trial shall be so postponed, it shall be lawful for the court to respite the recognizance of the prosecutor and witnesses, and of the defendant and his sureties, if any, in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence respectively ; and- the defen- dant shall be bound to attend to be tried at the time and place to which such trial shall be postponed, without entering into any fresh recognizances for thkt purpose, in the same manner as if they had been originally bound by their recognizances to appear and prosecute, or give evi- dence at the time and place to which such trial shall have been so postponed ; — provided also, that where any such trial shall be to be had before another jury, the crown and the defendant shall respectively be entitled to the same challenges as they were entitled to before the first jury was sworn. 702 ADMINISXRATION OF CRIMINAL JUSTICP. [PART IV. Chap. 171. Verdicta'where amendments made. Records in cases of amend- ments. ■ Indictment foi murder and^ manslaughter. Indictment for forgery, &c. Indictment for engraving, &c. Description of instrument in indictment. Allegation ne- cessary in the jQdictoent. 77. Every verdict and judgment vs^hich shall be given after the making of any amendment under the provisions of the last section, shall be of the same force and effect in all respects as if the indictment had originally been in the same form in which it was after such amendment was made. 78. If it shall become necessary at any time, for any purpose, to draw up a formal rebord in any case where any amendment shall have been made under the provisions of section seventy-six, such record shall be drawn up in the form in which the indictment was after such amendment was made, without taking any notice of the fact of such amendment having been made. 79. In any indictment for murder or manslaughter, it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused ; but it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, ^wilfully and of his malice aforethought kill and murder the deceased ; and it shall be sufficient in every indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased. 80. In any indictment for forging, uttering, stealing, embezzling, destroying or concealing, or for obtaining by false pretences any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac simile thereof, or otherwise describing the same or the value thereof. 81. In any indictment for engraving or making the whole or any part of any instrument or thing, or for using or having the unlawful possession of any plate or other material, upon which the whole or any part of any instru- ment or thing shall have been engraved or made, or for having the unlawful possession of any paper upon which the whole of any part of any instrument or thing shall have been made or printed, it shall be sufficient to describe such instrument or thing by any name or designation by which the same may be usually known, without setting out any copy or fae simile of the whole or any part of such intru- ment or thing. 82. In all other cases, wherever it shall be necessary to make any averment in any indictment as to any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, with- out setting out a copy or fae simile of the whole or any part thereof. 83. It shall be sufficient in any indictment for forging, uttering, offering, disposing of, or putting off any instru- ment, or for obtaining or attempting to obtain any prO' TITLE XLII.] ADMINISTKATION OF CRIMINAL JUSTICE. ' 703 perty by false pretences, to allege that the defendant did Chap. 171. the act with intent to defraud, without alleging the intent of the defendant to defraud any particular person, and on the trial of any of the offences in this section mentioned, it shall not^be necessary to prove an intent on the part of the defendant to defraud any particular person, but it shall be sulSicient to prove that the defendant did the act charged with an intent to defraud. 84. If on the trial of any persoln charged with any ^®'^c^sjses°wiere felony or misdemeanor, it shall appear to the jury upon offences are not the evidence that the defendant did not complete the °°™p®^ offence charged, but that he was guilty only of an attempt to commit the same, such person shall not, by reason thereof, be entitled to be acquitted, but the jury shall be at liberty to return as their verdict, that the defendant is not guilty of the felony or 'misdemeanor charged, but is guilty of an attempt to commit the same ; and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misde- meanor charged in such indictment ; and no person tried as lastly mentioned shall be liable to be afterwards prose- cuted for committing or attempting to commit the felony or misdemeanor for which he was so tried. 85. Whosoever on trial for any felony whatever, and Persons oon- which shall include an assault, shall be convicted of as- lauit; where' sault, shall be committed to jail or imprisoned in the peni- '=°°fi'^<=<^- tentiary as the court shall direct, for a term not exceeding five years, and shall be fined at the discretion of the court. 86. The governor in council may order a special sitting special sittings of the supreme court in any of the counties of this province court''o?"for for the trial of prisoners charged with felonies. neS. °^ ^"^°" 87. Such order shall appoint a particular day when the order to be court shall be held, and shall be published in the royal ihe gSlt^te"^ gazette for, at least three weeks before the day appointed ^eeS'piV for the opening of the court. Immediately upon the order vious, 4c. being made, the clerk of the executive council shall trans- mit copies thereof to the chief justice, and to the prothono- notary and to the sheriff of the county wherein the special sitting of the court is to be held. 88. Upon the receipt of the order by the prothonotary, summoning he shall issue venires for the grand and petit jury to meet L^M^sal-y* at the time specified therein, and the sheriff shall imme- °ffi'=^"- diately summon such juries, with constables and other offi- cers whose attendance is required at such sitting, who shall be liable to the same penalties for non-attendance as when summoned to attend the ordinary terms or sittings of the court. , 89. Any judge of the supreme court may preside at ^proceeding!* such special sitting,. and aU trials, judgments and proceed- forora3?f"had 704 ADMINISTRATION OF CRIMINAL JUSTICE. [PART IV. Chap. 171. ings thereat, shall have the same force and effect as if such atordinarjr trials, judgments and proceedings had taken place at one MngT °' ■'"" of t^e ordinary terms or sittings of the court. Presidingjndge 90. The presiding judgc may adjourn the sittings from Sttln|s^°"™ d.ay to day as occasion may require. Extended to 91. The provisions of the last five sections may be demLnoS!^' extended to the trials of criminals charged with misde- meanors. oi° trial "or"^ 92. In all cases where it shall be given in evidence Insane persons, upon the trial of any person charged with treason, murder, or felony, or any misdemeanor, that such person was in- sane at the time of the commission of such offence, and such person shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the commission of such offence, and to declare whether such person was acquitted by them on account of such insanity, and if they shall find that such person was insane at the time of the committing such off'ence, the court, before whom such trial shall be had, shall order Buoh persons, such pcrson to be kept in strict custody, in such place, and 'm such manner, as to the court shall seem fit, until the pleasure of the governor in council shall be known ; and it shall thereupon be lawful for the governor in council to give such order, for the safe custody of such person, during his pleasure, in such place and in such manner, as to the governor in council shall seem fit ; and in all cases where any person has been acquitted of any such offences, on the ground of insanity at the time of the commission thereof, and has been detained in custody as a dangerous person, by order of the court before whom such person has been tried, and still remains in custody, it shall be lawful for the governor in council to give the like order for the safe cus- tody of such person, during his pleasure, as he is hereby enabled to give in the cases of persons who shall hereafter be acquitted on the ground of insanity. arr°a°i|nm°elt™ 93. If any pcrsou iudictcd for any offence shall be in- insane persona, gane, and shall, upou arraignment be found so to be, by a jury lawfully empannelled for that purpose, so that such person cannot be tried upon such indictment, or if, upon trial of any person so indicted, such person shall appear to the jury charged with such indictment, to be insane, it shall be lawful for the court before whom any such person shall be brought to be arraigned or tried as aforesaid, to direct such finding to be recorded, and thereupon to order such person to be kept in strict custody until the pleasure of the governor in council shall be known ; and if any person charged with any offence shall be brought before any court, to be discharged for want of prosecution, and such person shall appear to be insane, it shall be lawful for such court to'order a jury to be empannelled to try the sanity of such person, and if the jury so empannelled shall TISLE XLll.J ADMINISTRATION OP CRIMINAL JUSTICE. 705 find such, person to be insane, it shall be lawful for such Chap. 171. court to order such person to be kept in strict custody, in " such place and in such manner as to such court shall seem fit, until the pleasure of the governor in council shall be known ; and in all cases of insanity so found, it shall be lawful for the governor in council to give such order for the safe custody of such person so found to be insane dur- , ing his pleasure, in such place, and in such manner, as to him shall seem fit. 94. If any person against whom a warrant may be issued Upon proof of by the chief justice of the queen's bench, or supreme court, juJtic^whJfhas or by any other justice having competent authority, in any fo^feiony"^''''' of her majesty's provinces or governments in North Ame- Ifpapf/'^iSo'^ rica respectively, for any felony or other crime of a high this province, a nature, escapes into or is found in, any part of JSTova Scptia, may endorse any justice of the peace of the county, city or pl^ce where S'rbes^uffl-'^ such person resides or is supposed to be, may, upon due t^'^arrest'Th"^ proof being made of the handwiting of such chief or other party una take justice who issued the warrant, endorse his, the said jus- province where tice's, name thereon ; and such warrant so endorsed shall ^'*"'*°' issued. be a' sufficient authority to all persons to whom such war- rant was originally directed, and also to all constables and policemen of the county, city or place where such warrant has been so endorsed, to execute the same by apprehend- ing the person or persons against whom such warrant has been granted, and to convey him or them into the province or government from which such warrant was originally issued, to be dealt with according to law. 95. In all cases where an off"ender is made liable to im- ^^^^^^ ^^ j, prisonment under any statute of this province, the iuds-es of sonment m li J J- J. j-i ■ • i 4. 1 • penitentiary or the supreme court may direct the imprisonment to be m common jaii. the provincial penitentiary, or in the common jail of the county, at their discretion ; but if the judge shall direct the imprisonment to be in the common jail, such imprison- ment shall not extend beyond the period of six months. 96. All fines and forfeitures levied and collected by the ^^> paf|'fo°'* judgment of the supreme court in any of the counties of county treasu- this province, shall be paid into the hands of the county ''^^' treasurer for such counties respectively. 97. The fines and forfeitures so paid to _ the county How appued. treasurer shall be paid and applied by him towards the payment of witnesses attending criminal trials, and also witnesses attending prosecutions for ofl'ences committed against the provisions of the first and second sections of chapter one hundred and sixty-three of the revised statutes, " Of ofl'ences against the administration of justice," under the same rules and regulations as provided by the act hereby amended. 98. Witnesses for the prosecution attending before the SilTtole^J?" grand jury, in criminal cases, and witnesses for the prosecu- • tion attending on the trial of indictments, shall be entitled 700 ADMINISTRATION OF CRIMINAL JUSTICE. [PART IV. CiiAP. 171. to fees, as prescribed by section sixty-three of this chapter, notwithstanding that such attendance may not have been Proviso. under subpoena or recognizance ; provided that the court or a judge shall be satisfied, by affidavit, that there was reasonable ground for instituting the proceedings, and that the attendance of the witnesses was material and necessary, , and that they attended expressly to give such evidence and for no other purpose. Judge may ^9. When a person has been convicted of criminal ton"! ?^^^' treason, felony, or misdemeanor, before any court of oyer and terminer, or jail delivery, the judge before whom the case was tried may, in his discretion, reserve any questions of law which arose on the trial, for the consideration of the justices of the supreme court at Halifax, and there- upon may respite execution of the judgment on such conviction, or postpone the judgment until such question has been considered and decided ; and in either case the Proceedings court at which the trial took place shall, in its discretion, when question . . . -, -c . ' . . ' reseryed. commit the pcrson convicted to prison, or take a recogni- zance of bail, with one or two sufficient surety or sureties in such sums as the court thinks fit, conditioned for his appearance at such time as the court directs, to receive judgment, or to render himself in execution, as the case may be. stetllnds^i'gn 100. Thc judgc shall thereupon state, in a case to be toHaufax^*™' signed by him, the question or questions of law so re- served, with the special circumstances upon which the same arose; and such case shall be transmitted by the judge to the prothonotary of the supreme court at Halifax, on or before the first day of the term of such supreme court at Halifax, next after the time where such trial was had. sh£rSL:same 101. The justiccs of the supreme court shall hear and ther^on?^"'^''^' finally determine the said questions, and reserve, affirm, or amend any judgment given on the indictment or inquisi- tion on the trial whereof such questions arose, or shall avoid such judgment or order, an entry to be made on the record that in the judgment of the said justices the party convicted ought not to have been convicted, or shall arrest the judgment; or, if no judgment has been given, shall order judgrnent to be given thereon at some future session ot oyer and terminer, or jail delivery, or shall make such other order as justice may require. Judgment and 102. The judgment and Order of the Said justiccs shall tifie'dand se°nt" be Certified under the hand of the chief justice, or senior to sheriff. judge, of such court, to the clerk of the crown of the county in which the trial took place, who shall enter the same on the original record in proper form ; and a certifi- cate of such entry, under the hand of the clerk of the crown, in the form a& near as may be, or to the effect mentioned in the schedule annexed to this chapter, with TITLE XLII.] DUTIES OP MAOISTKATES IN CRIMINAL CASES. 707 the necessary alterations to adapt it to the circumstances Chap. 172. of the case, shall be delivered or transmitted by him to the sheriff or jailer in whose custody the person convicted is; and the said certificate shall be sufiicient vs^arrant to ao'co"dance° '" such sheriff or jailer, and all other persons, for the execu- *^'='^^wi"i- tion of the judgment as so certified to have been aflirmed or amended, and execution shall thereupon be executed on such judgment; or if the judgment has been reversed, avoided or arrested, the person convicted shall be dis- charged from further imprisonment, and the next court of oyer and terminer, or jail delivery, shall vacate the recog- nizance of bail, if any. 103. The judgments of the justices of the said supreme Judgments- courts shall be delivered in open court, after hearing °^ eiTere . counsel, or the parties, in case the prosecutor or person convicted thinks it fit that the ease should be argued, in like manner as the judgments of the said supreme court are delivered. SCHEDULE. Whereas at the supreme court for the county of ■ — , held on — — — , before the Honorable — • , one of the justices of the said court, A B, late of — ■ , having been found guilty of felony and judgment thereon given, that \_siaie the substance'} the court before v^hom he vs^as tried reserved a certain question of law for the consideration of the justices of the supreme court at Halifax, and execu- tion was thereupon respited in the meantime [^as the case may be]. This is to certify that the justices of the supreme court at Halifax, having met at Halifax in term, it was considered by the said justices there that the judg- ment aforesaid should be annulled, and an entiy made on the record that the said A B ought not, in the judgment of the said justices, to have been convicted of the felony aforesaid, and you are hereby required forthwith to dis- charge the said A B from your custody. (Signed) E. F, CHAPTER 172. OF THE DUTJES OF J-USTICBS OF THE PEACE IN CRIMINAL MATTERS, 1. In all cases where a charge or complaint (A.) shall Persons guijty 1 T 1 J' • j_- ji i ° 1 -Vx 'i • or suspected of be made before a justice that a person has committed or is an indictable suspected of having commited any indictable offence within ftpp^e^hen^r^. |;i^e limits of tbe jq^isdiction of ^uct^ justice, pr that a per- 708 DUTIES OF MAGISTRATES IN CRIMINAL CASES. [PART IV. Chap. 172. son has committed or is suspected to have committed an ~~ indictable oflence out of the jurisdiction of such justice and is residing or is suspected to be within the limits of the jurisdiction of such justice, if the person so charged or complained against shall not then be in custody, such jus- tice shall issue his warrant (B.) to apprehend such person, to be dealt with as therein and thereby directed ; but in- stead of a warrant in the first instance, the jiistice, if he think fit, may issue his summons (C.) requiring such per- son to appear at a certain time and place therein mentioned to answer to the charge preferred. If after being served with such summons in manner hereinafter prescribed, such person shall fail to appear in obedience thereto, such jus- tice, or any other justice of the county, may issue his war- rant (D.) to apprehend such person to be dealt with as in such last mentioned warrant directed. But nothing in this section contained shall prevent a justice from issuing the warrant hereinbefore first mentioned at any time before or after the time mentioned in the summons for the appear- ance of the accused party. fcilTi?^"'^' 2. In all cases of indictable offences committed on the fence is com- ^ . -, . i i t i i t - mitted on the high scas, or lu any creek, harbor, haven or other place m laidbey^uithl wMch the admiralty of England have or claim to have jur- ^'^^'^^ isdiction, and in all cases of offences committed on land beyond the seas for which an indictment may be preferred within this province, a justice for any county in which any person charged with having committed or being suspected to have committed any such offence shall be or be suspec- ted to be, may issue his warrant (E.) to apprehend such person, to be dealt with as therein and thereby directed. whenanindict 3_ "VVhcre an indictment shall be found by the erand ment is tound . . , ■ ,, , , i ,i •' ■, t° and the party lurv affamst a pcrsou then at large, whether such person hath rot ap- "' i Si t? i S Jv ■ x m peared, manner shall havc Dccn Douud by rccognizancc to appear to answer of proceeding, ^j^g game or uot, the person acting as clerk of the court where the indictment shall be found shall at any time after- wards after the end of the same term or sittings, upon application of the .prosecutor or any person on his behalf, and on payment of twenty cents, if such person shall not have already appeared and pleaded to such indictment, grant unto such prosecutor or person a certificate (E.), which being produced to a justice of the county where the offence shall in such indictment be alleged to have been committed or in which the person indicted shall be suspec- ted to be, such justice shall issue his warrant (G.) to appre- hend the party so indicted ; upon the party being appre- hended and being proved to be on oath the same person charged in the indictment, the justice before whom ha is brought shall, without further inquiry or examination, by warrant (H.) commit him for trial or admit him to bail as hereinafter mentioned. If the person indicted shall then be confined in jail for any otljer offence, then the justice, TITLE XLII.] DUTIES OF MAGISTRATES IN CRIMINAL CASES. 709 upon it being proved before him upon oatb that the person Chap. 172. indicted and the person so confined are the same person, shall issue his warrant (I.) directed to the keeper of such jail, commanding him to detain such person in custody until discharged therefrom by due course of law. 4. A justice of the peace may grant or issue any such warrants may , '' . '^ , "^ ° c^ -I 11 issue on a Sun- warrant or any search warrant on a Sunday as well as on day. any other day. 5. "Whenever a charge or complaint for any indictable ^^^j^f^''^^"* ofience shall be made before a justice, if it be intended to an indVctabie'^ issue a warrant in the first instance against the party ma™c3nmusTb6 charged, an information and complaint thereof (A.) in writ- d°roati5?o'ther- ing on the oath of the informant or of some witness in that wj^e when a behalf shall be laid before the justice; but where it is in- issue; varian- tended to issue a summons in the first instance, the infor- uona'w?''*''" mation and complaint need not be in writing, nor upon oath, but may be by parol, and no objection shall be taken or allowed to any such information or complaint for any alleged defect therein in substance or in form, or for any variance between it and the evidence adduced on the part of the prosecution before the justice who shall take the examination of the witnesses in that behalf. 6. Upon such information and complaint being so laid, Procee,dinga by the justice receiving the same may, if he shall think fit, wanSftTvarf- issue his summons or warrant respectively, as hereinbefore oaSslS?ad-® directed, to cause the party charged to appear as therein joumment. and thereby directed ; and every such summons (C.) shall be directed to the party so charged in and by such infor- mation, and shall shortly state the matter of such infor- mation, and shall require the party to whom directed to appear at a certain time and place therein mentioned, to answer to such charge ; and such summons shall be served by a constable or other peace officer upon the person to whom directed, by delivering the sam6 to the party per- sonally, or if he cannot conveniently be met with then by leaving the same with some person for him at his last or usual place of abode ; and the person who shall have served the same shall attend at the time and place, and before the justice in the summons mentioned, if necessary, to verify such service upon oath ; and if the party summoned shall not appear as required, the justice shall issue his warrant (D.) to compel his attendance as therein and thereby pre- scribed. If any variance or alleged defect in substance or in form between the summons or warrant, and the evi- dence adduced in support thereof shall appear to the jus- tice to be sach that the party charged has been deceived or misled thereby, such justice, at the request of the party charged, may adjourn the hearing of the case to a future day, and remand such party or admit him to bail, as here- inafter mentioned. 7. It shall not be necessary to make a warrant (B.) re- warrant need turnable at any particular time, but it may remain in force abiea^t>ny™ar. 710 DUTIES OF MAGISTRATES IN CRIMINAL CASES. [PART IV. Chap. 172. until it shall be executed. It may be executed by appre- tiouiar time, bending tbe offender at any place within which the justice executeli oe"" issuing it hath jurisdiction, or in case of fresh pursuit at fresh pursuit, any placB in the next adjoining county or place and within seven miles of the border of such first mentioned county, without having such warrant backed, as hereinafter men- variances. tioned. No objection shall be taken or allowed to any such warrant for any defect therein in substance or in form, or for any variance between it and the evidence ad- duced on the part of the prosecution before the justice who shall take the examination of the witnesses in that behalf, as hereinafter mentioned ; but if it appear to the justice that the party charged has been deceived or misled by any such variance, at his request the justice may ad- journ the hearing of the case to a future day, and in the meantime remand the party charged or admit him to bail, as hereinafter mentioned. rad"rs°ed';^pro- ^- ^^ '^^'^ pcrsou against whom any such warrant shall ceedings there- te issued shall uot be found within the jurisdiction of the prosecutor or justicc issuiug the Same, or if he shall be or be suspected Senses 'shaiT re- to be in any place within this province, a justice of the c'ounty where county or placc whcre such person shall be or be suspected the^pnsoner is to be, upou proof made upon oath of the handwriting of the justice issuing the warrant, may make an endorsement (K.) upon such warrant, signed with his name, authorizing the execution thereof as thereon endorsed, and the carry- ing of the person therein named, when apprehended, be- fore the justice who first issued the warrant, or some other justice of that county or place where the oflfence men- tioned in the warrant appears therein to have been com- mitted ; but if the prosecutor or any of the witnesses for the prosecution shall then be in the county or place where the person shall have been so apprehended, the party ap- prehending him, if so directed by the justice backing the warrant, shall convey him before such last mentioned jus- tice or some other justice of the same county or place, and thereupon such justice may take the examination of such prosecutor or witnesses, and proceed in every respect in manner hereinafter directed with respect to persons charged before a justice with an ofience alleged to have been committed in another county or place than that in which such person has been apprehended. Evidence for 9. If it shall be made to appear to any justice by oath ifoVsecmed™ that any person within his jurisdiction is likely to give material evidence for the prosecution and will not volun- tarily appear for the purpose of being examined, such jus- tice shall issue his summons (L. 1) to such person, requir- ing him to appear at the time and place therein mentioned, to testify as therein directed. If without sufficient excuse he neglect to appear at such time and place after proof upon oath of such summons having been served upon sucl^ TITLE XLII.] DUTIES OP MAOISTKATES IN CRIMINAL CASES. 711 person either personoUy or by leaving the same with some Chap. 172. person for him at his last or usual place of abode, the justice before whom such person should have appeared may issue a warrant, (L 2) which warrant, if necessary, . may be backed as other warrants. If such justice shall be satisfied by evidence upon oath that it is probable that such person will not attend to give evidence unless com- pelled, then, instead of a summons, he may issne a war- rant (L. 3) in the first instance, which, if necessary, may be backed as above. If on the appearance of siich person, either in obedience to the summons or under the warrant, he shall refuse to be examined upon oath concerning the premises, or shall refuse to take such oath, or having taken such oath shall refuse to answer questions concerning the premises without just excuse for such refusal, the justice by warrant (L. 4) may commit such party so refusing to jail, for any time not exceeding seven days, unless he shall in the meantime consent to be examined and to answer. 10. "Whenever any person shall appear or be brought Proceedings before a justice charged with an indictable offence, whether wherea party"^ committed within the province or upon the high seas, or on an'ind^otabre'* land beyond the sea, whether such person appear volun- s^^ns^'how''"" tarily or be in custody for the same or another ofi'ence, the takenandwhen justice, before he commit the accused person for trial or trial! "^^ admit him to bail, shall in the presence of the accused per- son, who shall be at liberty to put questions to any witness produced against him, take the statement (M.) on oath of those who shall know the facts and circumstances of the case, and shall put the same into writing, and such deposi- tions shall be read over to and signed respectively by the witnesses so examined, and shall also be signed by the justices taking the same. Before any such witness shall be examined the justice shall administer the usual oath; and if upon the trial of the person accused it shall be proved upon oath that any person whose deposition shall have been so taken is dead, or so ill as to be unable to travel, and also that such deposition was taken in the presence of the per- son accused, and that he, or his council or attorney, had full opportunity of cross examining the witness, then if such deposition purport to be signed by the justice by or before whom the same purports to have been taken, it may be read in evidence on such prosecution without fui'ther proof, unless it shall be proved that such deposition was not in fact signed by the justice purporting to sign the same. 11. After the examination of all the witnesses on the Depositions to part of the prosecution shall have been completed, the t''o\e«iu'tione'I justice shall, without requiring the attendance of the wit- his'*s[n|vfers°1f' nesses, read or cause to be read to the accused, the deposi- any to bere'du- tlons taken against him, and shall say to him these words, and miy bo^' or to the like effect : usedontdai. 712 DUTIES OF MAGISTRATES IN CRIMINAL CASES. [PART IV. OlIAP. 172. Room where examinations are talten not necessarily an open court. Becognizance of prosecutor and witness how taken; papers how and where returned " Having heard the evidence, do you wish to say any- thing in answer to the charge ? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence against you upon your trial." And whatever the prisoner shall then say in answer thereto shall be taken down in writing (N.) and read over to him, and shall be signed by the justice and kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned, and upon the trial of the accused party the same may if necessary be given in evidence against him without further proof thereof, unless it shall be proved that the justice purporting to sign the same did not in fact sign the same ; but before such accused person shall make any statement, the justice shall state to him, and give him clearly to understand, that he has nothing to hope from any promise of favor and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall then say may be given in evidence against him upon his trial. The prosecutor may, however, give in evidence any admission or confession or other statement of the person accused or charged, made at any time which by law would be admissable evidence against such person. 12. The room or building in which the justice shall take such examinations or statements as above shall not be deemed an open court for that purpose, and the justice at his discretion may order that no person shall have access to, or be or remain in such room or building without the consent of such justice, if it appear to him that the ends of justice will be best answered by so doing. 13. The justice before whom any witness shall be ex- amined may bind by recognizance (0. 1) the prosecutor and every such witness to appear at the next term or sit- ting of the court in which the accused is to be tried, then and there to prosecute, or to prosecute and give evidence, or to give evidence, as the case may be, against the party accused, which recognizance shall specify the profession, mystery, art, or trade of every such person recognized, together with his christian and surname, and the place of his residence, and being duly acknowledged it shall be sub- scribed by the justice before whom taken, and a notice (0. 2) thereof shall at the same time be given to the person bound thereby : and the several recognizances so taken, together with the written information, if any, the deposi- tions, the staitement of the accused, and the recognizance of bail, if any in such case, shall be delivered by the justice to the proper officer of the court in which the trial is to be had, before or at the opening of the court on the first day of term, or at such other time as the presiding judge there- TITLID XLII.] DUTIES OF MAGISTRATES IN CRIMINAL CASES. 713 of shall order. If such, witness shall refuse to enter into Chap. 172. such recognizance the justice by his warrant (P. 1) may commit him to jail in the county where the trial is to be had until after the trial of the accused party, unless in the meantime he shall enter into such recognizance before some justice of the county where such jail is situate. If after- wards for want of sufficient evidence in that behalf, or other cause, the justice before whom such accused party shall have been brought shall not commit him or hold him to bail for the offence with which he shall have been charged, the same or any other justice of the county by his order (P. 2) may direct the keeper of such jail to discharge him from further custody, and such keeper shall forthwith dis- charge him accordingly. 14. If from the absence of witnesses, or for any other ^e^l^^It'ol reasonable cause, it shall become necessary or advisable further exami- ,t/.jt "J- pji • ,• p nations : orders to deter the examination or lurther examination oi any therefor; re- witnesses for any time, the justice before whom the ac- hilappTaraSe, cused party shall appear or be brought may by his warrant * "ijed"" ^°'^' (Q. 1) from time to time remand the party accused for such time as to him shall seem reasonable, not to exceed eight clear days, to jail or other place of security in the county. If the remand be for a period not exceeding three clear days the order therefor may be made verbally to a constable or person to be named by the justice in that behalf, with directions to bring up the accused party again at a time and place appointed for continuing the exami- nation. But any justice may order the accused party to be brought before him or any other justice for the same county or place before the expiration of the time for which the accused shall be so remanded, and the jailer or officer in charge shall obey such order, and any justice before whom the accused shall so appear or be brought, may discharge him upon his entering into a recognizance (Q. 2, 3) with or without a security or securities, at the discretion of the justices, conditioned for his appearance at the time and place appointed for the continuance of such examination. If he shall not appear, then such jus- tice or any other justice present, upon certifying (Q. 4) upon the back of the recognizance, may transmit si^ch recognizance to the prothonotary of the court of the county within which such recognizance shall have been taken, to be proceeded upon as other recognizances, and such certifi- cate shall be prima facie evidence of the non-appearance of such accused party. 15. . "Whenever a person shall appear or be brought be- ^^"^'Jffhi^lta fore a justice charged with an offence alleged to have been fence charged committed within a county or place wherein such justice mTtter?n°a™ shall nothave jurisdiction, he shall examine such witnesses the 'ju^stYolTas and receive such proof of the charge as shall be brought fj°5jj""'^^°- before Mm, and if in the opinion of such justice the evi- 90 714 DUTIES OF MAGISTRATES IN CBIMINAL CASES. [PAET IV. Ckap. 172. dence adduced shall be sufficient proof of tlie charge made " against the accused party, the justice shall thereupon com- mit him to jail, or shall admit him to bail as hereinafter mentioned, and shall bind over the prosecutor if he have appeared before him, and the witnesses, by recognizance accordingly as hereinbefore mentioned. But if the evi' dence shall not in the opinion of such justice be sufficient to put the accused party upon his trial for the offence, v^ith which he is charged, the justice shall bind over such wit- nesses as he shall have examined by recognizance to give evidence as hereinbefore mentioned, and he shall issue his warrant (R. 1) in that behalf, and at the same time deliver the information and complaint, and the depositions and recognizances taken by him, to the constable having the execution of the last named warrant, to be by him delivered to the justice before whom he shall take the accused, and the depositions and recognizances shall have the same validity and effect as if taken before such last mentioned justice ; and they, with such depositions and recognizances as the last mentioned justice shall take in the matter, shall be transmitted to the court where the accused party is to be tried, if he shall be committed for trial or admitted to bail. fo™e the'°lfttce ^^' ^^'^^''■^ accuscd party shall be taken before the justice havingjurisdic- last mentioned by virtue of such last named warrant, the pu^ewhS-lthe pcrsou SO couvcyiug him -shall be entitled to be paid his oo™mitted^ ex- costs and expenses for that service, and upon his produ- oirhowteMd ^^^S t^® accused party before such justice, and delivering and defrayed, him iuto custody as such justicc shall direct, and deliver- ing his warrant, the information, if any, deposition and recognizances, and proving by oath the hand-writing of, the justice subscribing the same, such justice to whom the accused party is produced shall forthwith ascertain the sum which ought to be paid for such service, and for his reasonable costs and expenses of returning, and shall thereupon make an order (R. 2) in favor of such person upon the county treasurer for payment thereof, and the treasurer upon production of the order shall pay the same in the usual course. If the justice last named shall not think the evidence against such accused party sufficient to put him upon trial, .he shall discharge him without bail, and the recognizances taken by such first named justice shall be void. teke'blii fo^aii "'-'''■ W'hcrc a pcrsou shall appear or be brought before offencea, trea- a justicc, charged with any offence other than treason, or punfshabfe""^ a fclouy punishable with death, he may in his discretion cepted?^'^ ®^" admit such person to bail upon such surety or sureties as he shall think sufficient to ensure the appearance of the person accused at the time and place for the trial of such offence, and he shall take the recognizance (S. 1), and notice thereof (8. 2) shall be given. TITLE XLII.] DUTIES OF MAGISTRATES IN CRIMINAL CASES. 715 18. In all cases where a person charged with an indict- Chap. 172. able offence shall be committed for trial, the justice who parties, how ad- shall have signed the warrant for his commitment, may at StCTcommlt! any time before trial, at his discretion, admit such accused ment, party to bail as above if he shall be of opinion that such a,ccused party ought to be admitted to bail, he shall in such case certify (S. 3) on the back of the warrant of commit- ment his consent to such party being bailed, stating the amount of bail which ought to be required, and thereupon any justice attending, or being at the jail where such accu- sed party shall be in custody, on production of such certi- ficate shall admit him to bail in manner above mentioned, or if it shall be inconvenient for the surety or sureties in such case to attend at such jail to join with the accused person in the recognizance the committing justicQ may make a duplicate of such certificate (S. 4), and upon the same being produced to any justice for the same county or place he may make the recognizance of the surety or sure- ties in conformity therewith. 19. Upon such recognizances being transmitted to the same subject. keeper of such jail, and produced, together with the cer- tificate on the warrant of commitment, to a justice attend- ing or being at the jail, he may thereupon take the recog- nizance of the accused party and order him to be dis- charged out of custody as to that commitment as herein- after mentioned. 20. In all cases where an accused party in custody shall Beoognizance ,.,,.., . . ,T -^1 "^ 1 ■^. • now transmit- be admitted to bail by a justice other than the committing tod to the pro- justice, such justice so admitting him to bail shall forth- tr«isonMid with transmit the recognizance of bail to the proper officer aWeTith'Sfa'th or to the committing; iustice, to be transmitted by him, with b^nabie only . .. T rr^ -r» •• pt^^ **^® supreme the exaipamations, to such onxcer. liut no justice ot the pourt or a peace shall admit any person to bail for treason, or a felony ^'^ ^'^' punishable with death ; nor shall such person be admitted to bail except by the supreme court, or by one of the jus- tices thereof. 21. In all cases where a j'ustice shall admit to bail a warrants of de- person who shall then be in prison charged with the offence sue>herea° '^" for which he shall be so admitted to bail, such justice From prison, shall send to or cause to be lodged with the jailer a war- rant of deliverance (8. 5), and thereupon such jailer shall obey the same. 22. "When all the evidence offered upon the part of the if tho evidence prosecution shall have been heard, if the justice shall be the°party°s™au of opinion that it is insufficient to put the accused party OThtrwile'^lo'*' upon his trial for any indictable offence, he shall forthwith miitid oi^aS' order such accused party, if in custody, to be discharged muted to tail. as to the information then under inquiry ; but if he shall think the evidence sufficient to put the accused party upon his trial for an indictable offence, or if the evidence given raise a strong or probable presumption of the guilt of the 716 DUTIES OF MAGISTRATES IN CRIMINAL CASES. [PART IV. Chap. 172. accused party, then tlie justice shall by his warrant (T. 1) commit him to jail until he shall be delivered by due course of law, or admit him to bail as hereinbefore mentioned. thecTOsifwea 23. The con Stable Or pcrsou to whom the warrant of p?fsm'?er°set^ Commitment shall be directed shall convey the person ac- i^g forth his cuscd to jail as therein directed, and there deliver him dition"" '^°°" together with such warrant to the jailer, who shall there- upon give a receipt (T. 2) for such prisoner, setting forth the state and condition in which such prisoner was when he was so delivered into custody. eri?l'thl"sd«r 24. The several forms in the schedule to this chapter duie anuejed, contained, or forms td the same effect, shall be valid. SCHEDULE. (A.) Ivformation and comjolaint for an indictable offence. County of , \ to wit: J The information and complaint of C. D., of , [yeo- man,'] taken this day of , A. D. 18 — , before the undersigned, who saith that [^c, stating the offence.'] Sworn before me, the day and year first above men- tioned, at ■ J. S., J. P. (B.) Warrant to apprehend a person charged with an indictable offence. To any constable or peace officer of the county of : Whereas A. B., of' , [laborer,] hath this day been charged upon oath before the undersigned, for that he on the day of , at , did \J-c. stating shortly the offence :] These are therefore to command you forth- with to apprehend the said A. B., and to bring him before me or some other of her majesty's justices of the peace in and for the said county, to answer such charge, and to be further dealt with according to law. Given under my hand and seal at , this day of , A.D. 18— . J. S., J. P. (seal.) (C.) Summons to a person charged loith an indictable offence. To A. B., of [laborer:] "Whereas you have this day been charged before the un- dersigned for that you on the — —day of [^c, statiiig TITLE XLII.] DUTIES OF MAGISTRATES IN CRIMINAL CASES. 717 the nature of the o fence ;] These are tierefore to command Chap. 172. you to appear before me on the day of , at ' o'clock iu the noon, at , or before some other justice or justices of the peace as may then be there, to answer such charge, and to be further dealt with accord- ing to law. Herein fail not. Griven under my hand and seal at , this day of A. D. 18— . J. S., J. P. (seal.) (D.) Warrant where the summons is disobeyed. To any constable or other peace officer of the county of Whereas on the day of , last past, A. B., of , [laborer,'] was charged before the undersigned for that [^c. as in summons ;] and whereas I then issued my sum- mons to the said A. B., commanding him to appear before me on the day of , at o'clock in the noon, at , or before such other justice or justices of the peace as migbt then be there, to answer such a charge, and to be further dealt with according to law ; and whereas the said A. B. hath neglected to appear at the time and place appointed by such summons, although it hath now been proved to me upon oath that such summons has been duly served upon the said A. B. : These are therefore to command you forthwith to apprehend the said A. B. and bring him before me or some other justice of the peace, to answer such charge, and to be further dealt with according to law. Herein fail not. Given under my hand and seal at , this day of , A. D. 18— J. S., J. P. (seal.) (E.) Warrant to apprehend a person charged with an indictable offence committed on the high seas or abroad. For offences committed on the high seas the warrant may be the same as in ordinary cases, but describing the offence to have been committed " on the high seas, out of the body of any county of this province, and within the jurisdiction of the admi- ralty of England." For offences committed abroad for which the parties may be indicted in this province, the warrant also may be the same as in ordinary eases, but describing the offence to have been committed " on land out of the province, to wit : at , in the kingdom of , or " at , in the island of , in the West Indies," or "at , in the East Indies," or as the case may be. "^18 DUTIES or MAGISTRATES IN CRIMINAL CASES. [PART IV. Chap. 172. (F.) Certificate of indictment being found. ■ I hereby certify that at a court of oyer and terminer and general jail delivery, \or a court of general sessions of the peace,'] holden in and for the county of , at , in , a bill of indictment was found by the grand jury against A. B. therein described as A. B. late of , [laborer,'] for that he [^c, stating shortly the offence,] and that the said A. B. hath not appeared and pleaded to the said indictment. Dated this day of , 18 — . J. D. Clerk [o'>" deputy clerk] of the crown, [or clerk of the peace.] (G.) 'Warrant to apprehend a person indicted. To any constable or peace ofiScer of the county of ■■ — : Whereas it hath been duly certij&ed by J. D., clerk [or deputy clerk] of the crown [or clerk of the peace] that [^c. stating the certificate :] These are therefore to command you foi-thwith to apprehend the said A. B. and to bring him before me or some other justice or justices of the peace, to|be dealt with according to law. G-iven under my hand and seal at , this day of , A. D. 18— . J. S., J. P. (seal.) (H.) Warrant of commitment of a person indicted. To any constable of , and to the keeper of the jail of the county of : Whereas, by warrant under my hand and seal, dated the -day of , after reciting that it had been certified by J. D. [^c. as in the certificate,] I commanded the consta- bles and all other peace officers of the said county, forthwith to apprehend the said A. B. and bring him before me the undersigned, or before some other justice or justices of the peace, to be dealt with according to law : and whereas the said A. B. has been apprehended under such warrant, and being now brought before me, it is proved upon oath that the said A. B. is the same person who is named and charged in and by the said indictment : These are therefore to com- mand you the said constable, forthwith to take and safely convey the said A. B. to the jail at , in the said county, and there to deliver him to the keeper thereof, together with this warrant ; and I hereby command you the TITLE XLII,] DUTIES OP MAMSTRATES IN CRIMINAL OASES. 719 said keeper to receive the said A. B. into yonr custody in Chap. 172. the said jail, and him there safely to keep until he shall be thence delivered by due course of law. Given under my hand and seal, at , this -— day of — , A.D. 18-^. J. S., J. P. (seal.) (!•) Warrant to detain a person indicted who is already in custody for another offence. To the keeper of the jail at , in the county of : Whereas it hath been duly certified by J. I)., clerk [or deputy cterU] of the crown [or clerk of peace} for the county of , [^c. stating the certificate ;] And whereas I am informed that the said A. B. is in your custody in the said jail at , aforesaid, charged with some offence or other matter; and it being now proved upon oath before me that the said A. B. so indicted and the said A. B. so in your cus- tody, are one and the same person : these are therefore to command you to detain the said A. B. in your custody in the jail aforesaid, until by writ of habeas corpus he shall be removed therefrom for the purpose of being tried upon the said indictment, or until he shall be otherwise re- moved or discharged out of your custody by due course of law. Given under my hand and seal at — <■ this — — day of , A. D. 18—. J. S., J. P. (seal.) (K.) Endorsement in hacking a warranto -■} County of — to wit : Whereas proof upon oath hath this day been made be- fore me, a justice of the peace for the said county of -, that the name of J. S. to the within warrant subscribed is the hand writing of the justice of the peace within men^ tioned, I do therefore hereby authorize W. T., who bringeth to me this warrant, and all other persons to whom the same was originally directed, or by whom it may be lawfully ex- ecuted, and also all constables and other peace officers of the said county to execute the same within the last men- tioned county,* and to bring the said A. B., if apprehended within the same cotinty, before me, or before some other' justice or justices of the peace of the same county, to be dealt with according to la\v. Given undel* my hand this ^—^ day of — , 18—. J. S., J. P. * 'The words following lli« asterisk arS to be used Only wh«re the justice backing th« warrant shall think -fit. 720 DUTIES OF MAGISTRATES IN CRIMINAL CASES. [PART IV. Chap. 172. (L. 1.) Summons to a witness. To E. F., of , llahorer.l Whereas information hath been laid before the under- signed that A. B. \_SfC. as in the summons or warrant against the accused] and it hath been made to appear to me upon oath that you are likely to give material evidence for the prosecution, these are therefore to require you to appear before me on the — ^ day of next, at — o'clock in the 'uoon, at -—, or before such other justice or justices of the peace as may then be there, to testify what you shall know concerning the said charge so made against the said A. B. as aforesaid. Herein fail not. Given under my ban d and seal at , this day of =., A. D. 18—. J. S., J. P. (seal.) (L. 2.) WajTant where a witness has not obeyed a summons. To any constable or other peace officer of the county Of : Whereas information having been laid before the under- signed that A. B. \J-c. as in summonsl and it having been made to appear to me upon oath that E. F., of , [laborer,'] was likely to give material evidence for the pro- secution, I did issue my summons to the said E. F., requir- ing him to appear before me at , on the day ot , or before such other justice or justices of the peace as might then be there, to testify what he should know respecting the said charge against the said A. B. ; and whereas proof hath this day been made before me, upon oath, of such summons having been served upon the said E. F., and whereas the said E. F. hath neglected to appear at the time and place^appointed by the said summons, and no just excuse has been offered for such neglect: these are therefore to command you to bring the said E. F. before me at on the day of , at — o'clock in the noon, or before such other justice or justices of the peace as may then be there, to testify what he shall know concerning the said charge so made against the said A. B. as aforesaid. G-iven under my hand and seal at — ■■ — — , this day of , A. D. 18—. J- S., J. P. (seal.) ItffB XLtl.j DUl'IES OP IVtAGISTaATES IN CRIMINAL CASES. 721 (L. 3.) Chap. 172. Warrant for a witness in the first instance. To any constable or other peace officer of the county of : "Whereas information hath been laid before the under- signed that \J-c. as in swnmons,'] and it having been made to appear to me upon oath that E. F. of [laborer'] is likely to give material evidence for the prosecution, and that it is probable that the said B. F. will not attend to give evidence without being compelled so to do ; these are therefore to command you to bring the said E. F. before me at — : , on the day of , at oclock in the noon, or before such other justice or justices of the peace as may then be there to testify what he shall know concerning the said charge so made against the said A. B. as aforesaid. Given under my hand and seal, at , this day of , A. D. 18— J. S., J. P. (seal.) (L. 4.) Warrant of commitment of a loitness for refusing to be sworn or to give evidence. To any constable of , and to the keeper of the jail at , in the county of . "Whereas A.B. was lately charged before the undersigned for that [^c. as in the summonsli and it having been made to appear to me upon oath that E. F. of was likely to give material evidence for the prosecution, I duly issued miy summons to the said E. F. requiring him to appear before me at on the day of , or before such other justice or justices of the peace as should then be there, to testify what he should know concerning the said charge ; and the said E. F. now appearing before me \_or being brought before me by virtue of a warrant in that behalf to testify as aforesaid] and being required to make oath or affirmation as a witness in that behalf hath now refused so to do [or being duly sworn as a witness doth now refuse to answer certain questions concerning the premises which are here put to him] without offering any just excuse for such his refusal : these are therefore to command you the said constable to take the said E. F. and him safely convey to the jail at ■ , in the county aforesaid, and there deliver him to the keeper thereof, together with this warrant ; and I do hereby command you the said keeper of the said jail to receive the said E. F. into your custody in the said jail, and him there safely keep for the space of days, for 91 722 DUTIES OF MAGISTRATES IN CRIMINAL CASES. [PAKT IV. Chap. 172. his said contempt, unless he shall in the meantime con- sent to he examined and to answer concerning the premises, and for so doing this shall he your sufficient warrant. Griven under my hand and seal, at , this day of A. D.18— . J. S., J. P. (seal.) (M.) Depositions of witnesses. County of to wit The examination of C. D. of [ farmer,'} and E. F. of [laborer,'] taken on oath this day of , A. D. 18 — , at , in the county aforesaid, before the under signed, in the presence and hearing of A. B., who is charged this day before me, for that he the said A. B. at , on the day of , [^c. describing the offence as in a warrant of commitment.'] This deponent, C. D. on his oath saith as follows: [^c. stating the deposition of the witness as nearly as possible in the words he uses. 'When his deposition is complete let him sign it.] And this deponent, E. F. upon his oath, saith as follows : The above depositions of C. D. and E. F. were taken and sworn before me at , on the day and year first above mentioned. J. S., J. P. (K) Statement of the accused. A. B. stands charged before the undersigned, one of her majesty's justices of the peace for the county of , this day of A. D. 18 — , for that he the said A. B. at , on the day of , [^c. as in the cap- tion of the depositions ;] and the said charge being read to the said A. B., and the witnesses for the prosecution, C. D. and E. F. being severally examined in his presence, the said A. B. is now addressed by me as follows : " Having heard the evidence do you wish to say anything in answer to the charge ? You are not obliged to say any thing unless you desire to do so ; .but whatever you say will be taken .down in writing; and may be given in evidence against you upon your trial," whereupon the said A. B. saith as follows : [J3jjre state whatever the prisoner may say, and in his very words, as nearly as possible, — get him to sign it if he will.] A. B. Taken before me at -, on the day and year first above mentioned. J. S., J. P. title xlii.] duties of magistrates in criminal cases. 723 (0. 1.) Chap. 172. Hecognizance to prosecute or give evidence. County of , ) to wit : J Be it remembered that on the day of , A. D. 18 — , C. D. of , in the said county, \_farm.er'] person- ally came before me, a justice of the peace for the said county, and acknowledged himself to owe to our sovereign lady the queen, the sum of dollars, to be levied of his goods and lands, to the use of our said lady the queen, her heirs and successors, if he the said C. D. shall fail in the condition hereof. Taken and acknowledged the day and year first above mentioned, at , before me. J. S., J. P. Condition to prosecute. The condition of this recognizance is such, that whereas one A. B. was this day charged before me, J. S., a justice of the peace for that [^c, as in the caption of the deposiiions.'] If, therefore, he the said C. D. shall appear at the next court of oyer and terminer or general jail delivery, [_or at the next court of general sessio7is of the peace,'] to be holden in and for the county of ,* and there prefer, or cause to be preferred, a bill of indictment for the offence aforesaid against the said A. B., and there also duly prosecute such indictment, then the said recognizance to be void. Condition to prosecute and give evidence. Same as in the last form to the asterisk (*), and then thus : " and there prefer, or cause to be preferred, a bill of indict- ment against the said A. B. for the offence aforesaid, and duly prosecute such indictment and give evidence thereon, as well to the jurors who shall then inquire of the said offence as also to those who shall pass upon the trial of the said A. B., then the said recognizance to be void." Condition to give evidence. Same as in the last form but one to the asterisk (*), and then thus : " and there give such evidence as he knoweth upon a bill of indictment to be then and there preferred against the said A. B. for the offence aforesaid, as well to the jurors who shall there inquire of the said offence as also to the jurors who shall pass upon the trial of the said A, 3., then the paid reeognizjijice to be yoid," 724 duties of magistrates in criminal cases. ^^part iv. Chap. 172. (0. 2.) Notice of the recognizance to be given to the prosecutor and his witnesses. County of "1 to wit: j Take notice that you, CD., of '—, are bo,und to appear at the next court [where the offence is to be tried] to be holden at , in the said county, and then and there \_prosecute and] give evidence against A. B. ; and unless you then appear there and [prosecute and] give evidence accordingly, the recognizance entered into by you v^ill be forthwith levied on you. Bated this day of , A. D. 18-^. J. S., J. P. (P. 1.) ■Commitment of a witness for refusing to enter into the recognizance. To any constable of , and to the keeper of the jail at , in the county of : Whereas A. B. was lately charged before the under- signed for that [(fc, as in the summons to the witness,] and it having been made to appear to me upon oath that B. P. of was likely to give material evidence for the prose- cution, I duly issued my summons to the said E. P., requiring him to appear before me at — , on the day of , or before such other justice or justices of the peace as should then, be there, to testify what he shoiild know concerning the said charge made against the said A. B. ; and the said E. P. now appearing before me [or being brought before me by virtue of a warrant in that behalf] to testify as aforesaid, hath been now examined by me touch- ing the premises, but being required by me to enter into a recognizance conditioned to give eviden,ce against the said A. B. hath now refused so to do ; these are therefore to command you, the said constable, to take the said E. P., and him safely convey to the said jail at , in the county aforesaid, and there deliver him to the keeper thereof, together with this warrant ; and I do hereby command you, the keeper of the said jail, to receive the said E. P. into your custody in the said jail, and safely keep him tmtil after the trial of the said A. B. for the offence aforesaid, unless in the meantime he shall duly enter into such recognizance as aforesaid in the sum of dollars, before some justice of the peace for the said county, conditioned in the usual form to appear at the next court of [oyer and terminer or general jail delivery, or general sessions of the peace] to be holden in and for the county of , and there to give evidence before the TITLE XLII.] DUTIES OF MAQISTKATES IN CRIMINAL CASES. 725 graud jury upon any bill of indictment -whicli may then Chap. 172. and there be preferred against the said A. B. for the offence aforesaid, and also to give evidence upon the trial of the said A. B. for the said offence, if a true bill should be found against him for the same. Given under my hand and seal at , this day of , A. D. 18—. J. S., J. P. (seal.) (P. 2.) Subsequent order to discharge the witness. To the keeper of the jail at , in the county of : "Whereas by my order, dated the day of , A. D. 18 — , reciting that A. B. was lately charged before me for a certain offence therein mentioned, and that E. P. having appeared before me and being examined as a witness for the prosecution in that behalf, refused to enter into a recognizance to give evidence against the said A. B., and I therefore committed the said E. F. to your custody, and required you to safely keep him until after the trial of the said A. B. for the offence aforesaid, unless in the meau- time he should enter into such recognizence as aforesaid ; and whereas for want of sufficient evidence against the said A. B. he has not been committed or holden to bail for the said offence, but on the contrary thereof has since been discharged, and it is therefore not necessary that the said E. F. should be detained longer in your custody : These are therefore to order and direct you the said keeper to discharge the said E. F. out of your custody as to the said commitment, and suffer him to go at large. Given under my hand and seal at , this . — day of , A. D. 18—. J. S., J. P. (seal.) (Q. 1.) Warrant remanding a prisoner. To any constable of , and to the keeper of the jail at , in the county of : "Whereas A. B. was this day charged before the under- signed for that [Sfc. as in the warrant to apprehend,'] and it appears to me to be necessary to remand the said A. B. : these are therefore 1^ command you the said constable forthwith to convey the said A. B. to the jail at , in the said county, and there to deliver him to the keeper thereof, together with this warrant: and I hereby com- mand you the said keeper to receive the said A. B. into your custody in the said jail, and there safely keep him 72G DUTIES OF MAGISTRATES IN CRIMINAL CASES. [PART IV. Chap. 172. until the day of , instant, when I hereby com- mand you to have him at , at o'clock in the noon of the same day before me, or before such other justice or justices of the peace as may then be there, to answer further to the said charge, and to be further dealt with according to law, unless you shall be otherwise or- dered in the meantime. Griven under my hand and seal at , this day of , A. D. 18—. J. S., J. P. (seal.) (Q. 2.) ^Recognizance of hail instead of remand on an adjournment of examination. -'} County of — to wit : Be it remembered that on the day of , A. D. 18 — , A. B. of , {laborer,'] L. M. of , [grocer,'] and IST. 0. of , [butcher,] personally came before me and severally acknowledged themselves to owe to our lady the queen the several sums following, that is to say : the said A. B. the sum of , and the said L. M. and N. 0. the sum of each, to be levied of their several goods and lands respectively to the use of our said lady the queen, her heirs and successors, if he the said A. B. fail in the condition hereof. Taken and acknowledged the day and year first above mentioned, at , before me. J. S., J. P. Condition. The condition of this recognizance is such, that whereas the said A. B. was this day, [or on the day of , last past, charged before me for that [^c. as in the warrant] ; and whereas the examination of the witnesses for the pro- secution in this behalf is adjourned until the day of ■ , A. D. 18 — , if therefore the said A. B. shall appear before me on the said day of , at — o'clock in the noon, or before such other justice or justices of the peace as may then be there, to answer further to the said charge, and to be further dealt with according to law, then the said recognizance to be void. (Q. 3.) ]!fotice of recognizance to be given to the accused and his sureties. Take notice that you A. B., of , are bound in the TITLE Xlill.] DUTIES OF MAaiSTKATES IN CRIMINAL CASES. 727 sum of , and your sureties L. M. andlST. 0., in the sum Chap. 172. of each, that you A. B. appear before me J. S., at , on the day of , A. D., 18 — , at o'clock in the noon, or before such other justice or justices of the peace as may then be there, to answer further to the charge made against you by C. T>., and to be further dealt with according to law ; and unless you A. B. personally appear accordingly, the recognizances entered into by yourself and sureties, will be forthwith levied on you and them. Dated this day of A. D., 18 — . J. S., J. P. •) (Q. 4.) Certificate of non-appearance to be endorsed on the recognizance. I hereby certify that the said A. B. hath not appeared at the time and place in the above condition mentioned, but therein hath made default by reason whereof the within written recognizance is forfeited. J. S., J. P. (R. 1.) Warrant to convey the accused before a justice of the county, ^c. in which the offence was committed. To any constable or peace officer of the county of ■ Whereas A. B. of , [laborerJ hath this day been charged before the undersigned for that [^c. as in the war- rant to apprehend'] ; and whereas I have taken the deposi- tion of C. D., a witness examined by me in this behalf; but inasmuch as I am informed that the principal witnesses to prove the said offence against the said A. B. reside in the county of , where the said offence is alleged to have been committed : these are therefore to command you forthwith to take and convey the said A. B. to the said county of — — - — , and there carry him before some justice or justices of the peace in and for that county, and near where the offence is alleged to have been committed, to answer further to the said charge before him or them, and to be further dealt with according to law ; and I hereby further command you to deliver to the said justice or jus- tices the information in this behalf, and also the said depo- sition of C. D. now given into your possession for that purpose, together with this warrant. ^^,Griven under my hand and seal at , this day of , A. D. 18— . J. S., J. P. (seal.) ) 728 DUTIES OF MAGISTRATES IN CRIMINAL CASES. [PART IV. Chap. 172. (E. 2.) Order for payment of the constable's expenses. To E.. "W"., esquire, treasurer of the county of - "Whereas "W". T., constable of , in the county of hath, in obedience to a certain warrant of J. S., esquire, a justice of the peace for the county of ■ taken and conveyed one A. B., charged before the said J. S. with having [^c, stating shortly the offence,'] from , in the said county of , to , in the said county of , a distance of miles, and produced the said A. B. before me, S. P., one of her majesty's justices of the peace in and for the county of , and delivered him into the custody of by my direction to answer to the said charge, and further to be dealt with according to law ; and whereas the said W. T. hath also delivered to me the said warrant together with the information in that be- half, and also the deposition of C. D. in the said warrant mentioned, and hath proved to me upon oath the hand- writing of the said J. S. subscribed to the same ; and where- as I have ascertained that the sum which ought to be paid to the said "W". T. for conveying the said A. B. from the said county of to the said county of and taking him before me is the sum of , that the reasonable expenses of the said "W". T. in returning will amount to the further sum of , making together the sum of : These are therefore to order you as such treasurer of the said county of , to pay unto the said "W". T. the said sum of , for which payment this order shall be your sufficient voucher and authority. Given under my hand, this day of A. D. 18—. S. P., J. P. (S. 1.) Recognizance of hail. Be it remembered that on the day of , A.D. 18—, A. B. of , [laborer'], L. M. of-- , [grocer]y and N". 0. of' , [butcher,] personally came before me, the undersigned, a justice of the peace for the said county, and severally acknowledged themselves to owe to our lady the queen the several sums following, that is to say : the said A. B. the sum of — ■ — , and the said L. M. and IT. 0. the sum of each, to be levied of their several goods and lands respectively, to the use of our said lady the queen, her heirs and successors, if he the said A. B. fail in the condition hereof. Taken and acknowledged the day and year first above mentioned, at — , before mei J» S., J. P. TITLE XLII.J DUTIES OF MAGISTRATES IN CRIMINAL CASES. 729 Condition in ordinary cases. Chap. 172. Th^. condition of this recognizance ia such, that whereas the said A. B. was this day charged before me, the justice therein mentioned, for that [^c. as in the warranf] ; if there- fore the said A. B. Avill appear at the next session of oyer and terminer and general jail delivery, \_or court of general sessions of the peace,'] to be holden in and for the county of , and there surrender himself into the custody of the keeper of the jail there, and plead to such indict- ment as may be found against him by the grand jury, in respect of such charge, and take his trial upon the same, and not depart the court without leave, then the said recognizance to be void. (S. 2.) Notice of the said recognizance to be given to the accused and his bail. Take notice that you A. B. of , are bound in the sum of- , and your sureties L. M. and N. 0. in the sum of- each, that you A. B. appear, [^c, as in the condition of the recognizance,'] and not depart the said court without leave ; and unless you the said A. B. personally appear and plead, and take your ti'ial accordingly, the recognizance entered into by you and your sureties shall be forthwith levied on you and them. Dated this day of -, A. D. 18 — . J. S., J. P. (8. 8.) Certificate of consent to bail by the committing justice endorsed on the commitment. I hereby certify that I consent to the within named A. B. being bailed by recognizance, himself in ■ and Uwo] sureties in each. J. S., J. P. (S. 4.) The like on a separate paper. "Whereas, A. B. was on the day of , A. D. 18 — , committed by me to the jail at , charged with [naming the offence shortly.] I hereby certify that I consent to the said A. B. being bailed by recognizance, himself in and [two] sureties in each. Dated this day of , A. D. 18—. J. S., J. P. 92 730 DUTIES OP MAGISTRATES IN CRIMINAL CASES. Chap. 172. (S. 5.) Warrant of deliverance on bail being given for apriso7ier already committed. To the keeper of the jail at , in the county of ■ "Whereas, A. B. late of , [laborer,'] hath before me a justice of the peace for the said county, entered into his own recognizance, and found sufficient sureties for his ap- pearance at the next court of oyer and terminer and gene- ral jail delivery, [or court of general sessions of the peace,] to be holden in a;nd for the county of , to answer our sovereign lady the queen, for that [^c. as in the commitment,'] for which he was taken and committed to your said jail : these are therefore to command you, that if the said A. B. do remain in your custody in such jail for the said cause, and for no other, you shall forthwith suffer him to go at large. Given under my hand and seal at — , this — — day of , A. D. 18— . J. S., J. P. (seal.) (T. 1.) Warrant of commitment. To any constable of , and to the keeper of the jail at , in the county of '■ — : Whereas A. B. was this day charged before me J. S., a justice of the peace in and for the said county, on the oath of C. J), of , [farmer,] and others, for that [^c. stating shortly the offence :] These are therefore to command you the said constable to take the said A. B. and him safely convey to the said jail, and there deliver him to the keeper thereof, together with this warrant ; and I do hereby com- mand you the keeper of the said jail to receive the said A. B. into your custody in the said jail, and there safely keep him until delivered by due course of law. Given under my hand and seal, at -, this day of , A. D. 18—. J. S., J- P. (seal.) (T. 2.) Jailer's receipt to the constable for the prisoner, and justice's order thereon for payment of the constable's expenses in executing the commitment. I hereby certify that I have received from W. T., con- stable of , the body of A. B., together with a warrant under the hand and seal of J. S., esquire, a justice of the peace for the county of , and that the said A. B. was [sober, bruised, or as the ease may be] at the time he was so delivered into my custody. P. K., jailer. 781 APPENDIX ACTS CONTINUED IN FORCE, NOTWITHSTANDING, AND AFTER THE PUBLI- CATION OF THE CONSOLIDATED STATUTES. Chapter 8 of the Eevised Statutes, (second series <) OF SCRUTINIES. 1. When a scrutiny shall be persisted in, the sheriff shorirs duty shall attend at the appointed time and place with a clerk, persi'sted'in."^ and every candidate desiring to proceed in the scrutiny shall then, by himself or his agent, name a freeholder as sheriff's assistant. 2. The sheriff and his assistants shall then take an oath oath of, sheriff's J, „ ,, . „ assistant, in the loUowing iorm : "I, A. B., do swear that I will act impartially in the holding of this scrutiny." The oath to be administered to the sheriff by a justice of the peace, and to the assistants by the sheriff". 3. The clerk shall take an oath in the following form : cierk's oath. " I, A. B., do swear that I will faithfully perform my duty at this scrutiny." The oath to be administered by the sheriff. 4. The sheriff and assistants, after the oaths have been Appointment of administered, shall appoint a time and place for proceed- fOTsoratlny.r^ ing with the scrutiny ; the time not to be less than three days, nor more than seven days thereafter. 5. The sheriff" and his assistants and clerk shall, at the continuation of time and place appointed, proceed with the scrutiny, and ^°™'''°^' shall continue the same from day to day so long as any party shall tender service. 6. The sheriff and his assistants shall determine upon Evidence, how the reception or rejection of evidence, and shall have each Jlctedf one voice therein, and where equally divided, the sheriff" shall have an additional casting voice. 7. The clerk shall take down in writing and engross Dutyofcierk. the evidence received, and shall minute and keep Avith the testimony, papers received. 8. No vote shall be scrutinized which shall not have votes marked been marked objected on the sheriff's poll book. be''Ierutii5i'z''/d. 9. The circumstance of an investigation having been J°'fon|°]i|^;.jo° had on the ground of a voter having been polled in a Sheriff to re^ turn proceed 732 SCRUTINIES. [appendix. wrong district, or more than once, shall not prevent its being scrutinized on other grounds if marked objected. w^tSl^s'eT^ °^ 10. ISTo person shall be a witness touching his own vote. ™om'"^'' '"'''' 11- Witnesses shall be sworn by the sheriff. Of pate?tsoon- 12, Protests in writing may, at or before the close of den'ce"^'^'^' the scrutiuy, be filed on behalf of any candidate proceed- ing in the scrutiny in respect of the reception or rejection of evidence ; such protests to set out specifically the evidence received or rejected, and the reasons for the dissatisfaction with the decision in reference thereto. ^eriff may''' l^' ^^ ^^^ sheriff shall be unable personally to hold the hold scrutiny, scrutiny, the deputy sheriff, or other person specially deputed by the sheriff, shall hold the same in the manner, and with the rights, and subject to the provisions, as the sheriff if present. shaiTnorattend 14. If a sheriff's assistaut shall not attend throughout another to bo the scrutiuv, another freeholder nominated on behalf of appointed. - -.-.^'., _ ^ . nni i the candidate by whom the assistant shall have been chosen, shall be sworn, and act in his place in like manner. notatten?ano- 15. If the clerk shall, at any time, not attend, another point'^d''" "' sl'^'l ^6 appointed by the sheriff' in his place, and be sworn, and act in like manner, and have the same rights. 16. The sheriff shall return to the house of assembly ^^^^to*heas- the engrossed copy of evidence and proceedings held at the scrutiny, with a certificate annexed under his hand and the hand of his clerk, and also the original papers received at the scrutiny. soratiT^ ^""'^ ™ ^'^- '^^^ sheriff shall be entitled to receive two dollars for every day he shall be actually engaged in holding the scrutiny from every candidate proceeding therein. whom^i'jr ^^ 1^- The clerk shall be entitled to receive ten cents per folio for the original minutes, and five cents per folio for the copy for the assembly ; the amount to be paid in equal proportions by the candidates proceeding in the scrutiny. Htred''^t"o'eopie9 1^- ^very Candidate proceeding in the scrutiny shall be of minutes. entitled to receive from the clerk a fair copy of the minutes, upon paying therefor five cents per folio. J^t^"?i' 'i^ ™" 20. If a candidate who demanded the scrutiny shall, covering ex- ., ., .^ ' penses where after appointing his assistant, abandon the same, or, having doMd"'' ^ ™ gone through the scrutiny, shall not petition the house of assembly against the election, and enter into the requisite recognizance and proceed in the investigation, the opposing candidate at the scrutiny may, after demand made, recover from him, by action in the supreme court for money paid, the expenses incurred for sheriff's and clerk's fees at the scrutiny, and for the engrossing of papers and necessary attendance of witnesses thereat ; the expenses to be first taxed, and the just amount thereof determined on proof on affidavit, by a judge of the supreme court after reason- able notice to the opposite party, aecording to the rates established in the supreme covirt, APPENDIX.] SHERIFFS. 733 21. If a sheriff shall wilfully be guilty of a violation of ^S'^^'f'^? Sfs- this chapter, he shall forfeit eight hundred dollars. conduct. Chapter 40 of tlie Eevised Statutes, (second series,) OF SHERIFFS. 1. The chief justice, and a iudge of the supreme court Modecf seiet selected by him, or, in the absence of the chief justice, any Inf s™eri§s'° " two judges selected by the senior judge, together, in either teftJl-o fimmis- case, with two members of the executive council, shall «'''°- meet in Halifax during Michaelmas term in each year, and select three persons for sheriffs in each county, out of whom the governor in council shall prick one to serve for the ensuing year, who shall reside in his county, and who, upon giving security by bond as hereinafter mentioned, shall receive his commission and be invested with the powers of office. 2. A sheriff may receive his commission before his bond £°™'?if,^l°" is approved m case the late sheriff has misconducted him-' before bonds self, or any of his sureties have become insolvent, or in toYnrasesf' case of the decease of a sheriff; but such new sheriff must find approved security within one month, to commence from the date of the commission. 3. If any person appointed shall refuse to accept the j?'"®(f°"®^"J^' ofiice he shall forfeit two hundred dollars, and the gover- ofHce"*""^^ nor shall prick another from the list. 4. The name of a person serving the year previous bkf'^uniesa''''^'" in anv county may be again returned, unless a represen- objected to by ■ T • sessions tation by a majority of the justices in session against him be filed in the supreme court in Halifax before Michael- mas term. 5. If a sheriff" die whilst in office his deputy shall act prTvJjied*""* till another be appointed, and the sureties of the sheriff so against. dying shall be liable for such deputy as if the sheriff" were living. If there be no deputy the governor in council may commission a sheriff for the remainder of the year, who shall file secmity as other sheriffs. 6. Every sheriff" shall deposit in the provincial secre- Bonds, how tary's office a bond for the discharge of the duties of office, fegfstered. to be made to her majesty: himself in four thousand dollars, with two sureties each in two thousand dollars, and the bonds when approved shall be registered in the provincial secretary's office, on the oath of a subscribing witness. "Where bonds are lost, certified copies shall be receivable in evidence. 734 SHBKIFFS. [appendix. hpnLTVvo^i '^- Such bonds when received by the provincial secre- Ssafiowancl "' ^^^'-^^ ^^^^^^ forthwith be laid before the governor in council, who shall approve or disallow the same within twenty days. Any sheriff" whose bond has been disallowed and not giving a satisfactory bond after reasonable notice, may be re- moved by the governor in council, and the sheriff for the preceding year shall remain in office, his sureties remain- ing liable. If he be the same person he shall act under his former appointment, and his former sureties shall con- tinue until he find approved security or be removed from office. tillof°ur"«es, ^- '^^^ sureties shall be responsible for the performance and substitu- ' of the sherift"'s duty until the approval of new security. tion of others. „, y j.t '^'^ x T j.u ihey may at any tune pray the governor to reheve tnem, and if, upon being required, the sheriff shall fail to sub- stitute other approved sureties within one month, the governor in council shall remove him from office. Sheriff's oatii. 2. Bcforc entering upon his duty every sheriff shall subscribe the following oath : "I, A. B., do solemnly swear that I will truly serve the queen in the office of sheriff for the county of , and promote her majesty's profit in. all things which belong to my office, as far as I legally can. I will truly, to the best of my skill and judgment, execute the laws and statutes of the provice, and in all things will act uprightly in my office for the honor of the queen and the good of her subjects." £i'th/°'to'' re"- ^^- ^^ ^^y s^^i'^ff delay more than two months after his turn accounts year of office cxpircs to render an account on oath to the provincial secretary of all forfeitures and debts of the crown levied by him, with the names of parties paying, he shall forfeit eighty dollars to the use of the crown. shCTifTs'^bOTda ''■-'- "^^7 persou injured by any act or omission of a how brought. ' sheriff, may sue on his bond in the name of the queen, and be entitled to the proceeds with costs. The defendant shall be entitled to costs if judgment be given in his favor, but no action shall be brought upon the bond until judg- ment shall first have been recovered against the sheriff. Eit^d" m^ su^fs ' 12. In an action brought against a sheriff", j ailer, or other for escapes. officer for an escape under an execution in a civil suit, the jury shall not be bound to find for the whole amount for which the prisoner was committed, but they shall find a verdict for the plaintiff for such sum only as they shall think right and proper under all the circumstances of the case, unless it shall appear on the trial that the escape was connived at, or the officer guilty of gross negligence, and in no case shall they find for more than the amount for which the prisoner was committed. writ^3 jeturaed 13. Sheriff's shall return all writs to them directed, with with items :of the amouut of their fees thereon endorsed, and the several ^®^*" items thereof specifically set forth, otherwise the same APPENDIX.] HIGHWAY LABOR. 785 shall not he taxed or recoverable. Sherifts shall indorse upon every writ returned by them an account of their doings thereon, and when and how executed, and the amount collected on all writs of execution. 14. All actions against sherifis must be brought within Limitation of three years from the accruing thereof. Chapter 63 of tlie Eevised Statutes, (second series.) OF SURVEYORS OF HIGHWAYS AND HIGHWAY LABOR, EXCEPT IN HALIFAX. City of Halifax 1. The provisions of this chapter shall not extend to the excepted - ^_ A ^ throughouttnis city Ot Halifax. chapter. 2. The districts as now established for the performance Road districts ,., ^ ^ r»T ^^ establisned of statute labor on the roads are connrmed. confirmed. 3. The sessions may erect new districts, or alter the ^iterlf^'usJ limits of those established. established 4. Persons over sixteen and under sixlf^ years of age, Persons iiaisie being able to do a reasonable day's work for themselves, or *?atSte°iSor being freeholders able to pay the commutation, or hire the and the amount labor in this chapter prescribed, without injury to their families, and not being militarj persons, or holding commis- sions from her majesty in the military or civil department of the army, nor clergymen, nor ordained ministers, nor teachers of academies or grammar schools, nor licensed schoolmasters, shall annually perform upon the highways the number of days labor following, by themselves or suffi- cient substitutes to be approved by the surveyor of high- ways or commissioners of streets, and provided with the tools by him or them directed, viz. : Every person above twenty-one years and under sixty years of age being a householder and the owner or posses- sor of real or personal estate, and not being a hired servant, journeyman or day laborer, nor residing with his parents, shall perform six days labor. Every person above twenty-one years of age, being a hired servant, journeyman or day laborer, shall perform two days labor ; masters of vessels and hired seamen, not being freeholders to be considered as hired servants. Every person above twenty-one years of age residing with his parents shall perform three days labor. Every person above twenty-one, and under sixty years of age, not being a householder, hired servant, journeyman or day laborer, nor jesiding with his parents, shall perform four days labor. Every minor and apprentice, above sixteen and under twenty-one years of age, shall perform two days labor. 736 HIGHWAY LAB OK. [appendix. Labor of liorses and to-^rns. Oxen pasture Fine for neg- lecting to send teams, Ac. Persons above sixry years having teams required to send them. 1?ruck or wag gon to be sent if party own such. A day's worlc shall be eight Working hours. Lists, how made out. Persoiis, how and when sum. 5. In addition to the labor in the last section mentioned, every such person over twenty-one and under sixty years of age, owning working oxen, or saddle or draught horses or mules shall perform one day's labor for every working ox, and every saddle or draught horse, or mule ; but no person shall be liable to perform more than four days labor, on account of any n amber of oxen, horses, or mules by him owned. 6. Pei'sons usually owning working oxen, or a working ox, and pasturing the same, shall not be relieved from statute labor in respect of such ox or oxen, unless such ox or oxen shall have been out of their possession bona fide for two months previously to the time for performing such labor. 7. Every such person so owning any such working oxen, draught horses or mules, shall, when required by the sur- veyor or commissioners, send such oxen or ox or horses or mules, properly yoked and harnessed, to labor upon the highways under a penalty of seventy cents a day for every such pair of oxen, or ox, or horse or mule respectively, and for every pair of oxen and every horse or mule so sent to labor, or the penalty therefor paid, every such person shall be allowed one day's labor. 8. Every person above sixty years of age, being a house- holder and owning working oxen or draught horses or mules, shall, when notified, send to labor upon the roads a pair of oxen or ox, or one draught horse or mule, at the option of the surveyor or commissioners, properly har- nessed, for four days, or, at the option of the person, such pair of oxen or ox, or draught horse or mule, with a driver, for two days ; and every such person so notified who shall not send the same shall forfeit for every day's omission seventy cents for the pair of oxen or draught horse or mule, and one dollar and twenty cents for the pair of oxen or draught horse or mule with a driver, to be commuted or sued for and recovered in manner as hereinafter directed as respects claims for non-pei-formance of days labor. 9. When any person owning oxen or draught horses or mules, shall be so required to send any such oxen or horses or mules, such person shall also, if required by the surveyor or commissioners, send therewith a cart, truck, or waggon if he shall own one, which the surveyor or commissioners consider fit, and in case of neglect shall forfeit forty cents for every day. 10. A day, when mentioned in this chapter, shall mean eight working hours. 11. The surveyors and commissioners shall make out lists of persons liable to perform highway labor, whether by themselves or in respect of owning oxen, horses, oi' mules, and shall be responsible for the correctness thereof 12. The surveyors and commissioners shall cause to be summoned the persons contained in their lists to labor upoji APPENDIX.] HIGHWAY LABOK. 737 the highways at the most seasonaWe time, between the first ^^ rlpiiring"" day of June and the first day of September in every year, roads- seed time and harvest excepted, by giving them six days notice of the time and place where they are to be employed, and of the tools to be brought for such labor ; the notice to be given either by the surveyors or commissioners, or by any person by them authorized, and to be left verbally or in writing, with some person of the age of discretion, at the usual place of abode of the party ; and at the time and place appointed, the surveyors and commissioners shall attend and oversee the persons so summoned to labor in making and repairing the highways and bridges in the most useful manner during the number of da;ys required by this chapter for each person to labor, and' the surveyors and commissioners shall be excused from any other service upon the highways than that of overseeing the persons employed thereon. • 13. In the following counties instead of the time pre- y^g^^'x^epted, scribedl in the last section, the labor shall be performed and seasons ' within the times following in every year, viz. : in the conn- ^'^'^"^ ties of Yarmouth, Shelburne, Queen's, and Lunenburg, between the fifteenth day of May and the fifteenth day of September; in the county of Cape Breton between the first day of June and the fifteenth day of October, and in the county of Kichmond between the first day of May and the fifteenth day of October. 14. Every person liable to perform labor under this f^''^?'^^ p%!°°' chapter who has been duly notified, but who may have left turn. the district and shall be absent therefrom during the time appointed for the performance of his labor, and shall not have provided a sufficient substitute or paid the commuta- tion therefor as hereinafter prescribed, or shall not adduce satisfactory proof of his having performed or so commuted, or otherwise paid for his statute labor in some other dis- trict, shall, if he shall return to his usual place of abode within the year, pay sixty cents for every day's labor to which he was liable. 15. In case a highway shall become obstructed, or a obstruction of bridge broken down or carried away, or the road rendered &°^, from" nfor- impassabie by any unforseen cause except by the falling or ^'^^'^ ''^'^^^''^ drifting of snow, the surveyors of highways or commis- sioners of streets, under the direction of two justices of the peace, shall notify such persons within the district as maybe deemed necessary, to attend immediately either by themselves or with their teams as may be considered advisable to remove the obstructions or make such repairs upon the highway or bridge, as may be by the justices considered absolutely necessary to render the same pass- able ; and every person so attending and laboring shall be allowed for the labor by a reduction of the like number of days from the labor to be by him performed under this 93 788 HIQStVAT LABOK. [appendix. Commutation of labor. Fine for non- attendance. Relief to poor persons. Persons resi- ding on islands Sessions may order labor on particular roads. chapter either for that or the subsequent year, as the same may occur before or after the time limited for the per- formance of highway labor in the district, in the same manner and to the same extent as if the labor had been performed at the usual time ; and every person duly notified to attend and labor under this section who shall neglect so to do, shall be liable to the same forfeitures as if he had neglected to attend and labor at the regular time, such forfeiture for each day, when paid, to reckon for one day's labor of such person under this chapter. 16. If any person liable to perform labor hereunder shall prefer paying money to doing the labor, he may at or before the day on which he shall be notified to attend and labor, pay to the surveyor or commissioners a commuta- tion for the whole labor to be by him performed, but not for any part thereof, at the rate of sixty cents for every day's labor, to which he may be liable for the current year; and if any person so ofl:ering commutation shall be sued for not performing his labor, on proof of the'tender of the commutation, and on the same being paid at or before the trial the plaintiflE" shall be non-suited ; and the commutation for the labor of an ox, shall be half that of a pair of oxen. 17. Every person duly notified who shall not labor agreeably to the notice, or tender the commutation there- fore as in the last section directed, shall forfeit sixty cents for every day's labor to be by him performed. 18. Two justices of the peace for the county may, by a certificate under their hands, relieve any person from a portion of his labor hereunder, if they shall be satisfied from his circumstances and situation in life he is really entitled to such relief. 19. No person residing upon an island whereon there are any highways upon which the performance of labor under this chapter may be enforced, shall be obliged to work or furnish any labor hereunder upon the main land, or be liable to any penalty for not so doing, but every per- son so residing upon an island and liable to perform labor under this chapter, shall perform the same upon some highway or bridge on the island ; and where the island shall be connected with the main land by a causeway or bridge, such portion of the labor as may be required to keep the causeway or bridge in repair, or to rebuild the same, shall be performed thereon. 20. The sessions may grant permission in -wl-iting to persons to perform their labor upon such roads as they shall direct, and the faithful performance by such persons of the labor as directed by the sessions shall be neld to be the performance of their ordinary highway labor under this chapter, but they shall, within one week after the perform- ance of the labor, obtain from the surveyor or commis- APPENDIX.] HIGHWAT LABOR. 739 sioners for the district, who, if the labor has been faithfully- performed, are hereby required to grant the same, a certificate of the due performance thereof; which permis- sion and certificate shall be a a bar to any action brought against any such person for non-performance of his ordinary highway labor under this chapter. 21. No surveyor shall alter any highway without the Hifhwiiys not .n, •,• n ,^ i..i i 1,1 1 to be altered consent oi two justices or the peace lor tne county, although without the the owner of the laud required for the alteration may assent j'usaoes """^^ thereto. 22. The surveyors and commissioners shall, as often as wintet labor. they shall deem necessary during the winter, order the inhabitants to work with their shovels, horses, oxen and sleds upon the highways, in order that the same, may be rendered passable, and every inhabitant not complying with the order shall, for every omission, forfeit one dollar ; but no person shall be obliged to furnish more than one days' labor of himself and team for any one fall of snow,' or work in any case when the fall or drift of snow shall not exceed twelve inches in depth. 23. Every surveyor shall, annually, on or before the Returns of sur; first day of the sessions which shall happen next after the made,' time herein limited for the performance of highway labor, make a true and faithful return in writing, under his hand, to the clerk of the peace, of the labor performed under his directions, designating the names of the persons and the labor performed by each, and shewing the commutations and fines by him received and the expenditure thereof, and the amount of monies then in his hands, and which latter he shall at the same time pay over to the clerk of the peace, to be expended under the direction of the sessions upon the roads. 24. Two justices of the peace for the county, on a state- Eemission of ment under oath (see appendix A) of persons applying for ^'^'"'^ '^''°''- remission of statute labor, may, by a certificate endorsed on such statement, (see appendix B) remit such part of the statute labor as, in their opinion, the applicant may be entitled to ; and such statement so endorsed, shall be re- turned by the surveyor to the clerk of the peace and be by him laid before the sessions. 25. Absent persons shall be notified after the return Notification of required by section fourteen. _ absent persons. 26. Each surveyor of highways, after six days attend- surveyors of; ance, shall be entitled to retain eighty cents per day out of mfnt'or' ''*''" any statute labor money he may have in his hands, or be credited therefor the following year. 27. Each surveyor who shall, by neglect or misconduct, loss of statute cause the loss of any statute labor, shall be liable to pay n*g"ect^pe'ifaW double the amount of such statute labor, to be recovered f""-- as debts of that amount are now recoverable ; such amount to be proceeded for within two years, and when recovered 740 Recovery of fines incurred tiy miuors. Fines, how re- covered andap propriated. HIGHWAY LABOR. [appendix. to be applied as follows : — one-half for the roads within the county or district, and one-half to the prosecutor. 28. All fines and forfeitures incurred by minors under this chapter may be recovered from the parents, masters, or guardians of such minors, with whom such minors reside, or who have a right to receive their wages, in the manner provided in the next section. 29. Forfeitures, except under the fourth and fifth sec- tions of this chapter, shall be sued for and recovered by the surveyor or commissioners by their name of office, as sur- veyor of highways or commissioners of streets for the place for which they have been appointed, or in the individual names of them, or any of them, or by and in the name of any person who will sue therefor, and in any case in the same manner and with the like costs as if they were private debts ; and, when recovered, shall be applied by the sur- veyor or commissioners to the repair of the highways. APPENDI-X. I, A. B., do swear that I am of the age of years, l_here insert with or luithput a family,'] am sick or infirm — own real estate of the value of , and personal estate of the value of . So help me God. B. We, , and , justices of the peace for , hereby authorize the remittal of '■ — days statute labor to the within named . Term saddle or draught horses defined. Form of return. Monies how expended. Chapter 40 of Acts of 1860. I an act to amend chapter 63 of the revised statures, (second series.) 1. The term " saddle or draught horses," mentioned in the fifth section of the chapter hereby amended, shall include all descriptions of horses of five years old and upwards. 2. Keturns of statute labor shall be in such form as shall be prescribed by the sessions in each county. 3. All monies collected by surveyors of highways and commissioners of streets, shall be expended by tender and contract, or by public auction, after three days notice given APPENDIX.] INTEREST. 741 'in at least two of the most public places in tlie district ; unless in the opinion of the surveyor or commissioner, it would be more advantageous to the public that such ex- penditure should be by days work. And in cases of expenditure by days work the surveyor or commissioner shall make oath to their accounts as in cases of the expen- diture of government road money. 4. Every person above twenty-one years of age residing Freeholder of with his parents and being a freeholder, shall perform six w!tf,'parS,to days labor. work six days. 5. The commutation money in section sixteen of the commutation chapter hereby amended, shall be increased to seventy ™d™^^ '""'■eas- cents for each days work. 6. Relief shall only be afforded under the eighteenth Reiiefunder ,• i? J.1 1 J 1 1 T 1 ■ ,1 . 18th section to section ot the chapter hereby amended, in case three jus- be afforded un- tices shall concur in granting the certificate required by orthree'"jus-° that section. "'='==• Chapter 82 of the Eevised Statutes, (second series.) OF INTEREST. 1. 1^0 person upon any contract shall take, directly or interest to be indirectly, for the loan of monies or goods, above the rate tracfifr^eservi°n"g of six per cent per annum. All contracts whereby a be^voYdyanV" greater rate of interest is reserved shall be void; and ^^™j<^j.|yg'' ''°'^- all persons taking or receiving upon any contract or secu- value. rity a greater rate, shall forfeit treble the value of the monies or goods in such contract or security contracted for or secured. 2. Any person may, nevertheless, contract for the loan contracts re- or hire of grain or live stock, upon halves or otherwise, orui"^ stock" upon the lender taking upon himself all risk of such stock ; excepted, but if it shall appear that the same, or any part thereof, perished or was lost through the wilful neglect of the bor- rower, he shall make good to the lender the full value thereof. 3. The foregoing provisions shall not extend to any Hypothecation hypothecation or agreement in writing entered into for cep'tlcf.'^'^ ''^' money advanced upon the bottom of a ship or vessel, her cargo or freight. 4. Upon all debts or sums certain paj^able at a certain interestmayba time, or otherwise, the jury, and the courtwhere there is no tiiincaies"^'' jury, on the trial of any issue or inquisition of damages, ^^ent.°^^"^' may, if they shall think fit, allow interest from the time when such debts, or sums certain, were payable, if such debts or sums be payable by virtue of some written instru- 742 EEGISTRY QV DEEDS. [appendix. Damages in the nature of inter- est may be al- lowed in certain actions. Limitations of action lor taking illegal interest. ment at a certain time, or if payable otherwise, then from the time when demand of payment shall have been made in writing, such demand giving notice to the debtor that interest will be claimed from the date thereof. 5. The jury on the trial of any issue, or on any inquisi- tion of damages, may, if they shall think fit, give damages in the nature of interest above the value of the goods at the time of the conversion or seizure, in all actions of tro- ver or trespass de bonis asporiaiis, and above the money re- coverable in all actions on policies of insurance. 6. No prosecution for taking illegal interest shall be commenced but within twelve months from the time the offence was committed. Chapter 113 of the Eevised Statues, (second series,) OF THE REGISTRY OF DEEDS AND INCUMBRANCES AFFECTING LANDS. Registrars of deeds, how ap- pointed; depu- ties how ap- pointed in cer- tain cases. Fire-proof safes to be provided. Provisions for safe keeping, &c., of books of registry. If no assess- ment, justices to amerce. Bonds to be given. 1. The governor in council may appoint a registrar of deeds for everj' county in the province, and for every dis- trict in which such appointments are now made. In case of the contemplated absence from the county of the regis- trar, or in case of his illness, he may, with the approbation of the governor and council, appoint a deputy, who may perform all the duties of the registrar during such absence or illness, and for all his acts the registrar and his sureties shall be responsible. 2. Fire proof safes shall be provided in the several counties and districts for the preservation of the records, books, and papers of the registry. 3. The grand jury and sessions shall provide for the custody and safe keeping of the books of registry, and see that they, with the indices, are placed and kept in good and efficient condition ; and shall assess upon the county, with the county rates, such sums as may be necessary from time to time in the premises. 4. In case the grand jury shall not comply with the foregoing section, the justices in session may amerce the counties respectively, for the necessary amount, and may direct the mode of its application. 5. No registrar shall enter upon the duties of his office until he shall have given bond to her majestj', with such sureties, and to such amount, and in such form as the governor in council may direct, for the faithful performance of the duties of his office, and the indemnifying of all parties who may be injured by his default or misconduct, nor until APPENDIX.] REGISTRY OF DEEDS. 743 he shall have satisfied the governor in council that he has provided a suitable place for the custody of all deeds, papers, and books of registry, which may come to his charge or keeping. 6. Every registrar shall furnish well bound books, of a ?°°'" °^ ''«si3- T ■ 3 T T !• ^ 1 • . , ' . - try ; now pro- Kind to be approved ot by the governor m council, as suit- ^}ded; their aj)le for the registry of deeds and incumbrances affecting uty. "" ''"^" lands, and in which books such incumbrances and deeds shall be registered. 7. A double index to the books of registry shall be made ©oubie indexes and kept by every registrar, including, in case of deeds, the registry to "e" names of all the grantors and grantees, and in case of judg- '^®''*' ments and attachments, the names of all the plaintiffs and defendants. 8. A double index shall be made and kept in like man- o°books"of en^ ner by every registrar, of all deeds proved and lodged in try to be kept, his office, and of all dockets of judgments and attachments lodged therein ; in which every deed shall be entered so soon as it is proved and lodged, and every docket of judg- ment or attachment when lodged. 9. All deeds, judgments, and attachments affecting Deeds, io. to bo lands shall be registered in the office of the county or theTands uef'^* district in which the lands lie. 10. All deeds shall be copied into the books of registry, Deeds to be so as to be, as near as possible, transcripts of the original; betanl^rfpt^ and copies of any plans or schedules annexed shall like- '^l™^ \°n'thl°" wise be entered in the books. ^°°^^^- 11. Deeds within the province may be proved, first, Deeds, h9w upon the oath of one of the subscribing witnesses to the thrprovinee? due execution thereof by the parties executing the same ; or, secondly, upon the personal acknowledgment by the parties, under oath, of the due execution thereof. 12. Such oaths may be administered by the registrar of oaths adminis- the county or district^ and shall be so certified upon the l^l^t, Mgel' or deed: or they may be administered by a judge of the J"^"''®^ °f *» ' */ •i'j?j_i J o Q peace ; certin- supreme court, or a justice oi the peace, or by any other cate to shew registrar, who shall sign a certificate thereof, declaring the * ^ *'^' date of the attestion on the deed, and the same shall be registered thereupon along with such certificate. 13. In case all the subscribing witnesses to the execu- needs how tion of a deed by all or any of the parties thereto shall be KeHWn"^ dead or absent from the province, the registrar shall ^'j'^^'^fnT ''^^^ register the deed upon sufficient proof of such death or absence, and of the hand writing of any one of the sub- scribing witnesses thereto, to be made before him or any other registrar, or a judge of the supreme court, upon oath, such oath to be endorsed upon the deed or annexed thereto, and registered therewith. 14. Deeds may be proved out of the province, as well Deeds how pro- in foreign countries as in the British dominions, by the oath proTince°" of a subscribing witness, or the acknowledgment of the 744 EEGISTRT OF DEEDS. [APPENDIX. parties under oath, as in the eleventh section ; such oaths to be administered by a judge of any court of record, by the mayor of any city, by a justice of the peace, or by a notary public, residing respectively at or near the place -where the deed is proved; and the attestation, with the date, to be certified under the seal of a court of record, or of a city, or under the hand and seal of a notary public ; and where a deed is proved in a foreign country the oath may be administered by, and the attestation, with the date, certi- fied under the hand and seal of, any public minister, am- bassador or consul from the port of Great Britain, or vice consul residing at or near the place where the deed is proved. proredtnalSlf- 15. Where a deed shall have been duly proved and hd/?"f.Ftere5 Ic^Jge^) Or the docket of a judgment, or the copy of a w^it from the time of attachment with the description and appraisement, duly emg ge . jg^^gg^j ^^ above, for registry, the time when the same shall have been so proved or lodged shall be accounted the date of the registry of such deed, judgment or attachment, respectively ; and thesame'shall be registered in the same order in which they were so lodged or proved. ^ecutedunde? 16. The registry of a deed executed by virtue of a to^nCT "^ "he"'" power of attorney shall not be valid unless such power or power'must be a deed subsequcntlv Confirming; thc authoritvsriven thereby, shall be registered in the office of the county or district where the lands lie. 4|^bp<^namay ]^7_ Process of subpceua may be issued out of the compel the at- supreme court as in ordinary cases, and with the necessary witness on the Variation in formr, to compel the attendance of any witness §led"for°PTOof' to, Or the productiou of, any deed for proof thereof, that and registry ^j^q same be registered; and the court or a judge shall have the like power to punish any disobedience to such subpoena in the same manner and to the same extent as in other cases ; but no witness shall be compelled to produce under such subpoena any deed which he would not be com- pelled to produce on a trial. certiiicateofre ig. The Certificate of registry endorsed on any deed, reoeired:in dockct of judgment, Or attachment, and signed by the evidence. registrar, shall be taken and allowed in all courts as evi- dence of the registry. pdoruy°from^ 19- Dccds or mortgages of lands duly executed but not date of registry, registered, shall be void against any subsequent purchaser, or mortgagee for valuable consideration, who shall first register his deed or mortgage of such lands. S!fo?b6*°'' 20. 1^0 mortgage, judgment, or other incumbrance tacked. affecting lands, shall have any priority or efifect by reason of being held by or vested in the same person with another mortgage or incumbrance of prior date and registry. feil^lT ^°'' 21. Mortgages shall no longer be discharged by certifi- cate of release, but the release itself shalf refer im the registry of the mortgage, and need not contain the descrip^ APPENDIX.] REGISTRY OF DEEDS. 745 tion of the premises at fnll iength ; and tlie same shall be recorded like other deeds, and a marginal note thereof shall be made by the registrar, without further fee, on the book of registry of the mortgage referring to the registry of the release. 22. Judgments duly recovered and docketed shall bind J?''|]"''JJ'.*f^° the lands of the party against whom the judgment shall da'te of registry. have passed only from and after the registry thereof in the county or district wherein the lands are situate ; and deeds or mortgages of such lands, duly executed, but not regis- tered, shall be void against the judgment creditor, who shall first register his judgment. 23. The docket of a judgment to be registei'ed shall j^dgmenraeir contain the names of the parties, the amount recovered, i^ontentg liow the signature of the judge, and the time of signing ; and a copy of such docket, certified under the seal of the court and the hand of the prothonotary where the judgment was recovered, being lodged for registry, shall be entered in the books without further proof. 24. Lands levied upon under writs of attachment shall writs of attach- be bound thereby only from the time that true copies of how bound the writ and of the description and appraisement of the re|ist'e^ed'?°" lands, certified by the sheriff or his deputy, under his hand, shall be lodged for registry in the county or district where the lands lie ; which copy shall be recorded without further proof, and shall continue to bind the lands until thirty days after final judgment signed in the cause. 25. Judgments and attachments so entered shall be dis- '^J'/'sm^"*^,,*"'^ charged by an entry on the margin of the registry thereof, how discharged to be made by the registrar upon the filing of a release duly acknowledged or proved by a subscribing witness to have been executed by the parties by whom the judgment was obtained, or of a certificate under the seal of the court and the hand of the prothonotary that the judgment has been satisfied, or the suit in which the attachment was issued, discontinued or set aside. 26. Leases of land for a term exceeding three years shall ^^^^^\J°^ , . 1 f more than be void against any subsequent purchaser, mortgagee for three years to valuable consideration, or judgment creditor, unless such andr?eason- leases shall have been previously registered, and a reason- reslrTCd.'°''° able rent reserved in good faith therein. 27. Grants of land, made after the thirty-first day of ^f^f^^^ tyrants March, 1854, shall not be recorded in the office of the pro- Recorded in re- vincial secretary; but instead thereof, shall be recorded in s'=*''y°f'*®® ^• the office of registry of deeds of the county in which the lands lie. 28. The duplicate originals of grants kept in the office Duplicate ongi- of the surveyor general, signed by the governor, shall to be°klpun hereafter be signed also by the provincial secretary. rai^s office^^"^' 29. Books similar to those now in use in the secretary's separate books office for the registry of grants, shall be furnished to the fSrmsheltor^ 94 746 RBGISTRT OF DEEDS. [appendix. gistrars; and grants in dupli- cate to be for- warded. Fees. Begistrar at Halifax may keep as many contemporane- ous boolis as may be neces- sary. Plans of parti- tion of town- ships. Eegistry |books to be kep't in safes, except in Halifax. Penalty. various registrars of deeds throughout the province ; and grants vi^hen completed, shall be transmitted, with a dupli- cate plan, by the surveyor general, to the registrars of deeds, who shall record the same in the books so furnished, and attach thereto the duplicate plan, and shall keep an index to the records thereof in the name of each grantee,- and shall be entitled to receive from the general revenues a fee of fifty cents for each grant so recorded, payable on or after the thirty-first day of December in each year, on their accounts being duly attested to and audited by the surveyor general. 30. In the county of Halifax the registrar of deeds shall keep as many contemporaneous registry books as he may find necessary to enable him to register, without delay, the deeds and certificates presented for registration ; and he shall not be obliged to record in one book the deeds and certificates in the order in which they are presented. 31. The plans of partition of any township, which, on the execution of any writ of partition, were returned to the otiice of the prothonotary at Halifax, shall be trans- mitted to the registrar of deeds of the "Counties in which such townships are situate ; such plans shall be certified by the prothonotary at Halifax to be the original plans so returned. 32. In all the counties except Halifax the registry books shall be kept at all times, except when in actual use, or when required in any court for the purposes of justice, in the safes provided for the office, and any registrar of deeds who shall offend against this provision, shall incur a penalty of eighty dollars for each ofl'ence, and on a second convic- tion shall be ever after incapable of holding the office of registrar of deeds in any county or district of this province. Chapter 9 of the Acts of 1859. AN ACT TO FACILITATE THE TAKING OF EVIDENCE AND THE REGISTRT OF DEEDS. Deeds maybe] registered on declaration made in Great Brilain and Ire- land and duly attested. Declarations made under Imperial act 5 1. Deeds may be registered on declaration and acknow- ledgments heretofore made or hereafter to be made in Great Britain and Ireland before the judge of a court of record, or the mayor or recorder of a city or borough, with the date of the declaration or acknowledgement certified and expressed, attested under the seal of a court of record ■or of a city or borough. 2. Declarations now or hereafter made in conformity with, and which shall have legal effect and operation in APPENDIX.] TITLE BY DESCENT. 747 the place where the same may be made, under and by ^""^ L^^*i^ • in i n -i • -1 T T-1 cap. D^ snail Virtue or an act oi the imperial parnament, passed in the have same fifth and sixth years of the reign of his late majesty king thIntioIte/Sn. William the fourth, chapter sixty-two, relating to the abo- ^^^ °^*^' lition of oaths in certain cases, and of any act in amend- ment thereof, shall have the same operation and eflect in this province as if authenticated under oath before the same officers before whom the declaration had been made, and if these officers had been authorized to administer such oath. 3, Acts, deeds, evidence, acknowledgments, and decla- ^°^'^ fn Gl-ea*"' rations, now or hereafter done, made, taken, or proved in Britain and ire- Great Britain or Ireland, or any of her majesty's posses- tLh posses- sions, with those forms of authentication and proof which tSioafed"' shall be the legal mode of proof and authentication in hkTe'Lmfl^'" those places, shall have the same force and effect in this feet as if sworn province as if sworn to before the same persons and officers by and before whom the proof and authentication may be made, and as if those persons or officers had power to administer an oath. Oliapter 115 of the Kevised Statutes, (second series,) OF THE DESCENT OF REAL AND PERSONAL ESTATE. 1. "Where any person shall die entitled to any real Rule of descent estate in fee simple or for the life of another, not having reaTestltT devised the same, it shall descend to his children in equal Svel issuef"^ shares, and in case of the decease of any of his children, to such as shall legally represent them, such representatives to take the share of the deceased parent in equal propor- tions, and if there be no child of the intestate living at the time of his death, to his other lineal descendants ; and if all the descendants shall be in the same degree of kindred they shall share the estate equally, otherwise they shall take according to the right of representation. 2. If the deceased shall leave no issue, one-half of his i^i^e^^* issue. real estate shall go to his father, and the other half to his widow in lieu of dower, and if there be no widow the whole shall go to his father. 3. "If he shall leave no issue, nor father, one-half of his °^^)5*!j" o^^<,%ia. real estate shall go to the widow, and the other half shall teraikmdred. be distributed in equal shares to his mother, brothers and sisters, and the children of any deceased brother or sister by right of representation ; and if there be no widow the whole shall go to his mother, brothers, and sisters, and the children of any deceased brother or sister by right of repre- boa. 748 TITLE BT DESCENT. [APPENDIX. sentation ; and where the intestate shall leave no issue, and no widow, father, mother, brother or sister, nor the child- , ren of any brother or sister, his estate shall go in equal shares to his next of kin in equal degree, excepting that where there are two or more collateral kindred in equal degree but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor who is more remote, but in no case shall representatives be admitted among collaterals after brother's and sister's children. Ruio in case of 4 jf anv Dcrsou shall die leaving several children, or ceased minor leavmg ouc child and the issue oi one or more others, and fng brothers'" auj sucli survivlng child shall die under age, and not hav- Hieii'Yssue?'^ iiig been married, all the estate that came to the deceased child by inheritance from such deceased parent shall descend in equal shares to the other children of the same parent, and to the issue of any such other children who shall have died, by right of representation. Method of divi- 5 jf at the death of such child who shall die under ag-e, dins property ^ .^^ ^ ni. under lastseo- and not havmg been married, all the other children of his parent shall also be dead, and any of theiii shall have left- issue, the estate that came to such child by inheritance from his parent shall descend to all the issue of the other child- ren of the same parent ; and if all the issue are in the same degree of kindred to such child they shall have his estate equally, otherwise they shall take according to the right of representation. Mode of com- g. The degrees of kindred sliall be computcd accordinff of lundred" ' to the rules of the civil law, and the kindred of the half blood shall inherit equally with those of the whole blood in the same degree. Where intes- 7. Jf tbc intestate shall have no kindred, his estate shall tate hath no . . , , ' kindred, the go tO tbC WldOW tO hCr OWn USC. herit" *■ " '°" 8. The interest of a party in lands held in trust for him The interest of jn fee simple shall descend and shall be chargeable with lanirheidln his dcbts in the same manner as if he had died seized of trust charge- -i -i -i able with debts. SUCll laUdS. Euies for distri- 9. The pcrsonal estate of any person who shall die with- sonallstaterjf out haviog bequeathed the same shall be distributed as intestate.. foUowS : The widow shall be allowed all her paraphernalia, articles of apparel or ornament, according to the degree and estate of her husband, the apparel of the minor children, and also such provisions and other articles as shall be necessary for the reasonable sustenance of herself and the family under her care for the period of ninety days after, the death of her husband ; and, in addition, such provisions and other necessaries for the use of herself and family, as shall be allowed and ordered by the judge of probate, and such allowance shall be made, as well when the widow waives the provision made for her io the will of her husband as when he dies intestate, APPENDIX.] TITLE BY DESCENT. 749 The -wearing apparel of the deceased, not exceeding forty dollars in value, shall be distributed at the discretion of the executor or administrator among the family of the deceased. ' The remaining personal estate, after payment of the debts of the deceased, the charges of his funeral, and the necessary medical and other attendance upon him in his last illness, and the expenses attendant upon the settlement of the estate, shall be distributed, one-half to the widow, if any, and the residue among the persons who would be entitled to the real estate, and if there be no widow, then the whole among such persons. 10. Any child born after the death of the father, there PoBtinimous being no provision made in his will for such child, shall provided fbr" have the like interest in the real and personal estate of his has''ma*dfnQ°' father as if he had died intestate, and all the devisees and p^o^'sion. legatees in the will shall abate proportionably their respec- tive devises and bequests, the share of the posthumous child to be set out and assigned by the court of probate so as to affect as little as possible the disposition of the pro- perty made by the testator. 11. Any real or personal estate given by the intestate Advancement T n-iT Ti-inini ^°^ treated on as an advancement to any child or grandchild, shall be division and considered as a portion of the estate of the intestate, so far as regards the division and distribution of the estate of the deceased, and shall be taken by such child or grand- child towards his share of the intestate's estate. 12. If such advancement shall exceed the share of the same subject. child or grandchild, so advanced, he shall be excluded from any further portion in the division and distribution of the estate, but he shall not be required to refund any of such advancement ; and if the amount so received shall be less than his share, he shall be entitled to as much more as will give him his full share of the estate of the deceased. 13. If the advancement be in real estate, the value Advancement thereof shall, for the purposes of the preceding section, be ifowtobeoo^n- considered as part of the real estate to be divided ; and if gSd.™'' ^^' in either case it shall exceed the share of real or of per- sonal estate respectively that would have come to the child or grandchild, so advanced, he shall not refund any part of it, but shall receive so much less out of the other part of the estate as will make his whole share equal to those of the other heirs who are in the same degree with him. 14. All gifts and grants shall be deemed to have been OTants^shai° be made in advancement, if expressed in the gift or grant to ments'?^''°°^' be so made, or if charged in writing by the intestate as an advancement, or acknowledged in writing, or upon exami- nation before the judge of probate on oath as such, by the child or grandchild, and not otherwise. 15. If the value of the estate so advanced shall be vaius if stated 750 JOINT STOCK COMPANIES. [appendix. by testator to ba coucluiire Advancement »s amone grandchildren. Tenancy by the curtesey and in dower not af- fected hereby. Lands held in dower, how di- vided. Estates not devised to be distributed as intestate. expressed in the conveyance, or in the charge or valuation thereof made by the intestate, it shall be considered as of that value in the division and distribution of the estate, otherwise it shall be estimated according to its value when given. 16. If any child or grandchild so advanced shall die before the intestate, leaving issue, the advancement shall be taken into consideration in the division and distribu- tion of the estate, and the amount thereof shall be allowed accordingly by the representatives of the child or grand- child so advanced as so much received towards their share of the estate, in like manner as if the advancement had been made directly to them. 17. Nothing in this chapter contained shall aiFect the title of a husband as tenant by the curtesy nor that of a widow as tenant in dower. 18. Lands held as dower by the widow shall, after her decease, be divided as hereinbefore directed. Lands set off as dower prior to the act of fifth Victoria, chapter twenty-two, shall after the decease of the widow, be divided as before the passing of that act. 19. All such estate, real or personal, as is not devised in a will, shall be distributed as if the testator had died intestate. Chapter 2 of the Acts of 1862. AN ACT FOR THE INCOEPORATION AND WINDING UP OF JOINT STOCK COMPANIES. Declaration required on for- mation of com- pany b;^ five or more — its con- tents, &c. 1. Any five or more persons who desire to form a joint stock company, and to become incorporated, may make and sign a declaration thereof, in writing, according to the form in schedule A., in which they shall state the names and residences of the subscribers, the number and amount of shares of which the capital stock is to consist, the num- ber of shares taken by each subscriber, the corporate name of the company, not being that of any previously existing company, the object for which the same is formed, the name of the town or place where the business of the com- pany is to be carried on, and the amount of capital to be paid up before the company shall go into operation ; but no company shall be thus incorporated for banking, in- surance, or ordinary mercantile and commercial business; nor shall any company incorporated under this act engage therein. Declaration to 2. Such declaration shall be signed in duplicate by the Restrictions. APPENDIX.] JOINT STOCK COMPANIES. 751 parties desirous of being incorporated, by tbemselves or ^h°wsi'ni'd'° an agent or agents thereunto duly authorized in writing ; and in such case the power of attorney shall, if executed out of the province, be duly authenticated by a notarial - certificate ; and such power of attorney and certificate shall be attached to the declaration; and the declaration shall in all cases be, and purport to be, executed in the presence of a subscribing witness to each signature ; and one of the duplicates, with the original power of attorney attached, shall be filed in the oflice of the registrar of deeds for the county or district wherein the proposed place To be filed iii of business is situate ; and the other duplicate, with a copy tSro? dVedf^' of such power of attorney, shall be filed in the ofiice of seol'Sy""*^ the provincial secretary at Halifax. 3. When the formalities prescribed in the foregoing ^uh°f™?"ofng sections have been complied with, the persons signing the sections, pat- said declaration, their associates, and successors, shall be body oorpomte. a body corporate, by the name therein mentioned, to the same extent as companies incorporated by act of the legis- lature, and be subject to chapter eighty-seven of the revised statutes, "of general provisions respecting corporations," except as herein provided. 4. Before any such company shall so into operation When to go into twenty-five per cent, of the svibscribed capital shall be actually paid up in cash ; and a certificate thereof, verified by oath of the president and treasurer of the company, shall be filed in the office of the registrar of deeds for the county. 5. The term of such company's existence shall not ex- Term of eiis- tend beyond the year A. D. 1875. 6. Every shareholder shall be liable in his person and Liability of ,y,i- ii-j. X ij. shareholders. separate estate during membership, to an amount equal to double the stock held by him, deducting therefrom the amount actually paid to the company on such stock, unless he shall have made himself liable for a greater amount by becoming surety for the debts of the company. But no ^jabnit after shareholder, who may have transferred his interest in the transfer of stock of any such company, shall cease to be liable for any ^'^''"■®^- contracts of the company entered into before the filing of the certificate of transfer, provided by the sixteenth section of this act, so as any action in respect of such liability shall be brought within six months after the filing of such certificate. 7. If the directors declare and pay any dividend when if dividend .-, . . , , 1 1 j_i ■ paid out of ca- the company is insolvent, or whereby the company is ren- pitai, directors dered insolvent, or which would diminish the amount of ''""^^ ^"^ <^'='"'' its capital stock, they shall be jointly and severally person- ally liable for all the debts of the company then existing, and for all debts subsequently created during their tenure of office ; but any director who objects to the payment of nireotprs fiiag such dividend, iuay, before such payment, file with the exempt."^ 752 JOINT STOCK COMPANIES. [appendix. Meeting for in- creasing capi- tal stock — liow called, cio. Proceedings thereat. "twenty-five per cent to be paid In. New stock — how taken up; Contents of de- claration. I'o be in dilpli- Gate and filed. Not to be filed until half stock subscribed. Names of stock- holders to be entered in books properly. secretary of the company, and with the said registrar, a written statement of such objection, and shall be thereby exempt from such liability. 8. Whenever the whole capital stock has been taken up, and a majority of the directors of a company, by their votes, resolve and declare that the capital stock of such company is insufficient for the pui'poses thereof, they may call a gene- ral meeting of the stockholders of the company, giving at least thirty days notice of such meeting, by a written no- tice, signed by the secretary, and addressed to each of the shareholders of their representatives, and transmitted through the post office, and by advertisement thereof in a public newspaper, published nearest to the place where the company's affairs are transacted, and continued to be so published until the day of meeting. 9. At such meeting a majority of the stockholders hold- ing a majority of the shares in the company, may, by their votes given thereat, in person or by proxy, pass a resolu- tion authorizing the directors of the company to increase the capital stock thereof to such amount as they deem necessary for the purposes of the company, the amount whereof shall be expressed in such resolution; and there- upon the said directors may pass a bye-law for the purpose of increasing the capital stock to the amount mentioned in the resolution of tibe general meeting of stockholders as aforesaid, and for declaring the number of shares into which such capital stock shall be divided, and the time and manner of payment of the several calls to be made for the payment of such new stock, twenty-five per cent at least of which shall be actually paid up in cash. 10. Upon the passing of such bye-law all persons who desire to become holders of any share or shares of such new stock, may make and sign a declaration, in which shall be set forth : 11. The amount of such new stock ; the total amount of the company's capital stock, including new stock ; the number of shares of such new stock ; the total number of old and new shares of stock; and which declaration shall also contain a column wherein shall be set in figures op- posite .to the signature of each subscriber the number of shares for which he subscribes. 12. Such declaration shall be signed in duplicate, shall be certified and filed in the oflSce of the provincial secre- tary^ and in the district Or county registry of deeds office, in the manner mentioned in the second section of this act. 13. The declaration shall not be so filed or certified until at least one half of the new stock has been sub- scribed. 14. When the declaration has been so filed the hame of ev6ry stockholder contained therein shall forthwith be APPENDIX.] JOIM STOCK COMPANIES. 753 entered in the books of the company, as that of a stock- holder, with the date Of subscription and number of shares subscribed for ; and so long as any of the said stock re- Remainder of mains unsubscribed for any person desirous of becoming t^C^nllp^'' a stockholder may subscribe his name to the de«laration filed in the registry oflEice, for one or more of sach unsub- scribed shares ; and the name of such subscriber shall forthwith be entered into the books of the company in manner aforesaid. 15. Upon the performance of the several acts mentioned upon eompii- , ^ ■*^, . . - f 1 • 1 ance with act m tne next preceding section, and payment or the instal- new stoekhoia- ments as required by the tenth section, every such stock- ber°of the™or^" holder whose name has been subscribed to the declaration, pof'^fo^- shall immediately thereupon become a member of the corporation, and from thenceforth shall have and enjoy the same rights and privileges, and be subject to the same con- ditions, restrictions and liabilities, to which the original stockholders are thenceforth entitled or liable ; and such new shares of stock shall from thenceforth be subject to all the provisions of this act, relative to such companies, in the same manner as if they had formed apart of the stock originally subscribed. 16. The bye-laws of the company, and all the amend- SnJS' to 'be ments thereof, made therein from time to time, and the gfg*,'^®'' *°'' names of all future shareholders in the company, and the transfers of all shares, with the dates of such transfers, shall be certified in duplicate by the president under his hand, which certificate shall, within one month, be transmitted to the provincial secretary's office, and filed in the oflace of the registrar of deeds of the county or district ; which trans- coSfpieTeduntii fer shall not be complete until such certificate is filed. fi^^^^- 17. If three or more parties shall desire to be incorpo- qJirlTfor the^" rated for any lawful purpose or business, and shall make, formation of a execute, and file a declaration similar to that referred to in three or more, the first section, except that no reference need be made to the proposed capital, and shall state therein that they do not seek under such incorporation to become free from personal responsibility, such parties shall thereupon become a body corporate, and shall be entitled forthwith to go into operation ; but in that case the members thereof shall be personally liable for all debts and undertakings of the com- Liability. pany. 18. No company shall become incorporated under this company must act, or be entitled to the privileges thereof, unless it shall lon"within one go into operation within one year from the filing of the ^'^'^^' declaration first hereinbefore referred to. 19. Whenever it shall be made to appear to the supreme wiSd^up M°m-*° court or a judge, upon af&davit, by a shareholder that such PenJ^^hag"'" company is insolvent, and that shareholders representing suspended, or two-thirds of the paid up capital are desirous of winding ced business _ for a year, &c. 754 JOINT STOCK COMPANIES, [appendix. Court may ap- point^a recei- ver, And make ne- cessary orderSi Gas and water companies. Title of act. up the affairs of the company, or that the company has suspended business for a year, or has not commenced busi- ness within a year after the filing of the said declaration, or upon affidavit of a creditor of the company, that his debt is unpaid, that the company is insolvent, and that one month's notice of the application has been given to the secretary, an order may issue to appoint a receiver, as in ordinary cases of co-partnership, and thereupon the whole matter shall be referred to a master, with power to cite parties with books and papers to take evidence and report; and if it shall appear that the said company is insolvent, the said court or a judge may make calls upon the share- holders to the extent of their liability, for all sums needful for discharging the debts of the company, and the costs of winding it up, and may order payment thereof; and may, if deemed fit, order all suits pending against the company, at or after such application, to be stayed, and may order such a distribution of the funds of the company, and make all such further orders for winding up the company, as may appear just and right, and may dismiss such application with or without costs. 20. ISTo gas or water companies shall be incorporated under this act within the city of Halifax. 21. This act may be cited as — "The joint stock com- panies act of 1862." SCHEDULE. Be it remembered that on this- day of- — , A. D. 18 — , we the undersigned shareholders have agreed and resolved to form ourselves into a company, to be called " ," according to the provisions of chapter 87 of the revised statutes, and an act of the province, entitled " an act for the incorporation and winding up of joint stock companies," for the purpose of ; and we do hereby declare that the capital stock of said company shall be dollars, which may be increased from time to time, to be divided into shares, of the value of dollars each, and that twenty-five per cent, at least of such capital stock shall be actually paid up before the said com- pany shall go into operation. And we the undersigned stockholders do agree to take and accept the number of shares set by us opposite our respective signatures ; and we do hereby agree to pay the calls thereon, according to the requirements of the said act, and of any rules, regulations, or bye-laws of the said company, to be made or passed in that behalf. And we do hereby appoint to be the place for holding the annual and other meetings of the said company. APPENDIX.] ELECTIONS. 755 Name. Place of abode. Number of shares. Amount. Chapter 28 of Acts of 1863. AN ACT TO RSaULATE THE ELECTION OE MEMBERS TO SERVE IN THE GENERAL ASSEMBLY. 1. Every male subject of her majesty, by birth, or naturalization, being of the age of twenty-one years, and not disqualified by law, who shall have been assessed for the year for which the registry hereinafter provided is made up, in respect of real estate, to the value of one hundred and fifty dollars, or in respect of personal estate, or of personal and real estate together, 'to the value of three hundred dollars, shall be qualified to vote at elections of members to serve in the house of assembly, for the county, township, or electoral division in which he shall be so assessed. [Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 repealed by chapter 20 of acts of 1864.] 12. In cases within the eleventh section of this act, the clerk of the peace may, if necessary, summon and examine on oath any witnesses he may require to enable him to prove what portion of the names included in the roll belongs to the several polling districts to which the said roll extends, and the reasonable charges and expenses of said witnesses shall be a county charge. [Section 13 repealed by chapter 20 of acts of 1864.J 14. The general sessions at their first meeting, after the passing of this act, shall divide the county or district over which they have jurisdiction into so many sections, to be called "revisal sections," as they shall deem fit, including in each section not less than two nor more than five polling districts, and for each revisal section the grand jury shall annually nominate as revisers six persons, out of whom the justices shall select three, who shall be duly Qualification of voters. Sections 2 to 12 repealed. Witnesses may be summoned to ascertain limits, &c. Their expenses. Revisal sections how formed. Revisors, ap- pointment of &c. 756 ELECTIONS. [appendix. Revisal in the city of Halifax. Lists to be made and given to revisors. sworn to the impartial performance of their duty, in the form prescribed in schedule B to this act annexed. [Section 15 repealed by chapter 20 of acts of 1864.J 16. In the city of Halifax any three or more of the Aldermen to be appointed in each year, as other city offi- cers are appointed, shall annually revise the list of electors within the city qualified to vote at elections for the assem- bly, in the manner and at the times herein prescribed ; and such persona shall be duly sworn, as prescribed in the fourteenth section of this act. 17. The assessors of each assessment district shall, on or before the twentieth day of January in each year, deliver to the revisors a copy of the assessment roll for the polling districts within the revisal section ; and if for any cause any part of the inhabitants therein are exempt from tax- ation, the assessors shall either include their names in the same or make a separate list of such parties, so that the list shall contain the names of all persons possessed of real or personal estate, in the form following, and deliver it to the revisors : ^ Assessment roll for polling district No. Name. Real Estate of residents within county. Personal estate of residents within county. Real estate of non-residents Personal estate of non-residents. A B. C. D. E. F. G.H. $100 00 00 00 00 $0 00 100 00 00 00 $0 00 00 25 00 00 |0 00 00 00 00 Lists to "be pre- pared and pcst- ed. Notice there- with. 18. The revisors shall, before the first day of March in each year, select and prepare from the assessment roll alphabetical lists of the qualified electors of each polling district in the revisal sections, distinguishing the residents within the county from the non-residents, and affixing the place of the non-residents when known ; and shall, on or before the said first day of March in each year, post up a copy of the said list in three of the most public places in each polling district, with the following notice : " The revisors will meet at , on the second \if Sunday on the third] day of April next, at eleven o'clock, a. m., to revise the list of electors for each of the polling district numbers within the revisal district number ; and any person claiming to add to or strike ofi" a name from the list must give notice thereof in writing, with the cause of objection, to' either of us, on or before the APPENDIX.] ELECTIONS. 757 fifteenth day of March next, and also notify every person proposed to be struck off. Dated the day of , A. A. B.) Revisors. 19. The revisors shall, on or before the twentieth day aidedorst?uck of March in each year, post up in three of the most public off to be posted. places of each polling district, an alphabetical list of the persons proposed to be added or struck oft' respectively in each polling district, vpith a notice appended to each list to the effect following : "The revisors will on the second [if Sundai/ the jlAirc^] Notice thoro- day of April next, at , in the revisal section number ""^' , adjudicate upon the propriety of adding \_or striking off, as the case may be,'] the foregoing name to [orfivni] the list of qualified voters in district number . Dated the day of , A. D., 18 — . A. B.~| 0. D. > Revisors. E. F.j 20. The person who proposes to strike a name from the Notice to party list shall, on or before the fifteenth day of March, give ° ^^'^ ^ °' notice in writing to the party objected to, either personally or by leaving it at his last or usual place of abode, and shall prove on oath the giving the notice to the satisfaction of the revisors before they hear the objection. 21. At the time and place appointed the revisors shall Meeting of re- attend and correct the list, and shall with all convenient i'ng°/atf4c?'"'''' despatch make out for each polling district an alphabetical list of the electors thereof resident within the county, and of the non-resident electors, stating residence when known ; and on or before the tenth day of May in each year trans- mit the same to the clerk of the peace. They shall add-to or strike from the list the name of any person M^hose qualification or disqualification is satisfactorily proved to have existed at the date of the last assessment, provided notice of the claim has been given to a revisor on or before the fifteenth day of March ; and in case of disqualifica- tion, provided it be proved to the satisfaction of the revi- sors, that notice in writing has been given to the party objected to within the same period. 22. "When a firm is assessed in respect of property suf- Firms. ficient to give each member a qualification, the names of the several persons comprising such firm shall be inserted in the list ; but if the property be held by a body corporate no ^^odies corpo- one of the members thereof shall be entitled to vote, or be entered on the list of voters, in respect of said property. 23. The revisors, when correcting the list, shall strike Paupers to be therefrom the name of any person who within the twelve calendar months then next preceding shall have received 758 ELECTIONS. [appendix. Penalty for ne- glect or refusal of assessors. Listof nou-resi- dent electors. List to be sign- ed by sheriff and deposited with clerk of peace. If register not made that of year previous to be used. Revisers may summon wit- nesses, &c. Penaltyfornon- attendance of witnesses. Fees, aid as a pauper under any poor law of this province, or aid as a poor person from any public grant of government money. 24. If the assessors neglect to make up and deliver the lists, or wilfully deliver an incorrect list, or if the revisors neglect to revise the list so delivered, or wilfully transmit an incorrect list, for every neglect or wilful delivery or transmission of an inooiTect list every assessor or revisor so contravening this act shall pay a penalty of one hundred dollars, which any person may recover with costs, and each day a list is delayed shall be a separate offence. 25. The sheriif of the county shall, on or before the tv/entieth day of May in each year, attend at the office of the clerk of the peace to ascertain the non-resident elec- tors who may be qualified to vote in more than one polling district, and the clerk shall under his direction make a copy of the list of each polling district, with the name of any non-resident elector marked as such who may have selected that polling district. He shall make an alphabetical list of the remaining non-resident electors. "When a non-resi- dent elector shall, before the said twentieth day of May, have notified the sherifl^ in writing of his selection of a particular polling district, his name shall be inserted and entered on the list of that polling district until he become disqualified or direct otherwise. In case no such notifica- tion has been made the names of such non-resident electors shall be added to the list for any one of the polling districts in which their qualification exists. ■ 26. The list shall be made up, signed by the sheriff", and deposited with the clerks of the peace on or before the twenty-fourth clay of June in each year, and shall thence- forth be the register of electors for the county, township, or electoral division. 27. If from any cause the register of electors for any polling district is not made up in any year, the register last made up shall be used in its stead for the purpose of election. 28. The revisors shall have power to summon witnesses to attend at the time and place appointed, to give evidence as to the qualification or disqualification of any person, and to administer an oath aud examine the parties, and such witnesses on oath and any person so summoned, who shall neglect to attend without good cause shewn therefor to the revisors, or attending shall refuse to be sworn or give evi- dence, shall be liable to a penalty of twenty dollars ; and everj' witness attending shall be entitled to receive the same fees and travelling charges as witnesses attending before justices of the peace in civil suits, to be paid by the person at whose instance the respective witnesses may be summoned. APPENDIX.] ELECTIONS. 759 29. The list of electors for the city of Halifax shall be citf'of'nlufax revised and corrected by the aldermen, as above prescribed; h"w made up, ' and the city council may regulate the same hj bye-laws "^^'"^'^ ' not inconsistent with this act ; and when the list is cor- rected, and an alphabetical list of every ward or polling district is made up, it shall be signed by the mayor and filed with the city clerk, and be the register of electors for the said city. 30. The reasonable charges of the sheriff, clerk of the ^^^^1°?^" °l peace, city clerk, assessors and revisors, and of any other gisteV, h6w person required to assist in preparing the register of elec- ^'" ' tors, shall be a county or city charge, and shall be pre- sented, assessed, levied and collected, like other county and city charges. 31. The electoral districts and polling places shall re- Eieetoi-ai dis- ^ - . ^ ^ -t o 1 tricts to remain mam as now established. as at present. 32. "WTien a new assembly shall be summoned, or more |!,°™e"[i™'' than one vacancy occur at or about the same time, the length of no- writs shall be so transmitted that the same may be received "'^' by the respective sheriffs as nearly as may be at the same time. There shall be at least forty days between the teste and return of writs. The writs shall in the body thereof express the day when the sheriff shall hold his court for the commencement of the election, allowance being made for enabling him to give at least ten days notice of the election throughout the county, township, or electoral divi- sion ; and in eases of general elections, or where more than one writ shall be required to be issued at or about the same time, the day named for holding the sheriff's court for commencing the elections shall be the same in all the writs. 33. The sheriff shall, immediately on the receipt of a fi^^^ffl-onT writ, endorse thereon the day of receipt, aiid shall forthwith ceipt of writ, cause notice in writing or by printed handbills to be posted in some of the most public places within every polling district in the county, township or electoral division for which representatives are to be elected, which notices shall express the day when the sheriff will hold his court at the county court house, or other place prescribed by law for opening the election, being the day named in the writ therefor ; and also the time and place at which, in case a poll be demanded, the same will be taken, and the number of representatives to be elected, and for what places in particular under the writs then under the sheriff's hands; and that all persons who are guilty of bribery or undue influence at the said election will, on conviction of such offence, be liable to the penalties mentioned in that behalf in " the corrupt practices prevention act," and the poll shall be taken in the week next following that wherein the sheriff's court for opening the election shall be ap- pointed to be held, and on the same day of the week as the day appointed for holding such court. 760 ELECTIONS. [appendix. raSntyan'd'' ^^- The election for a county, and tlie townships or tobt'^oOTiT^^'^d ^l^ctoral divisions within it that return representatives, at sametime." shall be conducted at the same time; and the polling for the county and townships or electoral divisions, shall, within the townships or electoral divisions, be taken by the same presiding officers and sheriff's poll clerks, and at the same times and polling places. whrato\1,°heid ^^- ^^ ^^^ ^^y appointed for opening the election, the Ac, oaths to be sheriff or his deputy shall open his court at the county a minis ere . ^^^^^ housc. Or Other placc by law prescribed, between the hours of ten and twelve of the clock in the forenoon, and shall read his writs, and shall take the following oath, to be administered bj' a justice of the peace, or any two electors then present : " I, A B, do swear that I have not received, and will not receive, any sum of money, office or employment, or gratuity, or any bond, bill or note, or promise of gratuity whatsoever, either by myself or another, to my use or advantage, for appointing any presiding officer to take the poll, or for appointing any poll clerk, or for making any return at this election ; and that 1 will make such appoint- ments impartially and according to law." And the sheriff shall then administer to the clerk whom he shall have appointed to assist him in the election an oath for the faithful and impartial discharge of his duty, and shall continue the court open until two of the clock in the afternoon of that day ; and on the same day, and as soon after two of the clock as the duties remaining to be performed will permit, shall finally close the court, or adjourn the same to another day, as the case may require. Proceedings at 36. The sheriff" shall, at his court, receive the names of sheriff's court. ^-^^ candidates, proposed by two electors of the county, township or electoral division, previously to two o'clock ; and their names shall be by the clerk, under the sheriff''s direction, entered in the sheriff's record book, and no candidates name shall be entered after two o'clock, and at that hour the sheriff shall proclaim the names of candi- dates, and shall receive the schedules of and administer the qualification oaths to candidates whose qualifications may be questioned, and who shall not have previously qualified ; and in the case of each election, in respect of which, previously to two o'clock, no more candidates are proposed than are required to be returned, the election shall be forthwith determined, and the sheriff shall declare the candidates proposed, and who shall have qualified, if. thereto required, duly elected members, and shall make return of the writ accordingly; and in cases of elections where opposing candidates shall be proposed, previously to two o'clock, who shall have qualified, if required, as directed by this chapter, and where a poll has been de- manded, the sheriff shall then grant the poll, and make APPENDIX.] ELECTIONS. 761 proclamation of the time and place at which the poll will be taken in the several polling districts, conformably with the notices before conditionally given, and then adjourn the court, as regards the elections in which a poll shall be demanded, to some day within five" days next after the day for taking the poll then to be held at the same place. 37. Any candidate proposed at such election may, at "iyf^raw"'"" any time before one o'clock of nomination day, by writing under his hand, or publicly and openly in the sheriff's court, direct his name to be withdrawn. In which case the entry in the sheriff's record book shall be erased, and the sheriff shall immediately give public notice by procla- mation aloud, and thereupon such party shall not be con- sidered as having been proposed as a candidate. 38. A person capable of being elected a member of the ^"ndialtes"" °^ assembly shall be a male British subject of the age of twenty-one years and upwards, and qualified to be an elec- tor under the provisions of this act in some county, town- ship or electoral division of this province, or shall have a legal or equitable freehold estate in possession of the clear yearly ' value of eight dollars, and any candidate at any election shall, if required, by any other candidate or any elector or the sheriff" make before the sheriff the following declaration : I, A. B., do declare and testify that I am a British sub- Declaration. ject of the age of twenty-one years, and that I am duly qualified under the act to regulate the election of members to serve in the general assembly* to be an elector in the county, township or electoral division of this province, and that my right to vote as said elector is in polling district number in the county, \_or township or electoral division^ of. . If the candidate claims to be qualijied as a freeholder, then after the asterisk insert the words " in right of freehold property of the clear yearly value of eight dollars owned by me and described as follows" : l_here briefly describe the same, setting forth the county or township, or electoral division, where situate, and further particulars.'] 89. The candidate, or any elector for him, may make Declaration to and subscribe the declaration in the presence of a credible ^^ ^"'^scribed. witness, and present it to the sheriff, or it may be made on behalf of the candidate by an elector in presence of the sheriff. 40. If the qualification of a candidate when questioned if qualification shall not before the close or adjournment of the court be canlEe ais- specified as in the preceding section directed, the candidate 'J"''''*'^'*- shall be incapable of being elected, nor shall his name be entered on the record book, or if entered the same shall be expunged at or before the close or adjournment of the court. 41. No presiding officer shall receive nor shall any poll S'dates^noTon clerk record the name of a person as a candidate, nor shall fo be^efused ^ 96 "^62 ELECTIONS. [appendix. any vote be received for him unless his name shall have been entered as a candidate in the 8heriff"s record book at the court, and shall not have been expunged, and votes entered on a poll book contrary to this provision shall in respect of such person be expunged and not counted by d ^^^ sheriff in casting' up the votes, where opened, 42. "When a poll shall have been granted it shall be *"■ opened in the different districts at or near the polling place at eight o'clock in the morning of the day appointed, and be kept open until five o'clock in the afternoon when it shall finally close, and the sheriff shall, prior to the polling, cause booths to be erected, or procure buildings at vrhich th6 poll may be taken. take^the'p^oiL" ^^- ^l^<3n a poU has been granted the sheriff shall by precept under his hand appoint a presiding officer for tak- ing the poll in each district, vt^ho shall be then resident within the county, and shall have been so for a year then next preceding, and shall thereby direct the presiding offi- cer at the appointed time and place to take the poll within the district as well for the county as the township or elec- toral division, if such district includes any part of a town- ship or electoral division that is to return a representative, and the sheriff shall also appoint a poll clerk for taking the votes under the direction of the presiding ofScer in each district, and the clerk shall prepare a poll book and enter therein in separate columns the names of the candidates for whom votes are to be given within the district, and the names of the candidates, and the necessary information regarding them shall before the opening, of the poll be furnished by the sheriff' to the presiding officers, who shall communicate the same to the electors when required, and the sheriff shall be responsible for the conduct of his pre- siding officers and poll clerks. Sheriff may act 44. The sheriff' may act as presiding officer in a district officer'; without prccept and without taking the presiding officer's oath. At elections 45. At any election held before the twenty-fourth day sheriff'shaiifur- of Juuc, in the year one thousand eight hundred and sixty- sidfn^offioen"" four, the sheriff shall furnish the presiding officer of each polling district with the verified copy of roll applicable thereto, received by the sheriff" from the clerk of the peace as prescribed by this act. ei*ect^or?eTs- ^^- ^^ ^^^ ©lection held thereafter the sheriff' shall teriobefur- fumish the presiding officer of each polling district with a true copy of the register of electors of the polling district for which he is appointed. - fn onTd'sMcf 47. 'No clector shall be permitted to vote in more than °°'y- one polling district in this province on the same day. MustTote 48. No elector having at any election a right to vote in where resident , , ^ ,. °i,"'nT.. . ° ^ , , '"""^"■ at teste of writ, the county, township or electoral division ii ^rhich at the teste of the writ he resided, shall be permitted to vote m any other county, township or electoral division. PPENDIX.J ELECTIONS. 763 49. In any election held before the twenty-fourth day ^o^^to^sef" of June, in the year one thousand eight hundred and sixty- ?ieetors°to vote four, electors residing within the county, township or elec- whfch'theVSre itoral division shall vote in the polling district in which "^""''^ *° "^'■ their names appear in the list furnished under this act by the clerk of the peace to the sheriff. 50. In any such election non-resident electors having a Non-resident qualification in more than one polling district may at their SS'ta"''"'' option vote in either, and any such non-resident elector quiufied! '^ before he shall be permitted to vote shall, if required by the presiding officer, candidate, or his agent, or an elector, itake in addition to the oaths hereafter prescribed the oath following : I, A. B., do swear that at the teste of the writ for this *^^*- election I resided at , in polling district number , in the county [^ar township, or electoral division, as the ,case may 6e,] of . That I am qualified to vote in the said county [or townsh'ij}, or electoral division, as the case may 6e,] and that I have not this day voted in any other polling district in this province. 51. Before any elector is permitted to vote he shall Name and lesi- istate his name and residence, the clerk shall, under the to™e%''nt°ere°d°'^ direction of the presiding ofiicer, enter his name on the oS'the^S.^'* ^^ polling book, and the presiding officer, except in cases within the fifty-sixth and fifty-seventh sections of this act, must find it on the register or assessment roll [as the case may 6e] and mark it. 52. The presiding officer shall, at the opening of the presldlng'fffl-"^ a'oll, read aloud his precept and declare the names of can- '^^Fi"" opening ■didates, and whether for county, township or electoral ^° division, and shall at or before the opening of the poll and before receiving a vote take the following oath : "I, A. B., do swear that I have not received any sum of money, office, employment, or gratuity, or auj bond, bill, or note, or any promise of gratuity by myself or another to my use or advantage for making any return at this elec- tion, and that I will faithfully discharge my duty at the election to the best of my knowledge and judgment,* and that I will return to the sheriff a true and faithful account of the votes polled in this district wherein I preside." And the poll clerk shall before or at the opening of the poll take an oath in the same form down to the asterisk, with the addition of these words thereafter : " and I will faithfully record the votes received in the district where I act as poll clerk." The sheriff", a justice of the peace, and in their absence any two electors are authorized and required to administer the oaths. 53. The presiding officer shall appoint an inspector, an inspector, agent, and a clerk when nominated by or on behalf of a ofeAf^candi. candidate, and their names sh^U be immediately entered menfo'f!'"'*' "764 ELECTIONS. [appendix. in the poll book, and a candidate's clerk shall take the following oath, to be administered by the presiding officer : °*"'- "I, A. B., do swear that I will take this poll fairly and impartially by entering the names and places of abode of the electors, and the names of the candidates for whom they shall vote." dinro°ffi?e?ir 54. Presiding officers, polling clerks, candidates and c^l'^s. *c., how their agents, inspectors and their clerks may poll their votes in the polling district where they are acting, though they are not qualified to vote therein, if on the day of nomination their names are certified and entered as quali- fied by the sheriff on the poll book, and the sheriff" shall strike such names out of the district in which they are qualified to vote. If the presiding officer vote, the poll- clerk shall administer the necessary oath to him if required. Elector's oaths. 55. Every elector, except those voting under the fifty- sixth or fifty-seventh sections of this act, before he shall be permitted to vote shall, if required by the presiding officer, candidate, or his agent, or an elector, take the oaths following, or either of them, to be administered to him by the presiding officer, that is to say : OATH NUMBER ONE. " I, A. B., do swear that I am qualified to vote at this election, that I am of the full age of twenty-one years, and am a British subject, that I reside at , that I am the person named in the register [or assessment roll, as the case may be,] and that I have not before given my vote at this election. So help me God." OATH NUMBER TWO. "I, A. B., do swear that I have not received by myself, or another, or any person in trust for me, or to my use, directly or indirectly, any sum of money, office, place of employment, or gift, reward, or any promise or security for any money, office or employment, or gift, in order to give my vote at this election. So help me God." OATH NUMBER THREE. "I, A. B., do swear that I have not within twelve calen- dar months next before this day received aid as a pauper under any poor law of this province, or aid as a poor per- son from any public grant of government money. So help me God." Teachers and '56. At any election held before the twenty-fourth day entitled to vote, of Junc, in the year one thousand eight hundred and sixty- four, licensed schoolmasters Avho, for six calendar months next before the teste of the writ for holding an election, APPENDIX.] ELECTIONS. 765 shall have been actually engaged in teaching school, pro- fessors of colleges, teachers of academies, being of full age and British subjects by birth or naturalization, may vote for the county, township or electoral division in which they reside, provided they shall have been resident in the poll- ing district in which they claim to vote for a period of three months next before the teste of the writ ; and any person claiming to vote under this section shall, if required by the presiding officer, candidate or his agent, or an elec- tor, take the second and third oaths prescribed in the fifty- fifth, section of this act, and also the oath following : "I, A. B., do swear that I am qualified to vote at this election, in this polling district, that at the teste of the writ for holding this election, and for the three calendar months then next preceding, I have resided in this polling district, and that I am a professor of college, \_or a teacher of the academy at , or a licensed schoolmaster,'] and that during the six months next preceding the teste of the writ for this election I was actually engaged in teaching school in this province." 57. At any such election where real property has been incase of death assessed as the estate of any person deceased, or as the sessed on real estate of a firm, or as the estate of any person and son or futfonoTfirmr sons, the heirs of the deceased in actual occupation at the S'partne*^'^-^ time of the assessment, the persons who were partners of *"i''"^ toTote. the firm at the time of the assessment, and the sons in actual occupation at the time of the assessment, shall be entitled to vote in the same way as if their names had been speci- fically mentioned in the assessment, and any person claim- ing to vote under this section shall, if required by the presiding officer, candidate or his agent, or an elector, take the second and third oaths prescribed in the fifty-fifth sec- tion of this act, and also the oath following : I, A. B., do swear that I am qualified to vote at this o»th. election, that I am an heir of C. D., deceased, whose pro- perty is mentioned in the assessment roll as the estate of C. D., and that at the time of such assessment I was as such heir in actual occupation of my share of the assessed premises, [or, that at the time of the making of the assess- ment roll 1 was a partner in the firm of C. I). §• Co., therein mentioned, or, that at the time of the making of the assessment roll 1 was in actual occupation with C. D. of the property assessed in ' the roll as the property of C. D. and son, or C. D. and sons.] 58. Every sheriff" or presiding officer who shall on re- gi™f OTreiimi quest neglect or refuse to administer any or either of the of sheriff, oaths required to be taken by any elector, shall for every offence forfeit the sum of two hundred dollars. 59. If any person shall fraudulently vote at any elec- frluduTent voie tion by personating any elector, or being qualified shall or Tot'"stv7ice, vote or offer to vote more than once at any election, for every such offence the person shall forfeit the sum of forty 766 ELECTIONS. [appendix. dollars, and it shall be the duty of the sherifi" to prosecute therefor. If elector refuse gQ. If an elector wheu required shall not take the oaths prescribed, his vote shall be expunged. teke''piace*at 61. The presiding officer shall prevent unnecessary de- tions"^rle^°" ^^y ^^ polling, and no person shall be permitted to interrupt asked. the polling by addressing the electors or otherwise ; and for avoiding needless and factious questioning of voters, the elector shall immediately state for whom he votes, and thereupon the candidate against whom he votes, or his inspector or agent, may require the presiding officer to put such necessary and pertinent questions as may be proper for ascertaining the elector's right to vote, and the pre- siding officer shall allow no other questions to be put, nor shall any questions be put except through him, nor shall he permit the same to be unnecessarily protracted on pre- tence of questioning a voter; and the presiding officer shall promptly put the questions, and the poll clerk shall instantly enter in the poll book the purport of the answers, and read the same aloud to the voter. If the elector shall not promptly answer the questions his vote shall be ex- punged, and he shall not be allowed to vote again. presTd1n'g"fm°' 62. The presiding officer, after the close of the poll, and OCT on close of bcforc making return to his precept, shall subscribe in the poll book the following oath, to be administered by a jus- tice of the peace or two electors of the polling district: "I, A. B., presiding officer for the polling district , in the county of , do swear that the poll clerks were duly sworn, and that to the best of my belief this poll book was truly and correctly taken under my direction, and con- tains a true and correct statement of the votes taken at the X3oll tor the district, held in pursuance of the sheriff's pre- cept, to me directed, and dated the day of , in the year of our Lord one thousand eight hundred and . feS"" '° ^' 63. The poll clerk, after the presiding officer shall have taken the oath in the preceding section, shall enclose and seal the poll book, and deliver it to the presiding officer at the poll, who shall give a receipt therefor, and shall forth- Penaityformif- with retum the Same, so sealed, to the sheriff. siding^ofHce''/.''" ^^- ^^ ^ pi'csiding officer shall not, when required, ad- minister the oaths to an elector, in a competent state of I mind to take them, or shall allow any person to interfere or put questions to voters, by which time is taken up, or" shall put questions other than in this chapter specified, contrary to the wish of any candidate, or his agent, or shall wilfully protract, or permit to be protracted, the polling, or shall otherwise offend in the premises, he shall forfeit forty dollars for every offence. Penalty for 64- If a presiding officer shall not, before the opening Sriuering'°poii of the sheriff's court on the day to which the same was *'°°'^- adjourned, return the poll book or his precept to the sheriff APPENDIX,] ELECTIONS. 707 or shall alter the poll book, he shall be liable to an action for damages at the suit of any party aggrieved, and shall also forfeit for every offence two hundred dollars, and the further sum of twenty dollars for every day's neglect to return the poll book. QQ. If a poll clerk shall offend in the premises he shall Penalty for mis- forfeit forty dollars for every offence. cS"' °^ 67. The sheriff at his courts, and the presiding officers Powers of pre- at their polling places, shall be, during the day on which &c''.'"° °'"'^"'°' the election or polling may be prosecuted, conservators of the peace, and vested with the same powers for the preser- vation of the peace, and the apprehension and committal for trial, or holding to bail, or trying and convicting viola- tors of the law and good order, as are vested in justices of the peace ; and for the purpose of preserving peace and good order at the election or polling, the sheriff' or presiding officer may require the assistance of all persons present, and may on view commit any persons for breach of the peace, violating or threatening electors at, or coming to, or returning from, the election or polling, or for any viola- tion of good order, to the custody of any person, for any time not exceeding twelve hours ; or may, by a writing under his hand, commit to prison for a like offence for a period not extending beyond the second day thereafter, and at the expiration thereof may cause the offender to be brought before a justice of the peace, who shall enquire into the matter, and may fine the offender in a sum not exceeding eight dollars and costs : and commit him to jail until the fine be paid ; and all persons present are enjoined to assist the officer presiding and justices in discharging such duties, under pain of being guilty of misdemeanor ; and justices residing in the district, upon being notified in writing by the sheriff or presiding officer, shall attend to aid in preserving peace and order; and the justices, sheriff' and presiding officer may, when considered necessary, swear in special constables to act as peace officers, and assist in maintaining peace and order ; and upon the writ' ten application of a candidate or his agent, or two electors, the sheriff or presiding officer shall swear in such special constables as may be requisite. 68. If a presiding officer, before the termination of a in case of inoa' poll, shall die, or be incapable of performing, or shall not ITdTnloffiMr" perform his duty, the poll clerk shall act in his stead and perform his duties ; but before commencing his new duties he shall appoint a poll clerk, who shall, with the new presiding officer, previously to entering upon their duties, take the oath prescribed for presiding officers and poll clerks, and they shall have the same powers, and be liable to the same penalties in their new capacities, as if origi-' nally appointed. 708 ELECTIONS. [appendix. pacufof poSi""' 69- If a poll clerk shall, before the termination of a clerk. pollj die, Or be incapable of perfoi'ming, or shall not per- form his duty, the presiding officer shall appoint another poll clerk to act in his stead ; and the new poll clerk, before entering on his duties, shall take, in manner as if originally appointed, the oath prescribed ; and he shall have the same powers, and be liable to the same penalties, as if originally appointed poll clerk. l>roeeeding8 of 70. The sheriff" shall keep the poll books unopened until snsriri s court i after the poll, the reassembling of his court on the day to which the same shall have been adjourned ; and then he shall openly break the seals thereon, and cast up the votes as they appear on the poll books, and shall then openly declare the state of the poll ; and if within one hour thereafter any candidate, or two electors, demand a scrutiny of the qualiiication of any candidate previously qualified, and about to be re- turned, or protest against the whole election, or return of any member, on grounds to be stated in writing, the sheriff' shall enter the same on the record book, and annex a copy thereof to his return, with the writ ; and such candidate, or two electors, may, by writing, signify to the sheriff at any time before the next meeting of the legislature, the abandonment of the protest or scrutiny. ^hCTfff'making '^^- ^^7 sheriff who shall make a false return, or return false returns, more than are required by the writ to be chosen, shall for- feit for every offence the sum of four hundred dollars ; and the party aggrieved may also recover the damages he shall sustain thereby, with costs, in an action against him, or any person who shall knowingly procure the same. Proceedings in 72. "Whcu any of the precepts for taking the poll shall bSokt a?e°not uot be returned at the time to which the sheriff 's court was returued. adjoumed, the sheriff shall not examine the returns made, but shall further adjourn the court to the following day, and so from day to day until the precepts and poll books shall have been all returned ; and in making such adjournment the sheriff shall publicly declare the reason, and he shall in no case continue the adjournment if the house of assembly be in session, or to so late a day as shall interfere with the return of his writ in time for the then next session ; but he shall in such cases complete the election, and return his writ, notwithstanding the deficiency of returns, and he shall in his return mention the deficiencies. Keturn ofpoii 73. If a presiding officer shall not have returned his coSfpTneT precept and poll book at the proper time, the sheriff" or a candidate, or an elector, may make complaint thereof on oath, before a justice of the peace, who shall summon the presiding officer to answer the same ; and if he shall not appear and shew good cause for the delay, the justice shall by warrant commit him to jail, until he shall make due return of his precept and proceedings thereon, together with his poll book. APPENDIX.] ELECTIONS. 760 74. A candidate affainst whom a vote shall be wrone:- i'AGE. Absent or absconding debtors 605 Actions; limitations of 641 Administration of criminal justice 683 Administration of justice ; offences against . . 663 Administrators ; suits against CIO Agriculture ; encouragement of 375 Agents and factors 317 Agricultural and land corporations 347 Aliens ; naturalization and privileges of . . . 153 Animals and birds ; preservation of 3G4 ; noxious 366 . ; rabid 201 Apprentices, &c 424 Appropriations ; fraudulent 674 Arbitration 615 Army and navy; offences relating to 655 Assembly; election of members to 755 ; representation in general 6 Assaults ; petty 620 Assessments . county 166 Attomies and barristers 479 Barristers and attomies • .... 479 Bastard children, 357 Bllletting of troops and militia 147 Bills of exchange and promissory notes . . . 319 of sale; -secret 412 Birds and animals 364 Births ; registration of 414 Board of health, 198 of revenue, 29 of VForks, 85 Boimdaries of counties, &c., 161 Bridges and public landings, 248 Burning woods and marshes, 389 Casual and territorial revenue 17 Cattle and horses ; stray 392 ; infected 393 ; impounding of 187 Census and statistical information, 154 Certiorari; vrrit of 624 Children; bastard' 367 Church of England, 190 Clerks of the crown, 164 Clerks of the peace, 163 Closing of roads 248 Coast and sea fisheries, 367 Coastmg on highways, roads over ice and guide boards, 394 Combinations of workmen 667 Commissioners of streets 231 without the province 612 Commons 279 Common fields, 279 Companies ; joint stock 750 Congregations ; religious 192 Constables ; protection of 629 Construction of statutes 2 Controverted elections 12 PAGE. Copyright ; law of 406 Coroners, 162 Coi*porations in general, 343 ; agricultural and land 347 Con-upt practices at elections, 8 Counties; boimdaries of 161 County assessments, 166 County buildings, 183 Court of enquiry ; marine 293 marriage and divorce 446 probate, 447 supreme, 427 supreme ; pleadings and practice in . . 516 Costs and fees 643 Criminal justice ; administration of 683 Crown lands 113 Cro^vn property ; trespasses to 110 Currency, 320 Customs ;duties, ■ . . ! 18 ; laws of . i 31 ; officers of 29 Deaths; registration of 414 Debtors ; absent or .absconding 605 Debtors ; joint 609 Debtors; insolvent . • 593 Deeds by married women, 396 ; registry of 742 Descent of real and personal estate 747 Detainer; forcible entry, &c., 604 Dike lands 271 Disabilities ; executive and legislative 5 Distilleries, 58 Distress, for rent, 613 Divorce; court of 446 Dogs ; taxation of 395 Dewer; writ of 596 Drawbacks 49 Duties; customs 18 ; excise 26 ; lighthouse 59 Elections ; controverted 12 Elections ; corrupt practices at 8 Elections of members to assembly, 755 Encouragement of agriculture, 375 England ; church of 190 Enlistment; illegal 657 Equity; proceedings in 451 Equity judge, 444 Escheating lands, 485 Estates fail, 397 Evidence; witnesses, &c 070 Executive and legislative disabilities 5 Executors; trustees, &c.; suits against. ... 610 Exchange; bills ot 319 Excise duties, 26 Exhibitions ; public 391 Expenditure on roads 238 Exportation of goods and drawbacks 49 776 INDEX TO CHAPTERS. PAGE- Factore and agent 317 Fees and costs, 643 Fences and fence viewers, &c., 187 Ferries 249 Fields ; common 279 Financial Secretary, 157 Fire arms and fii-eworks, 387 Fires and firewards, 382 Fisheries ; coast and sea 367 ; i-iyer 371 Forcible entry, &c. ; tenancies, 604 Fortifications ; public 149 Forgery and offences relating to the coin, . . . 677 Fraudulent appropriations 674 Frauds and peijuries ; prevention of 411 General assembly ; duration of, and representa- tion in 6 General assembly ; election of members to . , 755 General sessions 164 Goods; exportation of 49 ; importation of 36 ; ivarehousing of 47 ; -wrecked, 288 Great roads, 218 Gunpowder; transportation of 388 Guardians and wards 423 Guide boards 394 ■ Habeas corpus, 638 Habitations ; offences against 672 Harbors and harbor masters, : 304 Health; board of 198 Horses and cattle ; stray 392 Highways, 218 Highways ; sxu-veyors of 735 Highway labor, 225 except in Halifax 735 Ice; roads over 394 Illegal enlistment, 057 Immigrants 150 Importation of goods, 36 Impounding of cattle 187 Incorporation of joint stock companies 750 Indians, 205 Infected cattle, &c., going at large, 393 Injuries to property, 677 Insolvent debtors, 593 Inspection of provisions, &c., 323 Instruction; public 208 Interest 741 Interpleader 624 Intoxicating liquors ; license for sale of . . . 61 Inventions; patents for 409 Jails and other county buildings, 183 Joint debtors 609 Joint stock companies, 750 Joint tenancy and tenancy in common, ... 402 Judge; equity 444 Judges; qualification of, &c., 157 Juries, 583 Justice; administration of criminal 683 Justice ; offences against administration of . . 663 Justices of the peace ; protection of 626 Labor on highways, 225 Land corporations, 347 Landings; public 248 Lands of the crown 113 Lands; escheating of 485 Lauds; partition of 697 PAGJ5. Lands ; sale of under foreclosure 4U3 Lands ; sale of to satisfy execution debts . . 404 Law of copyright 406 Laws of the customs 31 Legislative disabilities, 5 Liberty of the subject, 638 License for the sale of intoxicating liquors, . . 61 Light house duties, 59 Light houses, 91 Limitation of actions 641 Liquors ; intoxicating, 61 Lumber; inspection of 323 Lunatics, 629 Madmen, 629 Magistrates ; power of, in civil cases, 465 ; duties of, in criminal cases, ... 707 ; stipendiary or police, 476 Malicious injuries to property, 677 Markets ; public 381 Marsh lands, 271 Maniages; births; deaths; registration of . &c. 414 ; solemnization of 414 MaiTiage and Divorce ; Court of 446 ; offences against law of 661 Married women; deeds by 396 Masters, apprentices, and] servants, ..... 424 Marine courts of enquiry 293 Measures and weights 341 Meeting Houses ; repairs of 197 Members of Assembly; election of 755 Merchandize ; regulation of . . ■ 323 Militia, 122 Militia; biUetting of 147 Mills and millers, 322 Mines and minerals, 93 Morals ; offences against public 660 Municipalities, 487 Naturalization of aliens, 153 Naval propei-ty, 119 Navigation; steam 293 Navy and army ; offences relating to 655 Nuisances, 201 Noxious animals 366 Obstructions from rivers ; removal of 389 Offences; petty 620 Offences against administration of justice, . . 6ffi! the army and navy 655 the coin, 677 habitations , 672 law of marriage, 661 theperson 664 public morals, 660 public peace 662 rehgion 659 Officers of the customs 29 ; salaries of public 155 Partition of lands 697 Partnerships, 312 Patents for useful inventions 409 Peace; clerks of 163 ; offences against public, 662 Penitentiary, 87 Pensions, 15S Person ; offences against 664 Personal estate; descent of 747 ; wills of 397 Pequries ; prevention of frauds and 411 Pettj offences, trespassea, &c 620 INDEX TO CHAPTERS. 777 PAGE. Physic and surgeiy, 201 Pilotage, harbors, ami harbor masters, . . . SW rieadings and practice in supreme court, . . . 516 Police magistrates 47G Poor, ;M^ Poor districts ?,7)ii Post office 71 Preservation of roads, '242 Prevention of frauds and perjuries, 411 Prevention of smuggling, _ 55 Privileges of aliens, l.'i;} Protection of constables, C29 justices or the iieace, G26 Probate court 447 Promissory notes, 319 Prothouotaries and clerks of the crown,. ... 1(14 Proceedings inequity,. ... 4;il Proof of written documents, ri70 Property ; malicious injuries to 077 naval 119 trustees of public 3S0 Provincial loan, 159 Provisions ; inspection of 323 Public accounts; rendering of, &c, 157 Public exhibitions, 391 fortifications, 149 grounds; supervisors of 244 insti-uctlon 208 landings, 248 markets, 3S1 morals ; otfeucea against CBO officers; salaries of . . . . . . 155 peace; offences against 002 property ; trustees of 380 records, 93 ^Vorks ; subscriptions to 224 Quarantine, 198 Kabid animals, 201 Kailroads ; provincial government 250 private, 269 Heal estate ; descent of 747 wills of . . 397 Receiver General, Financial Secretaiy, .... 157 Records ; jjublic 93 Registration of marriages, l)irths, and deaths, 414 EegistiT of deeds, 742 ships, 2il2 Religion ; offences against 059 Religious congregations, &q., 192 Rent; distress for 013 Repairs of meeting houses, 197 Representation in general assembly, Revenue; board of 29 Revenue ; casual and teixitorial, 17 Rivers; conveyance of timber, &c.,on .... 389 River Fisheries, 371 Roads ; closing of 248 expenditure on 238 great ' 218 other than great, 222 over ice 384 preservation of 242 .Sable Island, Lighthouses, &c., 91 Saint Paul's Island, 91 Salaries of public officers, 155 Sale of lands under foi'eclosiirc, . ....... 403 98 satisfy execution debts. Sale of lands Savings bank Scattarie Island Scrutinies, Sea manure, pitheriii;,' of . . Seamen, ... Secret bills of sale, . ... Servants, Sessions ; general and special. Sewers, dike and marsli land Sheriffs, Shipping and seamen Ships; registry of Smuggling; prevention of Societies, religious, ... Solemnization of marriage Special sessions, Statistical infonnation Statutes: con.struction of. Steam navigation, Stipendiary magistrates Stray horses and cattle, Streets ; commissioners of Subject ; liberty of the Subscriptions to public works, Suits aganist executors, admmistrators, and trustees, Supervisors of public gromids, Supreme court and its officers, practice in, Surgery and physie Surveyors of highways, except in Halifax, . Taxation of dogs, Telegi'aph for military pnrp6ses Tenancies, forcible entry and detamer, .... Tenancy; joint Tenancy in common Terms in title forty-one, TeiTitorial and casual revenue, Tomisliips and to'wn.ship officers, Treason, Treasury notes, savings' bank, and provincial loan, Tres))asses to crown property, petty Transportation of gunpowder, Troops ; billctting of Trusts and trustees, Trustees of ijublic property ^. Trustees ; suits against Useful birds and animals, Tacating seats, Vagrants, "Wards and guardians, Warehousing of goods Weights and measures, • Wills of real and personal estate, Winding up of joint stock companies, Witnesses; evidence, &o Woods and marshes ; bm-ning, Workmen; combinations of Works ; board of public; subscriptions to Wrecks and wrecked goods, Writ of certiorari, dower 404 159 91 731 412, 424' 164 271 192 414 164 154 2 476 392 231 638 221 610 244 427 510 201 395 149 604 403 402 CSO 17 :t!4 6.:5 159 110 620 3SS 147 481 380 610 304 10 029 423 47 341 397 750 B70 389 C67 85 224 298 024 500 GENERAL INDEX. A. PAGE. ABATEMElfT. in cases in supremo court 522 suits against joint debtors, 610 indictment against criminals 084 plea in, of non-joinder, 522 costs in same, . ' S22 when action not to abate by death, . . 522-3-i ABOETIOH". punishment for attempting to procure, . . 665 ABDUCTIOBT. of girls under sixteen years, 666 ABSEIVT OR ABSCOBTDnSTG DEBTORS. Affidavit to be made before summons, 605 what it shall state 605 to attack attachment, 606 for summons against agent, 609 Agent summons to bring in, 605 goods in hands bound by service of process, 605 to file declaration, &o., 607 when to appear and be examined ; pro- ceedings 607 costs of, 607 proceedings on failiu-e to appear, . . . 607 may put in special bail 607 no trial till agent admit goods, .... 607 ' execution, when to issue against. . . . 608 not held liable for goods taken 608 foreign companies, how served 608 may procure time to communicate with principal, 008 of foreign company, liability for judg- ment, 608 of foreign company may be examined after judgment, &c., 608 of foreign company may be proceeded ag^st at same time as attach- ment, 609 affidavit for summons against, 606 'Appearance when defendant may appear 606 of agent or trustee 607 when none within six months, proceed- ings 607 and rehearing within three years, . . ■ 607 Attaolunent when mayjbe sued out, 605 amount to be levied with costs, .... 605 validity when disputed by subsequent attiicber, ,,,..... 606 PAGE. ABSEWT &0. D'EB'SOS.S— continued. Attaclmient court may direct trial by jury and other proceedings between adverse claimants, 606 against foreign companies 608 form of. {See Practice Act,) 556 Assessment of damages when and how made,. . . 607 Bail special may be put in to relieve pro- perty, . / 607 Companies, foreign, &o. : doing business by agent, how sued, &c 60S agent allowed time to comnnmicate with principal, 608 liability of agent when judgment against, 608 agent of may be examined on oath after judgment 608 may be proceeded against by attach- ment, 608 remedy not to affect other legal rights, 609 Costs what amoimt to be levied for, 605 what amount, service on agent to secin-e, 606 court to direct security for 606 of agent, 6C7 when agent liable for, 607 agent's costs when execution issued, . 608 when agent of foreign company may have, 608 Execution when issued against agent, 608 security requu'ed before issued against debtor, 608 Forms Xos. 3, 4, and 5, schedule practice act, chap. 134 553-3 Goods when bound in hands of agent, .... 605 ' exhibited to sheriff to be appraised, &c., 600 perishable may be sold by order of judge 606 when agent not liable for 608 Judge may order sale of perishable goods, . . 606 may order new trial, &c., 607 agent may be examined before, .... 607 ABUSE. 9f fenjales of tender age 666 780 GENERAL INDEX. ACADEMIES. (See I'uhlic luntruction.J . . . . :;i).s ACCESSOSIES. f See C'riiHtnal Justice J . c;^;; CSee Factors and Agents.) :il7 (See I'osl Office. J 7] ACTS. promulgation uiiil BouslTuctlon of, . . i ADMISISTBATIOK". (See I'rohatel'ouri) 4i7 ADMIBTISTEATIOBT OF JUSTICE, OEEEBTCES AGAIUST | puuishment for ass.TOlting a peace or revc;- nne officer or constable, (503 for aiding the assaulting party, 003 resisting the apprehension of a pax'ty accnsed, hy ...hooting at, stabbing, &c (iO-'i perjury or snbornation of i^erjnry, . G(J3 ro-'-ciie or breach of prison, 063 false orders, certiflc.ates, &c., of public records, (iOi- stealing or injurmg documents comicct- ed with the administ.ation of jus- tice OIU corruptly takmg reward:- for helping a I party to a stolen chattel, security, t"cc . cx<'0])t snch person ^.hall cause ofl'ender to bo apin-ohended, &<■., Oftl ADMHiriSTKATOKS . ( See Can. tnf Probate,) il7 AFFIDAVIT. - I to hold to bail, 510 { wrong name, iV:c.,;of defendant in, eilect I ol' ' .J17 AFPIBMATIOIT. of (Quakers and Moravians, i AGENTS. ( See Jhsciii or AhscoRtJinij Debtors,) . . . OO.l (See Factor.^ tnnl Jijents,) 317 AGKEEMEBTTS. which are required to be in iiTitiug, Ac, . 411 AGKICULTUKE, EW COUKAGEMEBTT OF- central board, how .appointed, 37."i officers to be elected at first meeting, . . . 37'0 tivo general meetings to be held in each year, when 37,5 special meetings may be called, how. . . . 375 retirement of members 375 to be detennined Ijy ballot, 375 agricultural societies to nominate a member of board in place of retiring mem- her 37(5 vacancies in district Xo. 1, hoAv lilled, . . . 370 when votes equal, board to elect by ballot. 370 vacancies by d^ath, if., how fdled 370 members to be paid actual expenses only, 376 duUes of boai'd 376 board to appoint inspectors of societies, . . 377 board entitled to draw monies not exceed- ing $2,000, as governor in coimcil may authorize. Application for IJortion thereof for salaries, &c. Yearly account with vouchers to be rendered, 377 ngricuUural societies how organized, sub- i scription, Ac, 377 ' AGKICULTUKE, BNCOUBAGEMEBTT OP — continued, when so organized, entitled to draw from treasury double the amount of subscriptions, not to exceed $200 per annum 377 govcntmcnt allowance how apportioned, . 377 boundaries of societies, by whom defined, . 377 objects of agricultural societies, 377 annual meetings of same when held. Elec- tion of officers 37s first officers to continue until successors appointed, 378 tfl)ecial meetings may be held; bye-laws may be altered, &c., ........ 37S annual report when to be presented— to be entered in journals of society, and a #ue copy sent to central board, 37t) forfeiture for neglect to render accotmts, &c., 378 comity societies to hold annual show, . . . 378 other system m.ay be adopted m place of show 370 apphcation of this chai^ter, 37'.l schedules 37U AGBICULTUKAL AND LAND COK- PORATIOXS, (See Corporntions, Ai/rirultural, t^c), . . 3-17 ALIENS, NATUKALIZATION AND PEIVILEGES OF— may take, hold, con^'ey and ti-ansmit real estate, . . 153 titles to real estate not invalid on accotmt of alienage of former owner, . ... 133 not to make valid title of aliens, invalid on 31st JIarch, 1854 153 mode of naturalization of 153 oath to be taken and subscribed in duplicate before clerk of peace, who shall give certificate to aliens; fee for same, 153 to be filed with clerk of i^eace and dupli- cate hi provincial secretary's office 154 AMENDMENT. (See Supreme Court, Plead- ings in (fe,,) 530 AMEBCEMBNTS. (See Assessments, County) lOS AJSriMALS. (See Koxions Animals,) ■ 360 (See Preservation of Birds andAiiimals,) . 364 (See Rabid Animals,) \ ... 201 APPEALS. from justices, when granted, 4 penalties under revenue laws, limita- tion of, 30 not to stay execution in certain cases, . . 36 under license law, how gi-anted, . . .05 from sessions to supreme court in cases of land taken by board of works, . 8'i order of judge as to public records, . . 93 justice under ch. 25, " of mines and minerals,'' lOS chief commissioner of mines to judge at chambers, 113 justices of supreme court under ch.'_27, " of h'espassesto cro'mi property," 118 amercements of sessions for coroners charges, 1C2 GENERAL INDEX. 781 APPEALS— COTiMKtja^. i fi'om county assessments • . 177 justice as to sutUcieacy ul" Icuco^, ... ISS I judgment of fence vicw(.'i-s, . . . . IX'J decision of fjustices under t-h. .)7, "of Indians," '208 order of supervisors luidercli. (jO, " of I sui)ervisors of pulilic gronuds," 411; \ order of sessions under eh. (i7, " of . closing old roads," 'JiS i decision of arbitrators under cli. 70, " of railroads," 2.)..; decision of jury on railway damages, . 2.')9 orders of marine courts of enquiry, . , 204 decision of arbitrators as to salvage, . itOl order of liliation, .'JjS judgment of justices under t-li. 9."), "of river lisheries," o72 decision of justices resiiectnig masters, apin-entices, &',:., -I2.> decision uf a judge at chambers, . . . .').")! decision of jut^tices, &c., under chap. 137, " of insolvent debtors," . . . -tO-j decision of justices under chap. It7, " of petty trespasses, &a., GJO decision of justices irnder chap. Ifiij, " uf combinations of workmen." • . (i70 APPEARAKTCE. ( See Supreme Court, plecLiUiigs ill J . . . 519 APPLES. (See Inspection of rroriaions, ifo.) oIO APPOIBrTMEWTS. authority to make, to inohido power, to fill vacancies, 1 to continue during pleasure only, . . 4 APPKAISEBS. aijpointment of, 4.30 fees of, • . . . (;.V2 inventory to be made by, 450 oath of, how taken 4.')0 APPKENTIOES. (See J/a.^tt'i-^, Appreritijcs, (S'c.J, .... 424 ABBITEATIOIir. Arbitrators power of, when iiTevocable, (115 may administer 'oaths 015 judge may order reference to ... . 015 may state special case, 016 power of, when reference compulsory, 016 power of court to appoint 018 may appoint umpire, when, 018 when to make award, 019 fees of, allowed by judge, 620 Award when judge may enlarge lime for, . . . 015 applications to set aside, when, &o. . . oio when final, 010 order to enforce, 017 objections to, to be stated in rule, ... 017 when to be niade, 019 when possession of lands directed by, how enforced, 019 obediauco to, when submission rule of court, how enforced, 020 Court or Judge power of, to direct reference, G15 may direct case stated or issue tiled, . 610 where special case may order judgment, 016 AKBITBATIOH— 30»«/!««/ . Court or Judge may remit to arljilrators for recon- sideration, applications to set aside, award m;ideto may enforce awai-d may stay proceedings in action brought after reference power to appoint arbilvator, may enlarge time for award may make rule or order to deliver pos- session of lands, court may enforce obedience to aivard in special case, ..." jndge may allow fees of arliitrators,. . Documents wlien persons compelled to produce, 01. Oath.3 power of arbitrator to administer, . . . poAver of justice to administer, . . . ■Witnesses attendance of, iiow enforced, . fees of ... . compelled to proilnce documents, at- tendance, &(■■. arbitrators may administer oaths to . . Avhen justice may administer oaths to . power of arbitrators as to ARMY AliTD NA.VY. articles for use of, exempl from duly, . goods for, how deli\'ere(l from Avare- house, .... 'if not used in service duly to be paid, . return of articles useil no duties returned exi'e'iit for ,l;o(iiK specified in certificate, .... board of revenue ma y make regulation s , exemption only for goods in original packages, ■ . dra^^•backs, how obtained on shipment of goods, goods to be weighed, &c., ami draw- back aceordingl}-, if re-landed in jn-ovince to be forfeited, Army Officers Wines how delivered from Avarehousc, . . . duties returned or bonds cancelled on certificate that wines have been used, Navy Officers "Wines purchased under Ucense from board, . how permit obtained and certilicale granted, certificate to be delivered to collector, . ARMY ABTD UAVY, OFFEWGES EE- LATIWG- TO- procuring or soliciting desertion fj-om her majesty's service, or Iniow- ingly conceaUng deserters, pun- ishable by fine, and for want ol' payment imprisomaent buying, exchanging, or detaining regi- ■ mental necessaries, &c., ])unish- able by fine, or in default of pay- ment, imprisonment penalty for receiving necessaries from marines and seamen except in Halifax, forfeiture under pre- ceding sections recoverable by 017 017 017 017 (lis 019 020 020 015 015 015 015 015 015 015 010 055 (;5i; GENERAL INDEX. ARMY ABTD NAVY, &c.-contmued. summary process before two jus- tices; appropriation of forfeiture, G56 appeal allowed; examination of wit- nesses about to leave province, . 636 apprehension of persons suspected of being deserters, and examination of, Cot a waiTaut necessary before any b\uld- ing can be entered in search of deserters, 656 justice of peace to issue warrant, . . . 657 AKREST. CSee Justices of Peace ,■ JDuties of in Civil Cases, J 465 (See Justices of Peace; Duties of in Criminal Cases,) 707 ( See Supreme Court i PleaMngs in,) . . . 516 (See Supreme Court; Administration of Crimiwil Justice in 683 ABSOKT. tt^^ . punishment for, 673, 677 ^SSAULTS. (See Administration of Justice, . . . . ■ 663 (See Fraudiiknt Appropriations,} 674 (See Person, Offences against,) 666 . (See Petty Offences, Trespasses, (fo J, .... 623 't: ( See Public Peace ; Offences against 663 AS8ESSM:E]^3"TS, COUNTY. Amercements to be made for certahi purposes when grand jury neglect 168 appointment of assessors and collectors in case of, 168 by supreme court, 176 proceedings, 176 power of supreme coiu't in case of re- fusal of officers, 176 Appeals when and how proseciited,. . ... 177 repayment when ordered under 177 not to d^lay proceedings 177 Assessment Boll : to be returned by assessor, 169 iides for making \v^, 170 time for preparing, &c. 171 lands of non-residents, 171 lime for completion and return of . . . 171 certificate to 171 roll to be forwarded, &c., 171 county and i^oor rates made from &c., . 171 clerk of peace to make rate from, . . . 172 assessors to furnish copy to poor clerks, 172 what it shall contain, 172 to be delivered to collectors 172 of non-residents when returned 174 when made up by general and local assessors, 179 Assessors how appointed, 168 to be notified and sworn, 169 to return time spent and compensation, 169 vacancies how supplied, . . 169 penalty on for refusal 169 mlos for guidance in making rolls, ... 170 to estimate value of property, 171 time to complete rolls and certificate, . 171 to forward roll to clerk of peace 171 to post copy of roll 171 ASSESSMENTS, COTJlHTiY—cwiUnued. Assessors to furnish copy of roll to clerks of poor, 172 for electoral districts and general, how appointed 179 time and place of meeting, &c., .... 179 to fm-nish poor clerks with rolls, ... 180 Certiorari when allowed and how obtained, . . 178 Clerks of Peace to notify assessors and collectors, ... 169 assessors' roll to be forwarded to, . . . 171 to make out county rate, when, &c., . . 172 to deUver roU of to collector, 172 his duty on amercements by supreme court, i 178 to sue for forfeitures, &c. 178 penalty on, for neglect of duty, &c.,.. . 179 to notify local and general assessors, . 179 Collectors how appointed, 168 to be notified 169 to receive roll from clerk of peace . . 172 to^i-n clerk to deliver roll of poor rate to 172 of poor rates how chosen, remunera- tion, &c., . . , 173 duty of, 172 as to non-residents, 172 duty as to non-paid taxes 173 duty where owner unknown, 173 duty to levy waiTants on lands, &c., of non-residents, 173 to give public notice of sale 173 to return wan-ant when imable to col- lect 174 general return of warrant 174 to pay over-monies received and return defaulters, 173 commission to, 176 their duty, fine, &c., 176 Constables general warrants directed to, 175 fees thereon 175 duty on warrant 176 ■ Districts where amount not paid by to be added next year, 179 poor — Cumberland and Queens, .... 179 Exemptions what property exempt from taxation, . 169 Eorfeitures on assessor refusing to act, 169 on collector 176 on other officers, 178 how collected 178 on clerk of peace, neglect of duty, . . . 179 Eorms of assessment roll, collectors roll, &c., 160-1-2-3 Grand Jury to nominate treasm-er 166 may assess for general pui-poses, ... 167 may assess pay for themselves, .... 167 may assess simis for look-up-houses, &o., 167 on refusal of, to present for certain pur- poses, sessions may amerce, ... 168 to nominate assessors and collectors, . 168 treasurer's account to be laid before . 177 meaning of word 179 GENERAL INDEX. 783 ASSESSMENTS, COVNTY--conUmiecl. Halifax, City of exempt in certain cases, 179 Justices petition of twenty rate payers certified by 167 two to issue wan'ant against property of non-residents, 17;> certificate of where no property, . . . 173 sliall issue general warrant of distress, wlien, 175 fees, 175 to issue warrant to take body, when, . 176 special wari'ant, when granted, .... 177 who may direct collection of penalties, 178 travelling expenses of to be paid by county, 179 Iiimitation of Actions within six months 178 not to be brojight against collector when rate quashed, 178 Overseers of works and distributors, to render accounts to sessions, &c., 178 PoE tax proportions of &c 170 amount on each individual, 170 Poor rates how^made from assessors' roUs, . . . 171 assessors' to furnish rolls to poor clerks to make, 172 roll of to be delivered to collectors, . . 172 collectors of, how chosen, 172 assessors in certain counties to furnish roU of '180 districts for ; In Cumberland and Queens, 179 Presentments for general purposes 167 for local purposes, 167 Property what liable to taxation 169 definition ol words, "real and personal," 169 Sessions to appoint county treasurers, 166 presentments confirmed by 167 power to distribute presentments for local purposes 167 power to amerce for certain purposes, 168 to appoint assessors and collectors, . . 168 to pay assessors' compensation, .... 169 special may fill vacancies, 169 may grant warrants for sale of lands of non-residents 174 on neglect of,— supreme court may amerce, 176 ASSESSMENTS, COUNTY— continued. Sessions to direct time for and audit treasurer's account, 177 appeal to; proceedings, 177 overseers of works to account to, &c., . 178 shall make compensation to ofiicers,. . 178 moaning of word " court of," 179 Sheriff warrant to sell lands of non-residents, IH his duty on sale, proceedings, &<■., . . 174 Treasurer how appointed, 166 salaiy, 160 may appoint deputy, 167 how vacancy supplied, 167 surplus of sales paid to . •. 174 shall keep record of siu'plns 174 record to be laid before sessions, ... 174 surplus monies, how disposed of, . . . 175 to pay over poor rates of non-residents, 175 collectors to pay over to, &c., 173 monies due to, and payable by coimty, received and paid by 177 to makeup his accounts, when, &c., . 177 to make repayment on appeals, .... 177 "Warrants to sell property of non-residents, . . . 173 levy of same, 173 piu'chasersright of enby after sale, . . 173 sale under same, 173 return of, where no goods, 174 to sheriff to sell] lands, 174 to be issued by clerk of peace, .... 171 sale under by sheriff, 174 general when to issue, 175 constable's duty on, 176 separate warrant to take body, .... 176 when-to be executed by sheriff, .... 176 AS^ESSOKS. (See County Assessments,) 166 ASSIGNMENT. of choses in action, 442 of interest in lands, how to be made, . . . 411 trusts, how to be made, 412 ships or vessels 413 for general benefit of creditors, 413 ASYLUM. ( See Lunatic Asylum,) 634 ATTACHMENT. (See Absent or Absconding Debtors,) .... 606 (See Registry of Deeds,) 742 ATTOKNIES. (See Barristers and Attornies, 479 (See Costs and Fees,) 647 B. BAIL IN CIVIL ACTIONS. affidavit for holding to, how and before whom made • 516 process for holding to, 516 how taken, 517 wrong name of defendant in process or affi' davit, effect of, 517 when to justify, » 543 how to justify when resident at a distance, 543 may render defendant at any time, .... 543 BAIL IN CEIMINAL CASES. for what offences maybe taken by justice ot peace, 714 after commitment, 715 recognizance of, how and in what cases may be taken, 713, 713 how forfeited, 713 how transmitted, 713, 715 for treason or felony punishable with death, by whom taken, 715 784 GENERAL INDEX. BAIL BONDS. form of, .'562 how assigned, ^ .543 ill what am omit to 1)0 tnkei) 517 BAKTK. (See Simngs Bank,) .160 BABTK NOTES. . to 1)0 payable In gold or silver, ."21 holder entitled to twelve per cent per an- mini interest after demand and re- fusal, 333 transferable, by delivery only, 323 legal tender by holder to maker, 333 not to be issued under twenty dollars, under penalty 333 not to cxtpnd to trcasuiy notes of province, bank cheques, &c., 333 SAKKISTBBS AND ATTOKNIES. Admission of regulated, 470, 4S0 (lualifications rerjnisite for, . ... 480 Attorney to be duly admitted before practising, . 47!) notice of application for admission as, . 470 term of service previous to admission as, 480 examination previous to admission as, 480 qualiiication requisite for admission as, 480 oatli of, upon admission 480 Colonial, or of Great Britain and Ire- land, when entitled to admission as, ... 480 of supreme court, when entitled to ad- mission as barrister, 480 not to allow any person but articled clerk to sue out process or defend action in his name, 480 Barrister to be duly admitted before practicsing, 470 notice of application for admission as, 479 not to receive articled clerk, until after exammation, &c ISO term of service of clerk, ivith prac- tising, 479 fit Great Birtain and Ireland, when en- titled to admission , 480 Colonial, when entitled to admission, . 480 wlicn attorney of supreme court may be admitted as, 480 privileges and precedence of 481 not to have more than three articled clerks at one time, 481 practising, only to take clerks, 481 being notary public, may take acknow- ledgments of married women; and administer oaths relative to execution of deeds, &c. ; to same extent as justice of peace, . . ..481 Clerk not to be articled until after examina- tion, 480 examination of, as to educational quali- fications, 480 examination of, rules for, to be made by'judges, . , • 480 term of service of, preparatory to ad' mission as attorney, 479 service of, time from which to be rack' oued, .| 4S0 BAKBISTEKS, SiC^cmiinued. Clerk qualifications of, requisite for admission as attorney, 480 to be articled to practising banister only, 481 Colonial attorney, when entitled to admission, . 'ISO barrister, when entitled to admission, . 480 Examination of clerk previous to being articled, . . 480 previous to being admitted as attor- ney, 480 rules for, to be made by judges, .... 480 Great Britain and Ireland attorney of, when entitled to admission, 480 barrister of,when entitled to admis- ion, 480 Judges may make rules for cxahiination of clerks applyuig to be articled, . . . 480 Notary Public being a • barrister of supreme court, may take acknowledgments of married women, and administei- oaths relative to execution of deeds to same extent as justice of peace 481 no fees for such service to be taken by, 481 Oath of attorney, 480 Qualiiication of clerk, requisite for ndmission as at- torney. 480 Student qualitieations of, requisite foradmission as attorney, 480 BASTARD CHILDKEN, MAINTEN- ANCE OE- Appeal from order of Jiliation, 358 Birth oath in ordinaiy causes before, .... 3.37 hearing after 3o7 reputed father to give bond till after, . 3"i7 infoiTuation witliin three months after, &c., "A Bond reputed father to give, till after .the birth, &c. i . 357 reputed father to give, to fulfil order, . 358 on appeal, 358 may be sued by overseers 359 Father to be arrested by warrant, 357 "when brought before justices to give bond 357 may give evidence on exammation, . . 357 justices may discharge, or make order, 357 when not found, warrant may be in- dorsed, 357 shall give bond to fulfil order, &c.| . . 358 when concealed, order may be made in his absence, 358 bond in such case, 358 bond of, on appeal, 358 oYCrsegrs may sue on bonds of, ... . 350 gbneeAl index. 785 BASTAEI) CHUiSEEBT, maintebt- AWCE OF^contimied. Forms of warrants, orders, &c., . . 359-00-61- 62-6S-6i Justices one may take oath before biitli, . . . . 3B7 may require bond, 357 two to issue warrant and make order after the hirth, . ■ • 337 two may hear evidence and make order, &c 357 justice of other county may indorse warrant, 337 may take oath after the hlrth, 358 may make order in absence of father, . 358 may confirm, reverse, or modify order, 338 may direct that mother maintain child, 359 Motlier oath of before birth, 357 maybe apprehended by warrant and examined, 357 oath of after the birth, 358 may appeal, 358 may be ordered to support child,. . . . 359 Overseers warrant to issue on application of, . . 357 may apply after the bu'th, 358 bonds to be sued by, 359 Warrant When Issued before the birth, 357 when issued after the birth, 337 may be endorsed by justice of other coimty, '.357 when issued within three months after thebirth 35S BAWDY HOUSES. punishment for keeping, 600 BBAES. (See Ifoxious Animals, J 360 BErrEPIT OF CIiBEGY. abolished 685 BEEF. \ (See Inspection of Frovisions, cfc.J, . . . 328, 330 BIGAMY. pxmishment for, 601 oases excepted, 601 penalty and pimishment for illegally (ffficiating at ceremony, 661 EILIiETTIIirG OP TBOOPS AND MILITIA. troops and militia how billetted, . . . 147 officer shall give certificate, &c., .... M7 fines for false certificates, 148 expenses how provided for and drawn, 148 expenses not provided for to be paid by officer, I ...... . 148 farther provisions for billetting troops in certain cases, 148 two justices may order baggage con- veyance, 148 rates of charges for, 148 fines for refusal to furnish conveyance, ;148 fines on officers for improper conduct in regard to conveyance, ...... 148 horses and carts exempt when actually employed, 149 99 BILLS OF EXCHANGE AND PRO- MISSOEY NOTES. damages and interest on protested bills of exchange, 319 promissory notes assignable and en- dorsable as inland bills of ex- change — who may bring action thereon, 319 notes not payable in money presiimed to be given for valuable consider- ation, but not negotiable — how sued for and recovered, 319 amoimt of such note recoverable with- out damages,' 320 pleas to actions on, 527 stay of proceedings on iiayment in ac- tions on, 547 loss of, not to be set up in actions on, proviso, 534 BILLS OF SALE, PEEVENTION OF FEAUDS BY SECEET- bills of sale or sworn copies to be filed with registrar, 412 to take effect only from datfe of filing, . 412 defeasance to be filed 413 when filed to be numbered and indexed fee for inspection, 413 discharge how entered, 413 registrars fees, 413 meaning of terms, 413 apparent possession, what 414 BIEDS AND ANIMALS, PEESEE- VATION OF— l^artridge, snipe, or woodcock, not to be IdUed, sold, bought, or in pos- session of any one betTveen 1st March and 1st September, .... 304 offender to forfeit $2 for each offence, . 304 moose and carriboo, restrictions as to number killed 304 cow moose not to be killed between 1st Januaiy and 1st September, . . . 304 no trap or snare allowed for moose or carriboo, 304 moose or carriboo not to be killed be- tween 15th February and 1st Sept., nor bought or possessed between 1st March and 1st September. . . 304 flesh to be carried out of woods, within what time 304 penalty for violation of preceding^sec- tions,— how recovered, 365 in default of payment offender may be imprisoned, 365 pheasants not to be killed, sold, &c., or dead pheasants had in possession 365 dead pheasant in possession of party, prestimptive evidence of guilt, . 305 ■ otter, mink or musquash, not to be killed between 1st May and 1st November, 305 other animals valuable for fur, when not to be killed, 365 penalty for violation of three preceding sections, 305 sessions may make orders for preserva- tion of moose, and afix penalties for breach, 305 786 GENEKAL INDEX. BIRDS AETD AiiTIMALS, PBESEB- VATIOM" OF— continued. Snares maybe destroyed by any person, 365 ivhcn lines unpaid, offender may be im- 365 prisoned, 365 omier of dog, accxistomed to worry sheep, &c., liable to owner, and snbjeot to penalty, 365 oysters placed in beds for propagation, not to be disturbed, 366 penalty for breach of preceding section, 306 penalty recoverable by any jjcrson for use of prosecutor, 366 sessions may reguiate taMng of oysters generally, and impose penalties not exceeding $i for each offence, 366 penalties reooyerable by any one for his own use, 36G BIRTHS. (See Bastard Children,) 357 (See Marriages, Registration of, cfc.,J .... 414 BLASTIBTG ROCKS. (See Gunpowder,) 3S8 BOARD OF HEALTH. (See Health, Board of) .... . 198 BOARD OF REVEWITE. (See lieven-ue. Board of) 19 BOARD OF VSTORKS. may make rules for management of, and may appoint visitors for, penitentiary 87 may contract for maintenance, &c., of pri- soners in penitentiary, 87 must report annually as to iJenitentiary, . 88 may make regulations for government of Sable, St. Paul, and Soattarie islands, 91 may act as justices on above islands, ... 92 BOIiTDS OF PUBLIC OFFICERS. to be in name of her majesty when not otherwise directed, 4 BOBTFIRES. (See Firearms a^ul Fireworks,) 387 BOOKS. (See Copyright,) 408 BOOKS ABTD PAMPHLETS. (See Post\Offlce,) 73 BOTTOMRY. (See Znieresi J— Appendix, 3 ....... . 741 BOUH"DARIES OF COUBrTIES, TO-WETSHIPS, &0. to remain as established, 161 when lines of, uncertain, governor may order survey, 161 notice to be given to oustos before survey, 161 . duty of sessions, 161 costs of survey, how paid, 161 expense of nominees a county charge, . . 161 line how decided, 161 BRANDS. for marking animals, 280 BREAD. (See Inspection of Provisions,) 331 BRIBERY. persons guilty of, 9 penalties for, 10 costs of prosecution for 10 limitation of actions for, U seat of candidate guilty of, vacated, ... 11 foiin of action for, H BRIDGES AJSTD PUBLIC tLAHDIUGS. sessions shall have control of public wharves, landings, drawbridges, and certain other bridges, may regulate same, penalties, 218 not to affect rights conferred by act of in- corporation, 2-17 di'aws to be made in bridges by sessions in presentment of gi'and jury, . . 249 BUGGERY. punishment for, . . • G68 BUILDnSTGS. (See Jails and County,) 183 BUOYS AETD BEACONS. (See Pilotage,) 304 BURGLARY. punishment for, 672 (See Sanitation ; Offences against the) . . . 672 BURUrBrG "WOODS & MARSHES, . . 389 BYE-LAWS. l^ower to make, alter, and revoke, 4 repugnant to law, 4 c. OABTDIDATES. (See ^Zeciiom— Appendix,^ 760 CASTING A^WAY OR FIBIBTG VES- SEL. punishment for, 678 CATTLE. definition of term, 082 punishment for stealing, 675 killing or maiming, . . . 679 ill-treating, 679 (See Iitipoundlmg of Cattle,) 187 (See Stray Horses and Cattle,) 392 CATTLE, INFECTED, &0., GOING AT LARGE- sessions to make regulations respectmg, . ,393 penalties for breach of same, 393 imprisonmcntforwant of goods to pay fine, 394 CENSUS AND STATISTICAL INFOR- MATION. board of statistics, how appointed 154 to prepare and print forms 154 to appoint enumerators 15^ duties of enumerators, 154 enumerators may demand answers from heads of families, &c., 154 penalty for refusal or false answer, .... 154 on enumerators for non-performance of duties, 254 offence where not prescribed ii misde- meanor, jjg goyemorin council may fix time for future census, X55 governor in council may frame regulations, prescribe forms, 155 GENERAL INDEX. 787 CEBTLFICATES OP PUBLIC BE- COEDS. pimishmeut for giving false, 664 CBBTIOKABI, \FBIT OF— before writ Issue, bail to be] fllcii and en- dorsed 024: court may enquire anew into facts, and order trial by jury, 021 m civil suits, cause conducted in name of real parties 024 CHUiDBXElTH. pimislimeut for concealing 605 CHIMNEY S'WEEPEES. CSee Fires and Firewards,} 384 CHEISTMAS DAY. act to be done on— to be done the day after, 4 CHUBCH OF ETSTGHiAHD. licensed clergymen only to officiate, .... 190 no license to bo rofased withoiit causa shewn in "writing, 190 parishes as established to remain— new parishes may be allotted, and jiarishes may be divided, 190 church-wardens and vestiy hov/ elected, and their powers, 190 to be bodies corporate, their powers .... 191 who shall bo deemed pew holders, 191 their power to gTant money — mode of as- sessment, &c., 191 church-wardens and vestiy may abate or compromise assessment 191 meetings for business, when and Jiow caUod, 191 church-wardens, &e., refusing to act, others may be appointed, 192 glebe lands, how sold or leased, 192 CLAPBOAEDS. (See Bispection of, (-fc.,) 339 CLEEKS OP THE CBOWET. . (See Protlwrwtaries,) 164 CLEEKS OP LICEETSB. (See Intoxicating Liquors,) 61 CLEEKS OP THE MAEKET. (See Inspection of Fromskms, <-fc.,) .... 331 (See Public Markets,) 381 (See Weiffhts and Measures,) 341 CLEEKS OP THE PEACE. how appointed and sworn, 163 removal of, and how vacancy filled, .... 163 to hold office imtil successor appointed, . . 163 to keep books of orders, rules, &c., of ses- sions, 1C3 open to inspection, . 163 to make annual return of convictions, &c.,. to board of statistics 163 penalty, 163 no fees except in cases of license, 163 may appoint deputies ivith consent of cus- tos • 163 to notifyjassessors and collectors 169 make out county rates, and when, . . . 172 deliver assessment roll to collectors, . . 172 enforce penalties under chap. 45, ... . 179 post lists of township officers, 186 post notices of new roads or alterations, 223 CLEEKS OP THE FEACE— continual to make returns to provincial secretary's office relative to highway labor, 23o prosecute surveyors of highways for neglect, &c 230 fees for services imder chap. 70, " 6f rail- roads," • 259 CLOSIETG OP BOADS. (See Roads, Closing of,) . . • . ■ 248 COAL MINES. (See Mines awl Minerals,) 108 COAL AND SALT. (See Inspection of, ^x.) 335 COAST PISHBEIBS. (See Fisheries ; Coast and Deep Sea,) .... 367 COASTIETG OKT HIGHWAYS. sessions may malse regulations respecting. and impose penalty, 394 parents, &c., responsible for penalty, . . . 394 COASTIETG VESSELS. exempted from operation of chap. 75, . . . 289 COIBT AWD BULLIOBT. may be landed without cntiy or pemiit, . . 37 (See Currency,) 32O coin-. (See Forgery, and OJ/'ences relating to,) . 677 COLLECTOES OP CUSTOMS. (See Officers of Customs,) 29 COMBIBTATIOBTS OP "WOBKMEET. penalty for interfering with employers and workmen with regard to wages, work, &c., &o., GG7 persons exempted from operation of chap- ter, 068 offenders may be compelled to give evi- dence, and indcnmifled, 668 lirocecdings before a justice of the peace, . 669 witnesses how summoned, penalty for not appearing, 669 forms to be used, 570 appeal, proceedings, &c, , 670 schedule, C'71 COMMISSIOBTEBS. for expending road monies — (See Great Moods,) 219 removing obstructions from rivers— C See Rivers,) 339 taking affidavits— C&e Costs and Fees,) 644 (See Supreme Court,) 510 of crown lands— fS'ee Crown Lands,) . . . 113 mdi3na—( See Indians,) 205 raHvoads— (See Railroads,) 251 sewers — (See Sewers,) 271 streets— ('5'ee Streets,) 231 schools — (See Puhlia Instruction,) . . . 210 pilots— ("iSee Pilotage,) 304 COMMISSIOMTIIES WITHOUT THE PEOVIBTCE. appomtment of, their powers and duties, . 612 suspending clause 613 OOMMOJSrS. sessions to have management of, 279 chapter not to extend to city of Halifax or commons rcgidated by special acts, 370 788 GENERAL INDEX. OOMMON TIELDS. lines of, how run and kept up 279 proprietors to meet annually and make re- gulations for, '. 280 regulations to be recorded— book sufficient evidence, 280 fine for non-compliance with regailation,. . 280 proceedings to compel erection offences, . 280 brands of cattle to be recorded, 280 fine for second entry of same mark 280 fine for imauthorized or coimterfeit brand, 280 proceedings to compel proprietor of adjoin- ing lands to repair fences 280 proprietor desiring to have land separately fenced shall bear whole expense, 280 committee of management how apiDointed, their duty, 281 rules as to assessments for various pur- poses, >;i section 12 not to extend to Grand Pre or Wickwu'e dikes, 281 collectors appointed by committee, their- duty 281 allowance to committee included in assess- ment, ..281 COMPAKTIES IlSrCOKPOSATED OUT OF PKOVIBTOE. doing business in provmce by agents— how to be sued 008 agent allowed time to communicate with principal 608 judgment against^company, cite .—liability of agent to respond— agent if re- quired to disclose on oath 608 agent may be examined on oath after judg- ment, ..... 608 plaintiff may proceed by attachment, . . . 608 mode of proceeding in such case, 609 other remedies not affected by chapter, . . 609 COMPABTIES, JOIIVT STOCK, — Appendix, .... 750 COlSrGKEGATIOErS. (See Meligious Congrcgaticms, c]-c.,) .... 192 COKTSTABLES, PBOTECTIOU OP- demand of perusal and copy of warrant to be served on constable before action brought G29 after demand and compliance, if justice be not joined in action, on proof of warrant, &c., judgment to be given for constable although jus- tice had not jurisdiction 029 in joint action against constable and jus- tice, on proof of wan-ant judg- ment for constable, and if verdict against justice full costs against justice, including costs of consta- ble, 629 limitation of action against constable, &c., 629 COWTAO-IOUS DISEASES. (See Boards of Health,) 198 COHTEMPT OP COtTKT. in vacation, how punishable CdS (See Witnesses, Evidence, ^-c.,) 572 COWTBACTS. for goods above forty doUaxs, how regulated, 411 where time of performance exceeds ouc year, , , 41J COITTBAOTS— COTrftotwxi, (See Factors and Agents,) 317 (See Frauds and Petyuries,) 411 COIVTBOVEETED ELBCTIONS. (See Flections, Controverted,) 12 COBTVICTS. (See Penitentiary,} 87 COPAKCElSrEES. (See Partition of Lands,) 597 COPPEB COIlSrAGE. (Sec Currency,) 321 COPXBIGHT, LA"W OP— copyrights of authors, how secured 400 penalties for infringing copyrights by print- ing or importing works, 406 penalties for infringing copyrights by im- portation, 407 printed copy of title of all works, &c., to be registered in provincial secre- tary's office before publication, duty of provincial secretary on such registry, 407 penalty for illegally inserting an entry as registered, 407 limitation of actions, 408 printing or publishing any manuscript with- out author's consent, actionable, 408 copies of all works, &c., to be furnished to legislature by proprietor 408 all books admitted duty free, exceptreprints, copyright whereof is protected by acts of imperial parliament, '. . . 408 duty on importation of reprints boxmd in covers, of which copyright pro- tected, to be 20 jjer cent adva- lorem, not to extend to news- papers, &c., how duty disposed of, 403 fine for improperly importing, selling or •having dutiable reprints, how re- covered and applied, ...... 408 reprints imported to be stamped, &c., . . 408 COKD"WOOD. (See Inspection of, c]-c,,) 336 COEBT. ^ (See Inspection of Provisions, M how discharged, - • • 745 certificate on, evidence of, registry of, . 745 to bind lands from date of registry, . . 745 Bonds to be given by regisferar, 742 Books of Entry double index of, to be kept, 743 Books of Registry to be furnished by registrar, 743 double index of, to be kept, 743 safe keeping of, provided for 743 deeds, &c., to be entered in, 743 of grants, to be furnished to registrar, . 743 contemporaneous, may be kept at Hali- fax 746 to be kept in safes except in Halifax, . 746 penalty on registi-ar for not so keeping, 746 Certifloate of registry on deeds, to be evidence of registry. . 744 Declarations made in Great Britain and Ireland and duly attested, sufficient to register deeds, 746 Deeds books of entry of, to be kept, 743 books of regist.'y of, to be kept 743 to be registered in county, &c., where lands lie 743 to be registered in order as proved, . . 744 to be copied so as to be transcripts of originals, 743 how proved within the province, ... 743 how proved without the ijrovince, ... 743 how registered where subscribing wit- ness dead or absent, 743 held registered from tune of being lodged and proved 744 executed under power of attorney, re- gistry of, when valid, 744 witness compellable to prove execu- tion of, for registry, 744 certificate of registry on, to be evi- dence of registry, 744 not registered, to be void against sub- sequent purchaser, &c., for valua- ble consideration, who shall first register his deed, 744 not registered, void against judgment creditorfirstregisteringjudgment, 745 may be registered on declarations made in Great Britain and Ire- land, and duly authenticated, . . 746 Fees of registrar of deeds 054 of registri^r for recording grants, ... 746 DEEDS, REGISTRY OF, &,c.—amUnued. Grants of land since 31st March, 1834, to be re- corded in registry of deeds, .... 745 books of registry of, to be furnished to registi-ar, 745 duijlicate originals of, to be signed by provincial secretary, 745 fee of registrar for recording 746 Incumbrances afibcting .lands not to be tacked, 744 Index of registry books ; safe keeping of, . . 743 double, to be kept of books of entry, . 743 double, to be kept of books of registry, 743 Judgments books of entry of, to be kept, 743 books of registry of, to be kept 743 where to be registered, 743 how registered 745 when held registered 743 not to be tacked, 744 how discharged, 745 certificate on, evidence of registry of, . 744 docket of, contents of, 745 to bind lands from date of registry. . . 745 Leases for more than three years to be regis- tered, 715 Mortgages not to be tacked, 744 how discharged, 744 release of, how recorded, 745 not registered, void against subsequent purchaser, &o., for valuable con- sideration, first registering his deed, 744 not registered, void against judgment creditor first registering judgment, 745 Oaths of execution of deeds within province, by whom administered 74o of execution of deeds without province, by whom administered, 743 where witnesses dead or absent from the province, 743 Penalty on registrar for not keepmg books in safes, 74B Plans annexed to deeds to be copied in regis- ti-y books, 743 duplicate, of grants to be recorded, . . 746 of partition of townships to be trans- mitted to registrar of deeds 746 Power of Attorney when deeds are executed under, must be I'egistered, 744 Preservation ofbooks provided for 743 Proof of deeds within province, 743 without province 713 where witnesses dead or ab- sent from province, 743 Registrar of Deeds how appointed, 743 piay appoint deputy in case of absence, &c 74^ 796 GENERAL INDEX. DEEDS, BEOISTKY OP. &o.—conUniiea. HeKistrar of Deeds to give bonds, 742 to lUrnish books for registry, 74'i to provide suitable place for custody of same, 743 may administer oath of execution of deeds, 743 may register deeds on proof of death or absence of subscribing witnesses, . 743 may administer oath as to same, ... 743 to keep double entry of deeds proved, 743 ■ to keep double entry of deeds recorded, 743 to register grants 745 in Halifax may keep contemporaneous books, 746 plans of partition of townships to be transmitted to, 746 fees of, 654,746 penalty on, for not keeping books in safes 746 Release of Mortgage how recorded 745 Safes registry books to be kept in, except in Halifax ., 746 Witness compellable to attend, or produce deed for proof and registry, 744 DEFIITITIOM' OF TEKMS IIT TITLE XLI. terms in this title defined, 680 "officer," 681 " woman," 681 *' grievous bodily harm," 681 "writing," 681 " testamentary instmment," 681 '• moveable thing," 681 " valuable security," 681 " muniment of title," 682 " cattle," • 682 term "cattle" to mean living animals named, luiless otherwise provided, . . 6S2 " night time" and " day tune," 682 terms "imprisoned" and "imprisonment," to mean imprisonment ^in provincial penitentiary 6^ custody or possession imder title forty-one ; meaning and application of terms, . . 682 terms defined in title to be imderstood in defined sense, unless otherwise pro- vided, 682 DESCEBTT OF KBAL AWD PEE- SOBTAL ESTATE.— (Appendix) Advanoement how considered on division, 749 in real estate, how considered, .... 749 what gifts, &c., held to be 749 value of, if stated by intestate, con- clusive 749 among grandchildren, how considered, 749 Children advancement to, by intestate, how con- sidered on distribution, 749 posthumous, how provided for when testator has made no provision, . . 749 Deerees of kindred bow computed, 748 748 74S 748 DESCEUT OP KEAL AND PBK- SONAL EST ATTl— continued. Descent of undevised personal estate, 749 Descent of undevised Eeal Estate where deceased leaves issue, 747 where deceased leaves no issue 747 in other cases, and among collaterals, . 747 in case of unmarried minor children leaving brothers and sisters or their issue how property divided in last case. Distribution of personal estate of intestate, . advancement to children, &c., how con- sidered on, 749 Dower lands held by widow as, how divided, 750 Estates held by widow as dower, how divided, 750 not affected by this chapter, 750 undevised, to be distributed as if testa- tor had died intestate, 750 Gifts or Grants what held to be advancement, 750 Intestate leaving issue, descent of real estate of, 747 leavmgno issue, descentof real estate of, 747 leaving no issue nor father, descent of real estate of, 747 leaving no issue nor widow, descent of real estate of, 747 leaving no issue nor widow descent of real estate of, among collateral kin- dred 747 leaving children, or one child, and issue of others, and surviving child dies unmarried and under age, leaviug brothers and sisters or thfir issue ; descent of real estate of, 748 > leaving no kindred, widow to inherit, . 748 lands held in trust for, descent of, . . . 748 personal estate of, how distributable, . 748 wearing apparel of, how distributable, 749 posthumous children of, provision for, 749 Kindred degrees of, how computed, 748 intestate not having, widow to inherit, 748 PersonaJ estate of Intestate, how divisible, 749 advancement of, to children, how con- sidered in distribution 749 advancement of, to grandchildren how considered 750 undevised, to be distributed as if tes- tator had died intestate 750 Posthumous children provision for where testator has made none 749 Beal estate def cent of, where intestate leaves issue, 747 descent of, where intestate leaves no issue, 747 descent of, in other cases and among collaterals, 747 descent of, in case of unmarried minor children leaving brothers and sisters or'their issue 74S (Uvisiou of same_in last case, 74S GENERAL INDEX, 797 DESCENT OP BEAL AND PEK- SONAIi ESTAT^E— continued. Eeal estate held in trust for deceased, how distribu- table, 718 advancement in, to chUdren, how con- sidered on distribution, 7i9 . advancement of, to grandchildren, how considered, 750 nndevised, to be distributed as if tes- tator had died intestate, 750 Eule of descent of undevised real estate where deceased leaves issue, 747 whore deceased leaves no issue, . . . 747 in other cases and among collaterals, . 747 in case of unmarried deceased minor children, leaving brothers or sisters or their issue 748 for division of property in last case, . 748 Value of advancement if stated by intestate to be conclusive, 749 ■Wearing apparel of deceased, how distributed, 749 ■Widow * where no issue, to take half the real estate 747 where no kindred, to take all the real estate, 748 where no kindred, to take all the per- sonal] estate, 748 allowance to for mamtenance out of personal estate, 748 Umds held in dower;by, how divided, . 750 DESECKATION OP THE SABBATH, pimishment for 659 DESEKTEBS. CSee Army and Navy, Offences relating to,} . 035 DESTBOTING BEACONS, ^0. punishment for 680 desteoit:ng wrecks and wrecked goods, 678 trees, &c., in gardens, streets, &c., .... 678 ornaments on public buildings, 679 or damaging articles in museum, 679 DESTEUCTION OF NOXIOUS ANI- MALS, 366 DETAINEE. (See Forcible Entry and) 604 DE-VTSES. (See Wills,; 397 DIKE LANDS. (See Sewers, ^c.,J 271 DISABILITIES, EXECUTIVE AND LEGISLATIVE— ofSces which create disability, 5 how removed 6 when seats vacated by, 6 penalties incurred by disabled persons sit- ting or voting, 6 appointment, &c., of disabled persons void, 6 DISABILITIES, &0.— continued. seats of departmental officers when not vacated by resignation, DISEASES. (See Board of Health,) . DISOEDEELY DEIVING. penalty for DISOEDEELY HOUSES. punishment for keeping, DISTILLEEIES. distilling unlawful, penalty, places fitted or suspected to be Utted for dis- tillation, may be entered and searched, machinery disconnected and seized, . . liquors forlcited, porter, ale, beer, cider, not included, . . . DISTEESS EOE EENT. (See Rent, Distress for,) DISTEICT. meaning of— f See Elections,) DIVOECE. (See Marriage, tfc. ; Court of,) DOCKET. . (See Pleadings, i]'C., in Supreme Court,) . . DOCUMENTS. costs of proving— CSee Evidence,) DOGS, TAXATION OP— sessions may make regulation resioectlng, . found chasing sheep may be killed penalty upon owners, &c DO^WEE, "WBIT OP— widow entitled to sue for dower within one month after demand, if not assigned, . •\rat to be in form heretofore Used, .... damages may be assigned for withholding dower form of writ of seizure to be as heretofore, mode of setting forth dower, when property not divisible by metes and botmds, widow to be endowed in special manner, widow not to commit or suffer waste, but keep premises in repair, 198 243 660 58 58 59 59 5U 613 771 446 514 575 395 395 395 596 596 596 596 596 597 597 DEA^WBACKS. (See Goods, Exportation of,) 49, 55 DEUNKENNESS. penalty for, 660 DURATION OP GENEEAL ASSEM- BLY 6 DUTIES. (See Customs Duties,) 18 (See Excise Duties,) 26 (See Light House Duties,) 59 D"WELLING HOUSE. punishment for breaking into, . 673 pimishment for setting fire to, any person beiug therein, 673 punishment for damaging with powder, &c,, any person being therein, 673 798 GENERAL INDEX. E. EDUCATION. ( See Public Instruction.) 208 EJECTMEJiTT. (See Sale of Laiuls under Foreclosure of Mortgages,) 403 (See Supreme Court, Pleadings, ^x.,) . . . . 536 BLEOTIOWS, COWTKOVEKTED- Bond given on petition, 12 Committee how drawn 13 wlio ineligible, 13 inemlier, how and when excused, ... 13 how struck, sworn, &c., 13 how struck in undefended cases, ... 14 chairman how selected 14 powers and duty of, 14 may report specially 14 niemher ahsenting himself, 14 when dissolved and another chosen, . 14 evidence considered by new, 14 chairman to report disohedience , . . . 15 may clear the room, 15 majority to decide, 15 chairman to have additional vote, ... 15 oaths, how administered by 15 effect of prorogation, 15 to report petition or opposition frivo- lous, / 15 Expenses when recoverable 15 Iiow taxed and recovered, IS-Ki party paying may recover proportion, . 10 Petition time for receiving, 12 proceedings at time for considering, . . 12 Be turn proceedings on petition against, ... 12 proceedmgs on iindefended return, . 12 Sttting Member meaning of word, 10 how committee sti'uck, when lie does not appear 14 notice given to 12 proceedings where he dies, or gives notice, &c., 13 ELECTIOlSrS, COKKITPT PKACTIOES AT— expenses of entertainment at elections not recoverable, 8 penalty on candidate furnishing liquors, . 8 persons deemed guilty of bribeiy, .... 9 penalty for bribery, 10 misdemeanor, when guilty of, . ...... lO court may order payment of costs, .... 10 prosecutors to enter in recognizance, other- wise no costs • 11 limitation of actions for bribery, ii seat of candidate guilty of bribeiy vacated, H form of action for bribery, 11 chapter, how cited, 11 meaning of words in chapter, .,,.,.. n BLEOTIOITS OP MEMBEBS OP GEW- EEAL ASSEMBLY. Chapter 28, Acts of.1863. Appendix. Assessors shall deliver assessment roll, &c.; to revisers, 750 form of roll, 756 penalty on, for neglect or misconduct, 758 Candidates proposed at sheriff's court, &c., .... 780 may withdraw, when, 761 qualification of . 761 declaration of form of, 761 declaration of, by whom and how sub- scribed, 761 when qualification not specified, candi- date disqualified, 761 votes not received, &c,, when name not entered, . . , 761 may nominate inspector agent andjelert, 763 Corporate Bodies not entitled to vote, 757 Electors * qualification of, 756 non-resident, lists of, 758 may make declaration for candidate, . 761 to vote in one district only 762 must vote where resident, &o., .... 762 non-resident to vote where qualified, . 763 to state name and residence, &c., before voting, . . • 763 oaths of, 764-5 penalty on, for improper voting, .... 765 if refuses oath, name to be expunged, . 766 Electoral Districts to remain as at present, 759 Evidence • parol, of election sulKcient, .... 769-71 Firms when names of each member of to be inserted in list 757 when dissolvedpartners entitled to vote, 763 Forms" of assessment roll, 756 of notice of meeting of reviser, .... 750 of notice of names to be aded, &c., . . 757 of sheriff 's oath— sheriff 's clerk's oath, . 760 of declaration of candidate 761 of oath of non-reSident elector 763 of oath of presiding officer 763 Of oath of poll clerk, .... ..... 763 of oaths of electors, 764-5 of oath of candidate's elerk 764 of oath of heir or partner or person as- sessed, 765 of oath of presiding officer at close of poll, 766 of oath of revisers 771 Halifax, City of revisers, &c., how appomted .756 register how made up for, &c., .... 759 Iiimitation of actions for 'penalties, &o., 770 Xiists to be made by assessors, &o. 756 GENERAL INDEX. 799 BLECTIOIT OF MEMBERS, &o.—conUmied. Lists reviaors to prepare, when, &c., .... 756 alphabetical to be posted, -when, &c., . 757 when ahd how to be corrected, .... 757 paupers to be struck out of, 757 of non-resident electors 758 when made up, signed and deposited, . 758 when previous year's to be iised, . . . 758 for Halifax city, how made up 759 before voting name of elector to be marked on 763 Oaths of sheriff and sheriff's clerk, 760 non-resident elector, 763 presiding officer, 763 poll clerk, 763 electors, 764-5 candidate's clerk, . . 764 teachers, &c... 765 heir or partner of i^ersons assessed, 765 presiding officer at close of poll, . . 766 by whom to be administered to presid- ing officer, 763 oaths, &c., made perjury 770 quakers may affirm instead of, 770 of revisers 771 Paupers to be struck out of list by rovisors, . . 757 Penalties on sheriff ; for refusing to administer oaths, '. 765 for non attendance of "witnesses, . . . 758 on presiding officer, 766 for breach of the peace, 767 on elector for improperly voting, . . . 765 on poll clerk for misconduct, 767 on sheriff for false return 768 how prosecuted, 769 judgment for, how levied 769 jurisdiction as to, evidend%, &c., . . . 769 on officers generally, how recovered, . 770 limitation of actions for, 770 appropriation of, 770 Perjury- declarations, &o, when false, considered, 770 Poll when and where opened, ....... 762 proceedings to take 762 no delay allowed in taking, '.■ 766 presiding officer's duty at close of, . . 766 proceedings at sheriff's court after, . . 768 Poll Boots votes for persons not candidates ex- plunged from, 762 to be prepared by clerk 762 names ot inspectors, &c., entered in, . 763 votes of presiding officers, &c., how entered in, 764 answers of electors entered in, ... . 766 to be sealed up, ; 766 penalty for altering or not returning, . 766 when to be opened, &c., by sheriff, . . 768 return of, how compelled, 768 proceedings where aU are not returned, 768 1>6U Cletks appointment of, 762 to prepare apoUbook 762 poll clerk's oath, 763 ELECTION OP MEMBERS, &o.-contmued- Poll Clerks penalty on for misconduct 767 when to act as presiding officer, .... 767 proceedings when incapable, &c., . . . /768 Presiding ofloer shall not receive vote for person not entered, 761 appointment of, 762 sheriff may act as, 752 to be furnished with register of electors, 762 must find name of elector on list,'. . . 763 proceedings of, on opening of i^oll, . . 763 oath of, 763 to appoint candidate's agent, &c., . . . 763 vote of, how taken 764 to prevent unnecessary delay, 766 IDroceedings on close of poll 766 penalty for misconduct of, &o., .... 766 made conservators of the peace, . . . 767 proceedmgs in case of incapacity of, . 767 proceedings against when poll book not returned by 768 penalty on, how recovered, &c 770 meaning of term, 771 Professors of Colleges when and how to vote, 764 oath of, 765 Quakers may affirm 770 Register lists when deposited, to be, 758 of previous year, when used, 758 for city of Halifax, how made, .... 759 expense of preparing, how paid, . . . 759 presiding officers furnished with copy of 762 name of voter must be found on. . . . 763 Revised Statutes— (Second series) chapters 5, 7, and 8, repealed 771 Revisal Sections how formed, 755 Revisers appointment of, 755 in city of Halifax, . . • 756 assessors to furnish copy of roll to, . . 756 to prepare and post alphabetical lists, . 756 notice of meeting of, * . 757 proceedings at meeting of, 757 to strike out names of paupers, .... 757 may summon witnesses, 758 expenses of, how paid, 759 Schoolmasters when and how to vote . 764 oath of, . 765 Sheriffs to ascertain non-resident electors, ... 758 list to be made up and signed by, . . . 758 ^vrits to be sent to, when, &c., 759 proceedings on receipt of, 759 court of, when to be held, 760 court of, proceedings at, 760 declaration of candidate to be present- ed tO) &c., . . . i . 1 761 to cause booths to be erected, ..... 762 to appoint officers, &c., to take poll, . 762 may act as presiding officer, ...... 763 to furnish register, &c., 762 penalty on for hot administering oaths, 765 to be conservators of the peace 767 800 GENERAL INDEX. ELECTION OF MEMBERS, Sec— continued. Sheriffs his court after poll, 768 penalty for making false return 768 not to examine books till all returned, 768 fees of, 769 penalties on— how recovered, &c., . . 770 meaning of word 771 Teachers when and how to vote, 764 oath of, 765 Terms meaning of, 771 Voters qualification of, 755 Witnesses may he summoned by clerk of peace, . 755 revisors may summon, 758 penalty fornou'attendance, fees, &c., . 758 ELECTIGETS. Chaptek 20, Acts of lS6i— Appendix. elections previous to 24th June, 1865 — how held, 771 preambles, 772 sections of act of 1863 repealed, 772 duty of sessions in counties in carrying out requirements of acts of 1863, 772 ELECTBIC TELEGRAPH FOR MILI- TARY PURPOSES. (See Telegraph, 4'c.,) U9 EMBEZZLEXCEBTT. punishment for, 676 ENGLAND, CHURCH OF 190 ENLISTMENT. (See Illegal Enlistment,) 657 EQ,UITY, PROCEEDINGS IN— Absence of equity judge, other judges to act, . . 432 Absent Defendant service on, how made in foreclosiu-e cases, 435 Answer hearing on plea and 433 Assignment of choses in action, assignee may size, &c., 442 assignor not to release after 443 notice of to be given, Ac, 443 defence against assignor available, . . 443 release by assignor, effect of, .... . 443 Causes of Action several may be united, . 4-34 Chancery j urisdiction given to supreme court, . . 432 assimilation of practice, . ■ 432 suits and records in, ti-ansfen'ed, ... 432 suits in, how eommenced in sxipreme court, * 432 foreclosure now on same principle as in com-t of, • ' ■ . 435 Choaea in Action assignee of, may sue, &c., . i 442 assignor not to release or sue, ..... 443 notice of assignment ofj &c., 443 assignor's release; effect of, ; 443 defence _against assignor, when avail- able,' 443 EQUITY, PROCEEDINGS IN-continued. Costs discretion of court regarding, 434 taxation of, 435 in suits for perpetuating testimony, . . 442 in equitable suits, 648 Default power of court in cases of, 434 Definition of Terms, 431 Demurrer demurrer by either party, 433 Deposition before commissioner, 441 to be certified, &c, 441 to be filed, &c 443 when may he used 443 Equitable Defence when may be put in 439 plaintiff may reply to [439 particulars in, 439 in ejectment 439 sale of premises may be ordered, . . . 439 when not available, 440 Foreclosure of Mortgages suits for — ^how brought 435 notice to absent defendant in case of, . 433 (See Sale of Lands under,) 403 Gazette Notice to absent defendant in foreclosui'e cases, 433 Guardians bond to be filed on sale of infants estate, 440 effect of conveyances by, 441 Hearing on ivrit, plea and answer, 433 Infants, Real Estate of— court may order sale of, &c., 440 effect of sales and conveyance of, . . . 441 application of proceeds of, 441 infant's interest in proceeds, 441 conveyai^ of, where, registered— effect of, &cT, 441 Injunction writs of, when claimed, &c., 437 simimons in action for, 437 proceedings as in mandamus, ..... 438 writs of, when and how issued, .... 438 how enforced 438 defendant may plead right to perpetual, 438 order and uatm-e of, when granted, &c., 438 Judge in Equity " the court " to mean coiut of, 1 .... 431 absence or illness of, provision for, . . 432 (See Equity Judge,) .......... 444 Judgments for plaintiff on writs of mandamus, . 436 in Writs of injunction 438 given according to equity,* i 433 Jurisdiction what, transferred to [supreme court. . 433 chancery, given to supreme court, . . 432 proceedings where defendant is out of, 433 Mandamus, Writs of action for, 436 form of writ, . 43B pleadittgs in ivrits of, ........ . 436 judgment and execution, ....... 436 form of execution, 437 effect of imt 437 GENERAL INDEX. 801 EQtriTY. PKOOEEDIiraS IN-cmUnued. Mandamus, writs of court may order act at expense of de- fendant, 437 not to take away former right to rule for, 437 Masters reference to, 433 . Mortgages mortgagor or mortgagee may Turing suit on 435 Obedience to master's report, how enforced, ... 433 Parties . rules regarding, 431-5 Penalty for taking Ulegal fees, 435 action for, when hrought, limitation, . 435 Perpetuating Testimony, 441 Possession, "Writ of not to issue without leave, &c., .... 440 Practice practice in supreme cotu-t observed, exceptions . 432 suits how commenced, 432 plea, &a., 432 demurrer, 433 hearing on writ, plea and answer, . . . 433 judgment, 433 reference to master, report, &c., . . . 433 ohedience to order, cSfcc, how enforced, 433 where party out of province .433 in cases of foreclosure, 433 costs, discretion of court as to, ... . 434 in cases of default, 434 several causes of action, united, . . . 434 rules regardingparties, 434r-5 suits when dismissed, . 435 taxation of costs, 435 security how taken, 435 Prothonotary may make order for gazette notice to ahsent defendant in foreclosure cases, 433 Heal Estate infants, real estate of, 440 Beoeiver when may he apiDOinted 435 Eedemption suits for, of mortgages 435 Beference to master, &c., 433 Belease . , effect of, hy assignor without notice,. . 443 Bules regarding parties to suits, 434-5 Sale in ec[uitable cases coviit may order sale Of property, 439 conveyance may he made by sheriff, . 440 of infant's estate, when ordered. ... 440 conveyances under order, effect of, . . 441 Security how taken, &c., 435 Specific performance when plaintiff may claim, ... .... 435 proceedings where party refuses to ex- ecute instrument 436 court may order execution for, when, . 436 101 EQUITY, PEOCEEDIWOS IN^continued. Supreme Court definition of term 431 jurisdiction transferred, &o., 431 chancery jiirisdiction given to, ... . 432 practice of to be observed 432 suits and records of chancery court transferred to, 432 /Pender may be given in evidence; when, ... 439 Term.s definition of, 431 Writs of injunction, 437 mandamus, 436 possession 440 Witnesses examination of, in suits for perpetua- ting testimony 441 deposition of, how taken, 441 attendance of, 442 EQUITY JUD&E-HIS OFFICE AWD DUTIES. appointment, salaiy, and qualifications, * 444 tenure of office, liabilities, power, &c.| same as judge of supreme Jcom-t— proviso, . 444 rules of practice to be made and published by, 444 equity cases and motions to be heard and deterraJned by him, except country business, 444 to preside on trial of issues, and have power to direct jury from city of Hali- fax, 444 fees and liabilities of jury and witnesses same as in supreme court, 444 to hear probate appeals, .and be vice presi- dent of court of marriage and divorce, 445 court, when open 445 in absence of other judges, to perform du- ties of judge in supreme coxu-t, .... 44,5 on petition of either party, hearing to be before three judges, 445 appeal to fuU bench— conditions, .... 445 judge to sit in supreme court in banco, at chambers when necessary, and go cir- cuit when other judge ill, 445 cases in which equity judge is to preside, . 445 hearing of cases in which judge is interested, 445 ESCAPE. punishment for assault to resist apprehen- sion, 603 punishment for breach of prison, 663 rescue, . 663 shooting, &c., to resist ap- prehension, 863 ESCHEATIIIG LABTDS. governor may direct attorney general to file inquests of office . 488 notice of inquest, how given . 480 penalty in case of tenant neglecting to in- form landlord 18S proceedmgs in case of non-appearance, . 48G costs, how paid, .488 proceedings in case of appearance and plea, ' ' IS" costs, . I • ■ • 486 802 GENERAL INDEX. ESCHEATIIirG LA'NI>S— continued. inquest may include any number of lots in one county, but trials to be separate, . 486 when grant includes several lots. Sec, for- feiture of each to depend on perfonn- • ance of conditions in respect of parti- cular lot, 486 plea to be simple denial only 486 escheated lands not to be granted within one year after judgment • . . 486 ESTATES OF DECEASED PERSOliTS. Cb'ee Descent of Jieal and Persorml,) .... 747 (See Probate Court,) 447 (See Wills,) 397 ESTATES TAIL abolished, 397 EVIDEBTOB, ■WITNESSES, AND THE PBOOP OP "WBITTEM" DOCU- MEITTS. Absent witnesses depositions of, how taken, &c., .... 570 depositions, by whom opened, 571 Acts of state or foreign state, how proved, . 576 Adultery sections 43, 44, 45, not to apply in cases of, 581 Afa davits in answer tonewmatter, whenrecgived, 573 in foreign and other courts, how proved, 576 to hold to bail, &c., made abroad, how received, 577 Affirmation when may be made instead of oath, . . 582 force and effect of, . ' 582 penalty for false, 583 Attestation when not necessary— what proof suf- ficient, JSO Certificate of previous conviction, 583 Character \ evidence of, &c 581 Commission for taking depositions abroad, 570 from courts abroad, proceedings, ... 571 Commissioners definition of term, 583 depositions de bene esse taken before, . 571 may make special report, 575 Contempt of Court how and by whom punished, 583 Copies of proclamations, &e., how admitted, . 576 of papers filed in provincial coiu-ts ad- mitted 577 of registers, &c., how admitted 578 of grants, Ac, made evidence, .... 589 of deed made evidence, when 679 of will made evidence, when, 579 of grant or dupUcate, 580 of plans, when admitted, 680 Costs of application for i-ules, &c 575 on refusing to admit documents, ... 575 not allowed where party does not ex- hibit, 575 EVIDEWCE, &0,— continued. Costs of proof of documents, when allowed, .'575 where documents not requisite, .... 575 indiscretion of court, when, 576 Crime witness not incompetent from 580 examination relative to conviction of, . 582 Declarations imder act of parliament, eflect of, . . 577-8 under registry act, how proved, . . . 578 Deeds proved by declaration, &c., 578 certified copies of, when received, . . . 579 when attestation unnecessary— how proved, 580 Deposition commission to take — of absent witness, 570 when and how opened,' 571 of witnesses about to leave, &c., how taken, 571 where do not reside in county, . ... 571 notice of, how and when given, .... 571 when to be read in evidence, 572 not to be set aside for technical objec- tions, 572 under sections 16, 17, 18, 19, returned and used, &c., 574 Documents when witness not compelled to pro- duce, 572 court may order production of, when, . 573 production of, in hands of opponent, . 574 may be exhibited for admission, .... 575 costs of proof of, when not exhibited, . 575 when costs to be disallowed, 575 costs of proof of, when not requisite, * 575 costs of proof of,' when costs in cause, 576 admitted in England by law, admitted here, 576 copies of, filed in court, when admitted, 577 pimishment for forgmg, &c., 578 Ezamtnation of absent witnesses how and when opened, 571 court may order— under foreign com- mission 571 refusal to obey order for— a contempt, 572 de bene esse not set aside for technicali- ties, 572 Pees must be tendered to witness, 583 Grants certified coiries of, admissible, 579 certified copies of duplicates of, ... . 580 Handwriting proof by comparison of, . 580 Husband not compelled to disclose comnnmica- tionsofwife, 581 not to give evidence in cases of adulteiy, 581 InterTOgatories evidence of absent Witnesses taken byi 671 may be delivered with declaration or plea, 572 proceedings, when not sufficiently an- swered, 573 answers to, may be naed in evidence, . 573 GENERAL INDEX. 803 EVIDENCE, &o.— continued. Judge may examine witnesses under commis- sion from abroad, 571 depositions de bene esse may be talcen before 571 may make ' order wliere witnesses re- side in anotlicr coimtry 571 to be satisfied of certain facts before deposition read, 572 may order documents produced or wit- nesses examined, 573 may command attendance of witnesses, 573 may compel examination, 574 may order production of documents, . 574 may refuse costs wliere documents un- . necessary, 576 testimony of, how taken, 582 may administer oaths, 583 Judgments of other courts how proved, 576 ITotioes of examination being returned, .... 571 of examination de bene esse, 571 to admit documents 675 of intention to introduce copies of deeds, 579 Penalty for affirming falsely, 583 Perjury- false affirmation declared, 583 when persons gmlty of. 583 Plans certified by prothonotary, made evi- dence, 580 Probate of will, evidence, .' 579 Proclamations of foreign states, &c., how proved, . . 57G Kegistry of British ships, evidence 578 copy of grant from, evidence,, i . . . 579 GO]yy of deed from, evidence, 579 copy of will from, evidence 579 certificate of deeds, evidence, 580 Subpoena may be issued by justice, when, ... 582 Terms definition of, 583 Treaties of foreign states, &c., how proved, . . 576 "Wife communications of husband to, ... . 581 not competent witness in cases of adultery, 581 Wills probate of, &c., evidence, 579 regularly proved abroad, copies of, &c., 579 notice before copies, &c., evidence, . . 579 ■Witnesses residing abroad, evidence, how talcen, 570 may be examined under foreign com- mission, 571 about to leave, 4&c,, how examined, . . 571 refusal of to obey order, a contempt, . 572 when not oompellod to prodxioe writ- ing;,. .,,,....,,,.,.,. S72 EVIDEHOE, &o.—coniinued. "Witnesses examinations of, de bene esse, when not set aside 573 court may order examination of, &c., . 573 attesting, when not necessary 580 not incompetent from crime, &c., . . . 580 who are competent, '. . 580 criminals. &c., not competent, .... 581 party producing not to impeach 581 wliere does not admit former statements in proceedings 581 cross examinationjas to previous state- ment in writing, &c., 581 examination of, as to crime, &c 582 when reside at a distance justice to 583 issue subpoena,. 682 not obliged to attend without fees, . . 583 where refuse to talie oath, proceedings, 682 penalty on, for affirming falsely, . . . . 583 who may administer oaths to, 583 wlien guilty of perjury, 583 definition of term, 583 EXCHANGE. CSee Bills of Exehaiige,) 319 EXCISE- DUTIES. on ale and porter, 26 on tobacco manufactured in province, . . 36 licenses for brewing, &c., how gt-anted, . . 28 bonds required, 36 penalty for illegally manufacturing ale, porter, &c 20 returns when made, 2G, 37 • drawbaclcs on exportation 27 bond forfeited, when, 27 power of revenue officers 37 provisions of chapter on smuggling made applicable, 27 power of board of revenue to malie regula- tions, &c., 27 false returns declared perjury, 27 duration of chapter, 27 schedules, 27, 28 EXECUTIVE AND LEGISLATIVE DISABILITIES. (See Disabilities, (^•c.,J 5,0 BXECUTOKS, ADMIKTISTKATORS, TBUSTEES ; SUITS AGAINST— executors or administrators within one year after death of party may maintain trespass, &c., for injnry to real estate of deceased committed within six months prior to his decease 010 executors and administrators liable to ac- tion of trespass, &c,, within six months after death of deceased, for injury done by him, 611 executors or administrator liable to action of debt on simple contract, ........ 611 executors refusing to act, and to whom pro- bate not granted, need not be named in any suit, OU executors and trustees, imless otherwise " directed by will, &c., authorized to in- vest monies in provincial debentures or savings "tiiwik, < • • • 81][ 804 OENEEAL INDEX. EXECUTOBS, &o.-conUmed. legacies may be recovered by action at law, CH residuary legatee being an executor, may sue co-executor, 611 tnistees may be discharged from trusts, and the mode ." 611 trustees may be removed, and the mode, . 6U EXECUTOBS, &o.—contiwued. new trustees,— how to be appointed, ... 613 costs of proceedings under three last sec- tions how paid 612 BXHIBITIOlSrS. (See Public ExhibiUoneJ 391 F. FACTOBS AWD AGElfTS. Agent in possession of goods or documents of title thereto, to be deemed 0"wner, and may sell or pledge same, ... 317 contracts by, for pledge, &c., of goods, in exchange for other goods, &c., wh^n held valid, 317 made in good faith by, when held valid, 317 lien for antecedent debt of, invalid on sale or pledge of goods 317 deemed possessed of goods represented by documents in his possession, . . 317 possession of goods or documents of title by, to be evidence of agency, . 318 when to be considered in possession of goods, &c., 318 advance to agent in goods, &c., when held valid 318 contract when deemed made with, . . 318 pledging goods illegally, guilty of mis- demeanor • 318 pledging goods illegally, punislunent for 318 may pledge goods for advances, &c., . 318 conviction of agent not evidence in suit against him, ■ 319 having made compulsory disclosures not liable to conviction, 319 Antecedent Debt of Agent lien for, on pledge of goods, invalid, . 317 Advanoe to agent when deemed advance on se- curity of goods, &c., 318 to agent, what shall be lield, 318 by agent, goods may be pledged for, . 318 Contract for pledge, &c., of goods by ' agent, when held valid, .317 made m good faith by, when held valid, 317 when deemed made with agent 318 Conviction of agent not evidence in suit against him,' ., 319 agent having made disclosures on oath imder compulsory process of court not liable to 319 Documents of Title defined, 317 possession of by agent, to be deemed possession of goods, 317 possession of by agent to be deemed evidence of agency, 318 pledge of to be deemed pledge of goods, 318 when considered in possession of agent, 318 pledged, right of oi^iier to redeem, . . 319 FACTOBS AND AGHNTS— continued. Lien on goods, evidence of ownership of agent 317 on goods, contract for by agent, when heldvaUd, 317 on goods in respect of antecedent debt of agent invalid, 317 on docmnents, to be deemed lien on goods 318 repayment of, by owner on redemption of goods, &c., pledged, 319 Owner of goods, agent when deemed, .... 317 may redeem goods pledged 319 Pledge of goods by agent, 317 of goods, lien for antecedent debt of agent in valid on, 317 of documents of title to "be deemed pledge of goods, 318 of goods illegally by agent a misde- meanor 318 of goods illegally, accessories to, who, and how punished 318 Remedies at law or in equity not to be affected by ' this chapter, 319 FALSE PBETBlSrCE. punishment for obtaining articles by, . . . 675 what shall be deemed, 675 FABMS, GABDEWS, AJSTD OBCHAKDS. punishment for damaging or robbing. . 678 FEES. CSee Costs and Fees J 613 FELOirr. second conviction for, 679 FEWOES, FEITCB VIEWEBS AlTD IMPOUUDIlfQ OF CATTLE. Appeal from decision of justices, 188 from judgment of fence viewers, . . . 189 Appraisement of Damages to fences, &c., by cattle, by whommade, 1S7 Cattle damages by, from whom recoverable, . 187 damages by, how appraised, 18T damages by, how recoverable, .... 187 trespassing, may be impounded, . . . 188 impounded, sale of regiUated 189 owner of, liable for trespasses by, . . ISO o-\vner of,' liable for damage by his cattle breating throiigh his portion of division fence 190 Common Law Bights not impaired by this chapter, 190 GENERAL INDEX. 805 PEWOES, SiC—oontinued. Damages by cattle to fences, &c., fi'om ^yhonl re- coverable, 187 how appraised 187 how recoverable after appraisement and notice 187 recoverable if broken portion of fence were lawful, 189 Expense of erecting partition fence after notice, how recovered 188 Fees of justice for oath of appraisement, . . 187 of pound keepers, 189 Fences how constructed, 187 height of, 187 damages by cattle to, from whom re- coverable, 187 damages by cattle to, recoverable if bro- ken portion of fence were lawful, . 189 partition, how erected, 187 partition, may be erected by fence viewer on neglect of proprietor, . 188 sufficiency of, how determhied 188 rivers, creeks, &c., when deemed lawful, 189 division, owner of animals liable if his cattle break through his portion of, . 190 on pnblio groxmds, penalty for uijury to, 190 Fence Viewers may cause partition fence to be erected, 188 nearest to decide when disputes arise as to expenses, 188 fees of, 188 fme for neglect of duty by, 188 ai>peal from judgment of, 189 Fines for rescue and poxiud breach, ..... 189 for rescue and pound breach, how re- covered, 189 Horses trespassing, may be impomided, ... 188 Impounding of cattle, (fee. when and for what period, 188 duty of poimd keejier upon, 189 Justices of Peace two, to determine as to sufficiency of fence, 188 appeal from decision of, 188 IJands titles to, not affected by sections 8, 9, 10, unimproved ; owners not obliged to fence, ....'. 188 enclosed ; cattle trespassing on, may be impounded, 188 Notice of Impounding cattle, &c. how given by pound keeper, 189 Owner of animals fees payable by, to pound keeper, ... 189 liable for damage done by cattle, ... 189 liable for damage if broken portion of fence were lawful, 189 liable for damage if his cattle break through his portion of division fence, 190 Owners of lands adjoining; obligations of ♦188 ununproyed; not obliged to fence, . . 188 FENCES, &I3.— continued. P nalty for injuring fences, &c., on public groimds, 190 Pound breach. lines for, how recovered and appro- priated 189 Pound keeper duty of, . . 189 fees of, and mode of recovery, .... 189 to give notice of impounding cattle, . . 189 Proprietors to erect i>artition fences 187 differences of, as to erection of fences, how decided, 188 of adjoining lands, obligations of, . . . 188 unimpr-oved lands, not obliged to fence, 188 Partition fence how erected ■ 187 fence viewer may erect, in case of ne- glect of proprietor 188 Rescue of cattle from poimd, line for and how recovered, 189 Rivers, creeks, bays, &o. when deemed lawful fences, ■ 189 Sale of cattle impounded regulated, • 189 Ijroceeds of, how applied ISfl Sheep, swine, &o. trespassing, may be impounded, . . . 188 Titles to land not affected by sections 8, 9, and 10, . . 188 "Water boundaries not affected by sections 8, 9, and 10, . . 188 FERRIES. ' ferries and ferriages to be established and regulated by sessions, 249 duty of ferryman, , 249 fine for neglect of duty— further liability, . 219 flue for interfering with ferryman's privi- leges, 249 how imiDosed and recovered 249 if licensed ferryman do not attend, other person may supply his place, 250 FIELDS, COMMON— {See Common Fields,) 279 FIOHTING- IN PUBLIC PLACES. punishment for, C63 FINANCIAL SECRETARY. to be member of administration, 168 to hold office during pleasm-e and give bonds, 158 to have principal clerk who shall give bonds, 158 duties of, 158 waiTants how drawn and paid, 159 to examine and check quarterly accounts of receiver general and principal officer of customs at Halifax 159 governor m council may give directions for management of his office and economi- cal expenditure of public monies, . . . 159 salary ol—CSee Salaries, J 155 FIRES AND FIREWARDS. Assessment of monies for lire purposes 384 806 GENERAL INDEX. riBES AND FIBEWABDS-co)(«nMe(i. Buildings may be pulled down in certain cases • 382 fine for breaking open, 382 Chimuey Sweepers firewards to appoint, license, &c., ... 384 offences of, how punished 385 to enter into bonds, 385 City of Halifax proceedings on investigations as to origin of fires in, 387 Engine men • appointment and duty of, 384 exempted from certain public duties, . 384 one to have power of fireward, .... 384 vacancies, how supplied, 384 Fire constables appointment, powers, and duties of, . . 383 Firemen appointment and duties of, 383 exemiDted from certain public diities, . 384 one to have power of fireward, .... 383 vacancies how supplied, ...... . , 384 Firewards chairman of, appointed annually, ... 386 districts of, to be numbered, 383 duties and powers of, at fires, 382 duty of, as regards fire imjilements, . . 383 how ai^pointed and sworn, 382 meaning of word 387 may make regulations for sweeping chimneys, '. 385 may seize gunpowder in certain cases, 386 power of, to enter buildings, 385 Iiowor of, to remove dangerous ma- terial, 385 Gunpowder , regulations for keeping, 386 waiTant to search for, . . 380 Xmplements required at fires, how provided 383 expenses of purchasing, &c. 387 safety of, provision for, 383 to be numbered, &c. 383 Limits of towns for purposes of this chapter defined, . 382 Penalty for breaking open buildings without authority, 382 for brgaoh of regulations, respecting gunpowder, 386 for disobedience to orders of firewards, 382 for foul chimnies, 385 for injuring public wells, &c 386 for neglect of duty by assessor or col- lector, . . . '. 384 for neglect of duty by chimney sweeper, 385 for neglect of duty by fire constables, . 383 for refusing firewards admission to buildings, 385 bow recovered and applied 387 Property liable to assessment for fii'e pur- poses, 384 Sessions to make regulations respecting flres, &c., 386 power and duty pf, ,.,,*• f 382, 3, i, 6 FIBB ABMS AUD FIBEWOBKS, DIS- CHAEOE OF— fines for imnecessary discharge of, ... . 387 fine for improperly throwing fli'eworks into street, or making bonfires, &c., .... 388 limitation of prosecution, 388 FIBIUa buildings, punishment for, 677 coal mines, punishment for 678 crops, punishment for 679 stacks of grain or fuel, punishment for, . 678 vessels, punishment for 678 FISH OIL (See Inspection of Provisions,) 328 FISH, PICKLED- (See Inspection of Provisions,) 324 FISHEBIBS, COAST AND DEEP SEA— Action against seizing officer, &c,, notice of, . 368 against seizing officer, limitation of, . 369 Agreement to be entered into between master and crew of vessel employed in deep sea fishery, 370 terms of same, 370 form of same, 370 penalty for desertion fi'om vessel while agreement in force, 370 penalty on master for taking person on deep sea voyage without entering into such, 370 Amends may be tendered and pleaded by seiz- ing ofllcer, 309 Appeals within what time to be prosecuted, . . 369 Authority to seize iu case of dispute, oral evidence may be heard as to, 368 Boats (See Vessels,) 367-8 Certificate by Judge, &o., of probable cause of seizure, to pre- vent recovery of costs, 369 Claims for property seized to be made on oath, 368 security, to Be given before entay of, . . 368 Coasting vessels imder sixty tons burthen, how to be shod, 369 not shod, injuring nets, forfeiture for, . 369 Costs in suits under this chapter, when not recoverable, gos Deep Sea Fishery , agreement for, terms of, 370 agreement for, form of, 370 Evidence oral, as to authority of seizing officer admissible, 368 Fishery deep sea, agreement for 370 Forfeitures where, how, and by whom prosecuted, 3CS for destroying nets by coasters, when vessel not shod, 369 bow same I'^eover^cl, ....,,,,, 369 GENERAL INDEX. 807 PISHBaiES, DEEP SEA, Sea.— continued. Foreign Vessels fishing, &c., -within tlaree miles of coast forfeited, 367 Perm of agreement in deep sea fishery, 370 Goods (See Vessels,) 367-8 Harbors meaning of term, 369 Illegal seizure ■ proof of, to he on owner or claimant, . 368 Liiniitation of Action against seizing ofllcer, &c., 369 for penalties or forfeitures, 369 Magistrates powers of, imder this chapter, .... 367 Masters of vessels refusing to depart after notice, pro- ceedings thereupon, 367 to answer qiiestions under penalty, . . 367 coastiug, forfeiture hy for destroying nets Ti'hen vessel not shod, .... 369 Wets destroyed hy coaster, forfeiture for, . . 369 Notice to ofiicer hefore action hrought, .... 368 Penalty for refusal of master to answer ques- tions 367 for obstructing revenvie officers, &o., . 367 for desertion from vessel after engage- ment for deep sea fishery, 370 on master for taking person on deep sea voyage without entering into agreement 370 limitation of actions for, 369 Proceedings ivhen master hound elsewhere refuses to depart after notice, 367 Proceeds of sale of condemned goods, vessels or boats, ho"w applied, . 368 Proof of illegality of seizure to be on owner or claimant, . • . 368 Property seized claim for, to be luider oath 368 Be-delivery of vessels, goodS) &o., seized, < Revenue officers may board vessels, &c., within harbors, or three mUes of coasts, &c., . . . 367 proceediags by, where master refuses to depart after notice, 367 may seize vessels, &c., liable to forfei- ture, 367 IDenalty for obstructing, 367 to have custody of vessels, &c., seized, 367 notice to, before action brought, . . . 368 Security to be given upon re-delivery of pro- perty seized, 368 to be given before claim entered for property seized, 368 Seizure vessels or boats when liable to 367 by whom may be made, 367 FISHERIES, DEEP SEA, &o.—coiMmiccl. Seizure proof of illegality of, upon whom, . . . 368 certificate by judge of probable cause of, to prevent recovery of costs, . 369 Sheriffs powers of imder this chapter 367 Suits for forfeitures or penalties, how and by whom prosecuted, 368 Treaty with United States of America first eighteen sections of this chapter suspended while same hi force, . . 370 Vessels when liable to be boarded by revenue officers, &c 367 foreign, fishing, when forfeited, .... 367 liable to forfeiture, by whom seized, . . 367 seized, to be delivered to revenue ofScers, 367 seized may be re-dellvered on sectirlty given, &c 368 condemned, how disposed of, proceeds of, how applied 368 coasting, under sixty tons burthen to be shod with plank or Iron 369 ' engaged in deep sea fishery, regula- tions for, 370 meaning of tei-m 369 Vice Admiralty Court may order re-delivery of vessels, &c., seized on security, given &c., . . . 368 penalties and forfeitures to be pro- secuted in, 368 PISHBBIES, HIVEB- Appeal from judgment of justices mider sec- tion 8, 372 Bag Wets not allowed, 372 Conviction form of, 375 Fisheries _ on rivers rimning through private lands regulated by sessions, 371 Forfeiture of implements xised in violation of sec- tions 5, 6, and 7, 372 Inspectors of Biver B'ishe^ies by whom appointed, 374 duties ef, 371 salary of, 37i to be sworn, 374 penalty for neglect to be sworn 374 penalty for neglect of duty by, .... 374 Mill ^ owner of, to keep open waste gate, &c., 373 Mm dam stop gate to be made in 374 when may be destroyed, 373 Wets bag, not allowed, 372 when not allowed to be set, 372 how to be set and placed 372 not to be set within one-eighth of mile from one another, nor same distance above or below mill dam, 372 808 GENERAL INDEX. S'lSHEBIES, SIVESr-contirmed. BTets not to extend more than one-tliircl dis- tance acro88 river 372 penalty for violation of sections 5, 6, and 7, relative to, 373 lorfeitxire of, nsed in violation of same sections, 372 sessions to make orders for setting of, . 372 penalties for breach of snch orders, . 372 illegally set, may be destroyed, proviso, 372 Penalty for taiing salmon, except at specifled times, 371 for breach of order of session relative to nets, Ac, . . . . 372 for violation of section 5, 6, and 7, 1'ela- tive to nets 373 for violation of section H relative to waste gate, 372 tor closing passage, by owner of miU, . 373 for refusal to construct waste gates, . . 373 for neglect of river inspector to be sworn, 37i for neglect of river inspector to do his duty, 374 Ijroseoutions for, how had, 374 Persons equipped for spearing salmon at night to be consideredlin the act of spear- ing salmon, 373 Proceedings after desti'uction of nets Ulegally set. . 372 Process to state complaint 373 Prosecutions for penalties, how had 374 Bivers exempt from operationiof chapter*, ses- sions may declare what 374 runnuig through private lands, fisheries on regulated by sessions 371 time for taking salmon hi, prescribed, . 371 Salmon time for taking of, prescribed, 371 penalty for taking, at other times, ... 371 spearing or sweeping of, forbidden, . . 372 sijeaiing, &c. persons equipped for, &c., 373 Sessions to api>oint inspectors of rWer fisheries, 374 to regulafe fisheries on rivers running through private lands, 371 to make orders for setting nets, &c., . . 373 orders of, to extend to centre of channel of rivers dividing coimties, .... 371 may declare what rivers exempt from provisions of this chapter, 373 Spearing or Sweeping of salmon forbidden .373 Spears, &c., used in violation of sections 5, G and 7, may be forfeited 373 Stop gate to be made in mUl dams 374 Summons form of, 374 Trial of offenders under this chapter 373 PISHEBIES, BIVER— continued. Waste gate to be kexjt open by OT\'ner of mill, ... 373 PISHMABKETS may be opened, subject to provisions of chapters 53 and 55, 300, 304 PLOTJE AND MEAL (See Inspection of ProHsions, ^c.,} .... 333 POLIO to mean ninety words, 3 POBCIBLE EWTBT ABTD DETAIETEB. complaint to be summarily tried, C04 damages may be awarded by court or as- sessed by jury, 604 notice to quit, what sufllcient, 604 possession, when to be given, -COS warrants may be issued by two justices, , 604 wan-ants, when to issue, 604 POEEOLOSTTBE OP MOETGAGES. (See Equity, Proceedings in,) 435 (See Lands, Sale of under,) 403 PORGEBY AliTD OPPEITCES BELAT- nSTG TO THE COIIT. definition of word " writing " in section 2. . 677 definition of word " person" in section 3, . 677 pvmishment for coimterfeiting or ntterlng coin, 677 punishment for forging or altering a wri- ting, 677 pttnishment for forging muniments of title, 677 punishment for forging public seals, &c., . 677 POBMS slight deviations from, not to vitiate, ... 4 POETIPICATIOBTS (See Public Fortifications.) 149 PEABTCHISE. qualification of voters at elections, .... 755 PBATJDS AND PEBJUBIES. PBE- VEBITIOK" OP— assignment of trust, to be in writing, . . . 412 contracts for goods above $40, not valid, imless reduced into writing, part ac« cepted, or earnest given, 411 executor or administrator not chargeable out of his own estate, or any defendant for the debt, default, &c., of another person, or in consideration of marriage, or on contracts on sale of lands, or ■agreement not to be performed within one year, imless agreement in writing, &c., &c., proviso, . 411 interest in lands not assignable, except by de^d or note in writing, ........ 411 leases and estates in land not in writing to be estates at will, except leases not exceeding three years, &c., 411 trust, save implied or resulting, invalid except in writing, 412 PEAUDULEBTT APPBOPBIATIOBTS. ' iranishmenf for robbing the person, .... 674 assault with intent to rob, . 674 robbing the person and causing grievous bodily harm . 674 GfiNiSRAt, INDEX. m FBAUBtriiEIirT APPKOPBIATIOH-S-con. punishment against a person aiTned with any offensive weapon, or together with one or more who shall assault, with in- tent to roh and cause grievous hodUy harm, . . ; G74 piinishment for demanding ijroperty with menace or violence, with intent to steal, 674 pimishment for stealing from or plundering wreck, 674 pimishment for accusing or tlireatening to accuse, &c., with an abominable of- fence, and thereby extorting money, . 674 punisliment for a theft,by accusing or threat- ening to accuse a person of felony, . . 674 punishment for attempting to commit a theft by sending threatening letters, .... 675 what shall be held threatening letters, • &c., 675 punishment for larceny, 675 destroymg or concealmg wUls 675 stealing muniments of title, 675 stealing valuable securities, 675 stealing or killing cattle with intent to steal, &c. 675 last four sections not to affect civil repie- dies 675 FRAUDULENT APPBOPBIATIOBTB-con punishment of a clerk or servant for steal- ing from his master, 675 pimishment for obtaining articles by false pretences, ' . . 675 false pretence, what shall be, 675 false pretence, frauds in games, bets, or wagers, held to be 675 when the offence proved is a larceny, in what case it shall be a defence on a charge of false pretence, 676 punishment for a clerk or servant embez- zling master's property, 676 punishment for receiving stolen goods, loiowing them to be stolen or obtained by false pretence or embezzled .... 676 regulations to be conformed to by all deal- ers in marine stores, &c., 676 punishment for secreting stolen marme stores, 67'5 PKEIGHT. goods in warehouse liable for, 49 PBESH BEEF. (See Inspection of Provision!, ^cj . . . . S30 PUEIi. (See Inspection of Puel, ^c.,} 331h8 G. aAMBLIirG HOUSES. penalty for keeping . 660 GAME IiA-WSi (See Preservation of Birds,) 3G4 GAMES, BETS, AISTD "WAGEBS. (See Fraudulent Appropriations,) 675 aAEDEKS. punishment for robbiiig 678 GEESE. going at large, 393 GElSTEBAIi ASSEMBLT. duration of, , . . i 6 not determined by demise of her majesty, 6 number of county, division, and township members, i . ■ 6-S representation in, t . . . 6 ©ElfEBAl. SESSIONS OF THE PEACE. (See Sessions,) 164 GLEBE AUD SCHOOL LAKTb^. exempted from sale for non-payment of rates, i. 273 e-OLD COIBT. what currentj &c.j . . . < i . i . . i . . . 320 &OLD DISTBICTS. no license for sale of intojticaiing liqilors to be granted within limits of, 68 (See Mines and Minerals,) ...;..... 95 d-OLD MINES. ,. (See Mines and HSmerdls,) 95-108 GOOD FBIDAT. act to be done on, to be done on the next (Jay, . 1 . 1 i . . . . I . . . 4 102 GOODS. to mean personal property, i . . i . . . . 3 GOODS, EXPOBTATION OF, AND DBA"WBACKS- Advalorem upon what quantity of goods entered thus, drawbacks obtained, .... 51 Affidavits of person enteiing goods 'outwardS) . . 61 Agent may export, &c., for foreigners, . » . . 54 when may enter and re-ship, &c., ... 54 Army and Navy army officers wines ; how delivered, . 53 board may make regulations respecting goods used for, . . ; . i 53 bonds for navy officers mhes, how can- ceUed, i 53 drawback allowed when duty paid, . . 53 drawback for goods for, how allowed, 53 exemption only for goods in original package, i . 53 goods for, charged according to guage, and drawback how paid 53 goods for, how deli-\^red from ware- house 52 goods for, relanded, to be forfeited,— penalty, &c. 53 goods for, if not used, duties to be paid, 53 navy officers wines, how obtamed, . . 63 return of articles used for 52 return of duties only for goods used for, S3 restrictions and regulations, 54 What goods exempt for use of, 52 810 GENERAL INDEX. GOODS, EXPOKTATIOIT OP, &c.-c-Ap- PENDIX, 735 HOLIDAYS. acts to be done on— when to be performed, 4 HOKSES ABrp CATTLE, STKAY— apphcation of sale of proceeds of, 393 disputes as to ownership, how settled, . . 393 expenses of keeping, 393 fees, &c., when property claimed before sale, 393 fine for detaining cattle and not proceed- ing, 393 how to be dealt with, 392 proceedings when no claimant appears, . , 392 sale of authorized— when, 392 town clerk's duty and fees, 392 HOKSES, IlSrPECTED- going at large, . ■ 393 HOUSE OP ASSEMBLY. (See Controverted Elections,) 12 (See General Assembly, Duration of,) ... 6 HYPOTHECATIOH" OF VESSELS. (See Zreieres<,>-APPENDIX, , 741 GENERAL INDEX. 815 I. ICE, BOADS OVER- sessions may make regulations respecting, 394 expenses incurred, how paid 395 penalties for treaoh of regulations,, .... 394 ILLEGAL EH-LISTMElfT. persons procming, &c., to tie guilty of mis- demeanor, punishment 657 enticing persons abroad for purpose of en- listment, a misdemeanor, pimishment, 657 enticing minors, and apprentices to leave the province, a misdemeanor, punish- ment, 658 justices may issue warrants, &c., . . ., ■ . 658 this chapter not to prevent action for damages, 658 IMMIGKAlfTS. Aocounta to be kept by agent with 153 Agent, Immigrant appointment of, . . . ." > . . 150 authority of, to draw monies, 151 duties of, lSO-1 lands to be placed at disposal of, . . . . 151 salary of, 150 to be fumishedwith plans of lands, . . 151 to keep accounts with, 153 to receive applications of crown lands from 151 to record licenses of occupation, .... 152 to return same annually, 153 Commissioner of Crown Lands to lay off lands for, and place same at disposal of agent, 151 to direct expenditure on roads, .... 151 to have lauds surveyed for 151 Crown. Lands to be laid off for, 151 to be placed at disposal of agent for . . 151 Forfeiture of license of occupation, when, .... 152 mode of proceeding for, 152 Governor to appoint agent for, 150 Governor in Council may authorize drawing of monies, . . 151 may make regulations for 153 Grant when to be issued to, 152 License of occupation may be given to, 152 not transferable, 152 to be recorded 152 returns of, to be made annually by agent, 153 Payment for lands time allowed for, 157 Possession of lands, when to be taken under license, 153 Purchase monies how secured, 152 to be expended on roads, 151 Begulations to be made by governor in councU, . . 153 IMMIGKAITTS— confa'mted. Ke turns of licenses of occupation, when made, 163 Surveys to be made for, 151 IMPAELABTOE. CSee Criminal JusticeJ 633 (See Pleadings and Practice,) 530 IMPOETATIOBT OP GOODS. (See Goods, Importation of, J 36 IMPOtmDIBrG OP CATTLE. (See Fences, Jmpownding of Cattle,'(fc.,J . . 138 IBTCENDIAKISM— punishment for, 677 nsrcBST- punistmient for, '660 IlSrCOEPOBATIOira. (See Joint Stock Companies, J^Afpb^tiIX, . 750 IBTCUMBKAlirCES AffPECTIWG LANDS. (See Deeds, Registry of, ^c.,J— Appendix, 742 IWDIAJSrS. aocoimts of sales of lands of, how kept, . 207 appeal from decision of justices 208 appointment of commissioner. Sec, for, . . 205 appointment of deputy commissioner, . . 205 apportionment of provincial grant to, . . . 206 commissioner, chief, appointment of, . . . 205 dei»nty, appointment of, . . 205 deputy, reports of, 206 iuBtruotions to, by] whom issued, 203 instructions to, special, . . 206 of indianlands, appointment of, .306 may educate children of. . . 206 commissioner may make agreement ■with parties occupying lands, and remove intruders, &c., '. ... 207 commissioner may raise subscriptions for permanent fund for, . . . . ■ 206 children of, how to be educated 206 conveyance on sale of lands of, when ex- ecuted 207 education of children of, 206 encroachment upon lands of, 205 entry on lands of, effect of, 208 expense of education of children of, . . 200 sva-veys for, how paid, . ■ . . 207 governor in council may appoint chief com- missioner, ... t 205 governor in councU may issue instructions, 205 governor in council may appoint commis- sioner for indian lands, 206 governor in council may authorize surveys, 206 instructions to commissioner, 206 interest from sales of lands of, how applied, 207 intruders on lands of, how removed, .... 208 justices may issue warrant for removal of intruders on lands of, 208 justices may award costs against party complained of, 208 816 GENERAL INDEX. XNTJZ^BlS—continued. monies for sale of lands of, account of, &o., 207 for sale of lands of, to bear interest, 207 gi-anted for, to whom paid, 206 how drawn from treasury, 208 rents of lands of, how collected, &c., . . . 207 sale of lands of, proceeds of, to whom paid, 207 surveys of lands of, provided for, 208 warrant for removal of intruders on lands of, how issued, 208 IITPECTED CATTLE. regulations respecting, by whom made, . 393 penalty for breach of same, 393 IBTFECTIOUS DISEASES. CSee Health, Boards of,) 198 llirSOLVEISrT debtoks, eeliee op- Appeal from decision of commissioners or jus- tices, S90 Assignment to be made by debtor upon discharge, 594 Commissioners appointment of, 593 appeal from decision of, 590 petition and schedule to be exhibit- ed to, . . • , 593 to issue summons to creditor thereupon, 593 proceedings of, ' on examination of debtor, 594 Confession of Judgment when to be given by debtor 594 Court of Appeal designated in different cases, 595 powers of, 595 to return proceedings to supreme court, 596 Creditor summons to be served upon — when, . . 593 oath to debtor may be waived by, . . . 594 ' on affidavit ot, debtor may be remanded, 594 liable for sheriffs fees on discharge of debtor, 596 Crown Debtors how discharged 594 Debtor to exliibit petition and schedule, &c., . 593 examination of, 594 may be remanded upon affidavit of creditor, 594 may be remanded for fraud 595 crown— imprisoned, how discharged, . 594 when remanded for fraud, to pay wit- ness fees, 595 when to be discharged by officer, . . . B9S S'raud debtor may be remanded in case of, . 595 when remanded for, witnesses fees to be taxed against debtor, . . j . ■ 595 Jail limits not allowed on remand for fraud, ... 595 Judge petition and schedules to be exhibited to, 593 to issue summons to creditor there- upon, 1 . i I I . I 693 to administer oath to prisoner, if re- quired, . 4 , . I . t 594 to give order for discbarge, unless, &c.) 594 when to be court of appeal, . . j j . . 595 HfSOLVEBTT DEBTOBS, &,B.—coTttirmed. Justices appeal from decision of, 595 two may relieve in cases in justices court, 595 Notice to creditor of application for discharge, 593 Oaths to prisoner upon examination 594 upon discharge, 594 form of, 594 taking of, may be waived by creditor, . 594 Prisoner toexhibitpetition and schedule to judge, 593 may be remanded on affidavit of credi- tor, &c., 594 may be remanded in cases of fraud, . . 595 may be remanded for non-payment of 1 witness fees 595 when to be discharged by officer, ... 596 Property assignment of, by debtor, on discharge, 594 owned at time of judgment, liable for debt, after discharge of debtor, . . 596 subsequently acquired, liable for debt, after discharge of debtor, 595 Bemand of prisoner for fraud, for what period, 595 of prisoner for non-payment of "nitness fees, 595 Schedule of debtor, requisites of, 593 to be exhibited with petition 593 copy of, to be served on creditor or his attorney, &c., 593 Service of summons on creditor, &c., when, 593 on creditor resident at a distance, regu- lated, 593 where plaintiff non-resident in actions out of justices court, 593 Sheriff's fees who liable for on discharge of prisoner, 596 Special Sessions when to be court of appeal, 595 Witness fees to be taxed against debtor on I'eihand for fraud _. . 59S when not paid, debtor may be fui'thelf remanded 595 Siimmoas to creditor, when to issue, 593 how served 593 time of service of 593 service of, how proved. . . 593 Sut>renie Co\irt when to be coiut of appeal, 595 IBT SPECTIOK" OF PEOVISIOWS, LUM- BER, FUEL, Aira OTHEK MEE- CHANDIZE. Apples barrels) size and dimeiisions of, pre^ scribed, 340 number of hoops on 349 how to be branded, 340 penalty for selling in smaller, 340 flour, used in shipment of prd- duce not affected, 310 rJEXERAt- tNDKX. 817 tCfSPEOOJlOlf OB* VnOVIBlONS.-cont'd. Alewives No. 1, deijcriptiou and quality of, . . . 325 Ko. 2, description and quality of, ... 325 " cured in bulk," how branded 325 " tainted "not to pass inspection, . . . 325 Barrel of pickled flsh, dimensions of, 323 weiglit of, 325 Beef, Fresh. duty of weighing officer 330 fees of weighing officer, 331 fine upon officer for neglect of duty, . . 331 line upon purchaser refusmg to take hide and tallow, . 331 live cattle and government stores ex- cepted 331 regulations for selling and weighing, . 330 Beef and Pork, Salted casks, contents of, 329 casks, dimensions and quality of, . . . 329 inspectors and repackers, duty of, . . ' 329 inspectors and repackers, fees of, . . . 330 inspectors and repackers, flue for mis- conduct of, 330 mode of branding by 329 inspectors and repackers not to repack imtil it shall have been 14 days in salt, ; 329 line for exporting uninspected, .... 330 fine for master for having in hold unin- spected packages 330 fine for misconduct of inspector or re- packer, 330 fine for obstructing officers 330 forfeiture for shilling or iutermixmg re- packed, 330 justice of peace may grant warrant to- search vessels 331 proceedings on suspicion of uninspected packages having been shipped, . . 330 qijalities of, defined, viz. : " mess beef," 328 " prime beef," 328 " cargo beef," 328 "mess pork," 329 " prime pork," 329 " cargo pork," 329 quantity of meat and salt m each cask, 329 Bread for sale, how marked, 331 fine for selling unmarked, 331 selling bread short of weight, . 331 obstructing officer, . 331 servant or journeyman offending againstprovisions of this chap- ter, 332 loaves made to order, &o., excepted, . 332 prosecutions limited 332 relief of baker, against penalties, when, 332 scales and weights to be kept by scUers of, . 331 short of weight may be seized, . i ... 331 unmarked may be seized, ....... 331 weight of loaves of, . . ; 331 Bricks mode of calculation of, 340 102 INSPECTlOir OF PKOVISIOirS.-co«<'d. Coal on shipboard by retail, to be sold by the ton weight avordttpois, 335 on shipboard, to be measured or weighed, 335 liable to forfeiture if sold without being measured or weighed 335 fees of measurers of coal, 335 fines on measurer for miscondtict, . . 635 certificate of proprietor, &c. of mine to be exliibited when requested, ... 335 certificate to be delivered to collector of customs on discharge ot coal, . 333 penalty for misrepresentation of kind of coal, • 335 penalty on proprietor, &c., for giving false certificate, 335 Cordwood dimensions and quality of, 33S from shiiJboard to be measured, .... 336 fees of measurer 336 flue on measm-er for violation, of duty, 337 fine for selling without bemg measured, 336 rotten and crooked, how piled, .... 336 undimeusioned, to be rejected, . . . ■ 336 Oom (See Grain and Corn J . 332 Fish oil casks how branded, 328 guager, duty and fees of, ........ 328 guager, fine for misconduct of, .... 328 guager, fine for acting as without autho- rity, 328 Fish, Piokled appointment of inspector of, 323 casks of, to be filled up with pickle, . . 325 to contain quantities, viz :— a, "tierce," three hundred pounds, 326 a " barrel," two hundred poimds, 325 a "half barrel," one hundred do. 325 how be to branded 326 " cured in bulk " how branded 325 " damaged" not to pass inspection, . 325 fees of inspectors of, 326 how to be packed 325 inspectors — fees of, • .... 326 how appointed, 323 limitation of actions against 327 to act promptly, 323 to be sworn, 323 togivebonds 323 inspecting,when to be performed, . . . 320 packages for, dimensions of, 323 materials, 323 to be branded by maker, . . 324 penalty on inspector of, not duly ap- pointed, 323 qualities of, how classed, 324 " alewives," 325 "herrings," 325 " mackerel," 324 " salmon," 324 "rusty" to be so branded, 326 repacking, when to be performed, ... 326 "tainted" not to pass inspection, ... 325 to be sorted, and classed, 325 to beweU salted • • 325 818 GENEKAli INDEX. IBTSPECTIOBT OF PROVlSIOM"S.-cve- scribed, 340 barrels, number of hoops on, 340 how to be branded, 340 penalty for selling in smaller, . 340 flour, used in shipment of pro- duce, not effected 340 Salmon Xo. 1, description and quality of, . . . 324 No. 2, " " .... 324 Xo.3, " '■ .... 324 " cured in bulk," how branded, .... 325 " tainted," not to pass inspection, . . . 325 Salt on ship-board, to be measured or weighed, 335 on ship-board, liable to forfeiture if sold otherwise 335 fees of measurer, 335 fine on measiu'er for misconduct, . . . 335 Sessions to appoint inspectors of pickled fish, . 323 to appoint mspeotors generally, for car- lying out provisions of chapter, . . 340 Staves for ban'els and hogsheads, description of, , 338 for packages of pickled flsh, dimensions of, 323 mode of calculation of, 340 Sugar tare on, how ascertained 334 tare on, fine for not allowing 334 Surveyor of lumber, certificate of, 339 duty of, 32S fees of, 339 fees of, by whom paid, . . . 339 fine for misconduct of, . . . 340 "Weigher of floui", duty and fees of, 333 of flour, fine for misconduct of, ... . 334 of hay, fees of, 330 HfSTBTTCTIOIir (See Public Instruction,) 208 UTTEKEST.— (Appendix.) contracts for a higher rate of interest than six per cent void— persons contracting for more than six per. cent to forfeit ■ treble value of the monies or goods in such contract or security contracted for or secured, 741 contracts for grain or live stock may be on halves, or otherwise, lender taking all risk, borrower to make good to lender full value, if same, or any part thereof, perish by wilful neglect, 741 IBTTEBBST.— cojrfimtecZ. on hypothecation of vessels, cargo or freight excepted, 741 interest payable on sums certain, or by written instruments at a certain time, to be allowed from time when sums were payable, or, if payable other- wise, then from demand in writing that interest wUl be required, 741 in actions of trover, trespass cle bonis as- portatis, or on policies of insurance, jury may give damages in nature of interest, 742 prosecution for taking illegal interest limit- ed to twelve months 742 DSTTEBESTS ITS LAUDS. assignable only by deed or note in writing, 411 beneficial, held in trust, may be taken in execution, 404 not in writing, signed by parties, to be estates at will — exception, 411 IIITEKPIjEADEK.— (Appendix.) in certain actions, defendant may allege m- terest iu a third party, and may, before plea ideaded, apply for a rule or order on a party claiming interest in subject matter— piu'pose of rule C24 court or judge may hear case and stay pro- ceedings in meantime, 025 power of court or judge on hearing par- ties, 625 rules and orders may be made as to costs, 625 judgment on an issue, or action and decision of court or judge, shall be final 625 if such third party do not appear, court or judge may, by rule or order, declare him barred from claim against original defendant, reserving his right against plaintifr, and may make order as to costs, 625 order of judge may be reviewed by court, 625 a judge may, at any stage, refer matter to the court, 625 provisions of this chapter made applicable to sheriffs, constables, &c., 625 rules, orders, &c., to be entered of record, and have effect of a judgment, except as to being a charge on lands — may be ■ enforced by execution, . . , C26 INTOXICATING LIQUOBS. how imported, 39 penalty for illegal importation of, 40 INTOXICATIIfG LIQUOBS, LICEBT- SBS FOE THE SALE OP— actions on appeal bonds, limitation of, . . G8 actions for offences under chapter 69 agents for the sale of liquors, when ap- pointed, 67 agents for the sale of liquors, to keep Usts, 68 agents for the sale of liquors, penalties on, 68 appeal, bond for, 65 form of, TO how granted, 65 appointment ofclerk of license, 61 bonds to be given before license granted, . 62 bonds, registry of, ()2 certiorari, bond for, 65 form of, '0 820 GENERAL INDEX. mTOXICATIBTQ LIQtTOES, Sec-continued. clerk of license, accounts of, when rentlered, 64 appointment of, 61 duties of, 64 may risit premises 64 to register licenses, &c., . 62 remuneration of, 61 vacancy, how filled, ... 61 when compelled to prose- cute, 65 clerk of peace to register licenses, .... 62 clerk of peace, remuneration of, how fixed, 62 coroner prohibited from holding license, . 62 costs of prosecution, how borne 65 definition of original package, 61 defence, what may be set up, 67 defendant when entitled to continuance, . 67 duties on, how fixed, 62 duties on, when payable 62 fonn of appeal bond, 71 bonds for license 69 licenses, schedule A, 68, 69 Halifax, city council to fix amount of duty on licenses in 63 illegal sale of, penalty for, 61 Indians, sale to, prohibited, 66 intemperate persons, penalty for sale to, . 66 jail limits, not allowed, 67 justice may continue cause 66 justice not to hold tavern license, 62 licenses, form of, schedule A 6S-9 free, when granted 63 how granted, 61-2 kinds of, 62 not to be held by magista-ates, &c., 62 not to be granted within railway limits or gold districts, ... 68 registiy of, 63 shop, restrictions of, 63 tavern, regulations for, 63 when sessions must refuse, ... 62 where refused, agents may be ap- pointed 67 liquor, charges for not recoverable if under one gallon, 61 liquor not to be sold without license, except in original package, &c. 61 liquor not to'be earned by mail courier, . , 66 liquor not to be sold to minors, Indians, or intemperate persons, 66 liquor sold on railways may be seized, &c., 68 limitation of actions, , , 67 magistrates not to hold tavern license, . , 62 IHTOXICATOTG LIQUOES. &o.— continued. mail courier not to cany liquor, ....... 66 minors, sale of liquors to, prohibited, ... 66 new trial, court may impose terms for, . . 65 original package, definition of, 61 penalty for exposing goods for sale in tavern, 63 gambling in taverns 63 illegal sale of, 61 not appearing on subpoena, ... 65 obstructing clerk of license, . . 64 keeping disorderly house, ... 63 keeping tavern without sign, . . 63 receiving goods from servants, 64 sale to Indians and minors, ... 66 sale to intemperate persons, . . 60 selling liquor on Sunday, ... 63 sign where no license, 63 want of accommodation for tra- vellers 63 on agents for neglect of duty, . 68 on mail courier for caixyiug li- quors, 6C recovery of, 65 to whom paid 65 prosecution, costs of, how borne 65 prosecutor, how indemnifled, 65 receiving goods from servants or in pawn, 63 registry of bonds and licenses regxilated, . 62 sale of liquors by wife, &c., how considered, 66 proof of, to perrons, not named, not to defeat suit, 67 to Indians or minors prohi- bited, 66 to intemperate persons pro- hibited, 66 without license, prohibited, 61 schedule of forms 68, 71 sessions to fix amount of license duty, . . 62 sessions, when must refuse license 62 I shop license, restrictions of, 63 summons may be amended, C5 particulars not required on, . . 67 service of, what suflicient, ... 67 what statements unnecessary in, 67 tavern license, regulations for, 64 tavern must have sign, 04 variance, not to afTect judgment, 66 witness entitled to fees for attendance and travel, Co iNVEiirTioiirs ( See Patents fm- Useful Inventions, J . . . 409 ISSUE definition of word 3 J. JAIL limits to be regulated by supreme court, . 183 meaning of word, 3 JAIIiEK direction and control of, 183 salary of, 183 to post copy of jail regulations, 183 penalty on for fumisliing prisoners, &o., with epii'ituous liquors, 183 pn second conviction of, to be dismissed, . 183 JAILS AND COtriraY BITILDIlSrGS jails, court houses, and session houses, how erected andrepaired 183 penally on jailer or other person fumishmg liquors to prisoners, 183 jailer, on second conviction, to be dismissed and disqualified for office 183 prosecutions to be by clerk of license, . . 183 clerk of license compelled to prosecute on information, ...,,,. 183 GENERAL INDEX. 821 JAIIiS &o.— continued. liquors may lie furnished to prisoners wlien prescribed medically 133 exception where houses within limits, . . 183 jail limits and yards, and conduct of she- riffs and officers, to bo regulated by supreme court, 183 sessions may make orders for regulation of jails, &c., 1S3 jailer's salary, how regulated, 1S4 copies of orders by sessions to be submit- ted to supreme court for allowance, . 181 jail regulations to bo posted 184 JOIIirDER OF PARTIES (See Pleadings, cfc, in Supreme C.. . 598 coiu-t may order further notice to, . . 598 where parties had not sufficient notice, 598 Amendments may he made at any time, . 598 Appearance wherenone— court may order notice,. . 598 may he joint or several, 598 of person not named— replication, . . . 599 Commissioners to divide when and how appointed 599 how sworn, 599 to give notice, &c., 599 three to meet, but acts of two valid, . . 599 where property not di visible — pro- ■ ceedings, 600 to make return, &c., 600 expense of, allowed, 603 Costs of trial, how regulated, 599 how taxed, &c., 603 Court orders requu-ed to be made by, may be made by judge 60i may order future notice — when 598 may order continuance where party absent, 598 may appoint guardians 598 may set aside defaults, &c., .599 to appoint commissioners 599 may confirm proceedings of commis- sioners, 600 may set aside return, 601 may order new partition, when, &c., . 601 may rescmd order of single judge, . . 604 Death suit not to abate by, 603 Default proceedings in cases of, 599 Division who may be compelled to divide lands, 597 Guardians when and how appointed, 598 104 LANDS, PABTITION O'F-contimKd. Heir rights of, how affected, 003 Judge when proceedings taken before, i ... 603 order of, when rescinded, 604 Judgment anal— upon whom conclusive, 601 persons not parties to suit not bound by, 601 other persons, how concluded, 603 Mortgage how affected by judgment, 603 Partition may be as at common law, &c., .... 597 duration of between tenants for years, 597 rule for— appointment of commission- ers, &c, • . . . . 599 notice of time and jjlace of, 599 where cannot be made— proceedings, . 600 new, how ordered, 601 commissioners duty on, 601 where two persons claim same share, . 602 titles made imder, &c., 603 parties evicted after— rights of, ... . 603 parties not appearing not entitled to new ' ■• 603 Petition proceedings commenced by, 597 by whom maintained 597 contents of— amendments, &c., .... 597 to he filed— subsequent proceedings,. . 598 Eegistry of deeds certified copy of return to be recorded in 600 Eeplioation how and when put in, &c,, 699 proceedings on, 599 Eeturn of commissioners made to court, . . . 600 court may confirm, &c., 690 court may set aside, 601 Summons to be issued, when, &c., 598 Tenant in common may be compelled to divide, 597 for years, when may obtain partition, 597 for years, dm-ation of partition, .... 597 liable for misconduct, when 600 rights of one— holdmg exclusively, . . 600 LANDS, SALE OF-UNDEE FOEE- CLOSITEE OF MOETGAGE. in actions for money seemed by mortgage, defendant may pay money into court, &c., 103 proceedings where mortgagor absent, ... 403 notice to be given as in chancery suits, . . 403 sale of mortgaged premises 403 rehearing provided where defendant ab- sent debtor • i"! sheriff's deed— its effect 404 writ of possession may issue on judg- ment, . . . • *"* proceeds of sale, Iiow applied 404 powers of supreme court to adjust equities, 404 one judge to have power of court-excep- tion ....... 40* 826- GENEEAL INDEX. LANDS, SALE OF — TO SATISFY EXECTTTIOBT DEBTS. judgment to bind lands when recorded, but not to be levied on until after one year, 404 beneficial, interest in lands held in trust may be taken in execution, 404 execution may issue within five years without scire facias, ., 404 execution may be levied on the whole or part 404 subsequent judgment creditor may re- quire prior judgment creditor to levy, 404 in case of neglect, subsequent judgment creditor to acquire preference 405 lands to be levied on without appraise- ment—advertized 30 days, 405 copies of advertisement posted 20 days, sale, 405 defendant msiy by notice require portion to be first sold, 405 sheriff's deed, its efltect 405 to be presumptive evidence, &o., ..... 405 wlien tenant on lands purchaser to become landlord .405 surplus monies to be paid as court shall order, 403 special provisions as to titles previous to 1841 406 LAECEITY. punishment for, 675 LATHWOOD. (Sue Inspection of Zumher, cJ-c.,J 338 LEGISLATUEE. offlcers ineligible for, 3, fi seats in, vacated by acceptance of ofllce, . 6 seats m, vacated for bribery 11 LEASES AND ESTATES IN LAND. assignable only by deed or note in ivriting —exception, 411 not in writing signed by parties, to be estate at will— exception, 411 LEATHEB. ( See Inspection of MerclumcUse, i^'C.,) . ... 335 LEGACIES. ( See Executors, Administrators and Trustees, Suits against,) 610 (See Probate Court,) 447 (See mils, (^c.,) 397 LETTEKS. (See Post Office,) 71 LIBERTY OF THE SUBJECT. certain imperial acts to be in force iij pro- vince, 638 judge of supreme coiu-t to have same power as in England, and rights, &c., confer- red on inhabitants of province 638 not to affect common law right to habeas corpus, 638 habeas corpus may be signed by a single judge, retmTiable before himself or otherwise, . 636 court or judge may give rule or order iu' stead of writ, . 339 duty of keeper on receipt of order 639 upon return of order court or judge may enquire into legality of imprisonment, 639 keeper to report order to prisoner," and furnish copy and obey same, » . . . . 639 LIBEBTY OF THE SUBJECT— conttnued. court or judge may in any case require pro- duction of documents, &c., 639 court or judge may examine into truth of return as provided in imperial act, . . 040 wilful neglect or disobedience of judge's order a misdemeanor, 640 return, &c., may be heard by other judge than by judge granting first order, . . 640 order not to enable keeper to discharge for other matter, 640 if after making return, prisoner be detained by other process, keeper shall mate additional return witliout order, and judge may deal with same, C40 tliis chapter not to prevent civil action, . . 640 LICENSES FOB MANUFACTURING TOBACCO, BREWING, &0. (See Excise Duties,) 26 LICENSES FOR SALE OF INTOXI- CATING LIQUORS. (See Intoxicatinff lAquors,) 61 LICENSES, MABBIAQE- (See Marriages, Births, Deaths, <^c.,) ... 414 LIGHT HOUSE DUTIES. provincial vessels to pay ten cents per ton, 50 to whom payable, and certificate of pay- ment 59 new vessels, regulations as to 59 duties on other than jprovincial vessels, . . 59 duties on vessels passihg through Strait of Canso 59, 60 vessels in government employ exempted, . 60 mail steamers not exempt, 60 foreign ship of war exempt, 60 to whom payable by collectors, and com- mission, * 60 penalty for non-payment, 60 vessel may be seized for non-payment, . . 60 certain vessels to pay towards light house on Cape Race, 60 cxemirt if toll paid at port of clearance, . 60 toll how collected and applied 00 meaning of word " voyage," 61 duration of chapter, 61 LIGHT HOUSES ON SCATTAEIE AND ST. PAULS, expenses of, provided for, 92 LIMITATION OF ACTIONS. what actions may be brought within six years, 641 promise to pay must be in writing to take case out of tlie statute ; joint contrac- tors, executors, &c., how to be affected by promise of other contractor, &c., . 641 plaintiff, if barred as to one contractor, may recover against other I . 641 ' in plea of abatement for non-jomder, on proof at trial that action could not be sustained against omitted, Jtc, person, issue shall be found against party plead- ing 641 endorsement of payment by payee not suf- ficient to take case out of statute, . . 641 set off due on simple contract within the statute, . '.642 GENERAL INDEX. 827 LIMITATION OF ACIIONB.-contimed. promise after full age to pay det)t contract- ed during minority, must be in writing, 642 provisions of Ave last sections not to apply to actions commenced before 1st April, 1833, (U2 in case of mutual accounts current, cause of action shall be taken to accnie H'om date of last item proved, (J42 what actions require to be brought within one year, 642 within what time actions by or against minoi'S, married women, insane per- sons, &c., must be brought, . • . . . . 642 if judgment for plaintiff be reversed or arrested, plaintiff may commence de novo within one yeaj-, 042 entry into lands or action therefor, must be made or brought within twenty years, 642 minors, maiTied women, and others under disability, may make such entry or bring action within ten years after dis- ability removed 642 no such action can be brought after forty years, 642 .ictions and claims of her majesty must be made or brought within sixty years after right, 642 liOABT. (See Promiidal Loan,) 160-101 LOTTEBIES AND EAFFLEB. fine for getting up or participating in, ... 660 LUMBER. CSee Inspection of Lumber, i^-cj 323 (See Jiivers, Conveying Timber, cfc., on,) . 3S9 LTOT ATIC ASYLUM. title, object, management, visitors, &a., . . 634 governor to appointmedical superintendent —his salary, 035 medical superintendent to appoint subordi- nate officers 635 to reside on premises, 635 expense of pauper lunatics, by whom borne 635 if sessions refuse to assess, court may amerce, how collected, &c 035 in case patients are not paid for by guar- dians, &c., board of works may sue, . 635 mode of proceeding to convey insane per- son to hospital, 635 medical certificates of insanity, 636 in cases of vacancies board of works may admit luider special agreement, .... 636 board of works may depart from ordinary < rates in special cases, 036 where friends of indigent patients cannot LUNATIC ASYLUM— oonMiMtcd. continue to pay, sessions required to assess for support, . . . ^ • G30 when estate of lunatic not more than sufli- cient to maintain family, board of works may pay from fnnds of hospital, 636 indigent persons charged no more than actual cost 636 patients, how discharged 630 bond for expenses", 037 medical man not responsible for certificate, 637 oftlcers exempt from jury, militi.a, &c., . . 637 when board requires other land, &c., may proceed by cap. 41 of acts of 1659, re- vived for this pui-pose 637 governor may authorise erection of portion of hospital for unruly patients, .... 637 governor may borrow funds fpr repayment, 637 employees exempt from statute labor, . . C37 schedule, 637 LUNATICS, ESTATES OF- guardians, how .appointed for insane per- sons, 030 allowance for expenses incuiTed by ward, 030 power of guardians to pay debts of ward out of personal and real estate, .... 030 guardian to manage estate of ward and supply necessaries out of xn'oflts for ward anij family, and may sell or mort- gage real estate after license, 631 deeds to be executed' by guardian in name , of insane person 631 guardians may be removed and new ones appointed— mode prescribed, ..... 631 guardians to give bonds— conditions pre- scribed 631 finding by jury on trial of insane persons- how to be disposed of if found insane, . 632 if on trial for any offence party foimd to be insane, court to order suchperson to be kept in custody until pleasure of gover- nor in council known, 632 proceedings on arraigiiment of, 633 expenses, how paid » . . 632 apprehension, committal, and disposal of insane persons, 633 overseers of poor of place of settlement of insane person, under order of two jus- tices, to piiy all expenses, &c., and where no settlement gained, county treasurer to pay— relations, &c., may have charge of insane persons, Ac, appeal against order 633 expenses to be repaid to overseers of poor and county treasurer, out of estate of msane persons,- 634 physicians when qualified to act imder this chapter, 634 M. MACKEBEL. CSee Inspection of Provisions, ^c.,) .... 324 MADMEN AND VAG-BANTS. madmen may be apprehended under war- *rant and sent to place of last legal settlement— expenses to be paid out of property if he have any, if not by in- habitants of district 629 vagrants, who shall be deemed, may be summarily convicted and imprisoned, . 630 828 GBNEEAL INDEX. MAGHSTEATES. (See Stipendiary or Police Magistratas.J . 476 MAILS. (See Post Off.ce.) 71 MALICIOUS IISrjUBIBS TO PBOPEKTY. punishment for maliciously firing a build- ing, G77 punishment for scttmg fire to or casting away a vessel, 67S punishment for exhibiting false lights, . . 678 for destroying any part of a vessel wrecked or in distress, or goods belonging thereto, . 678 for setting fire to coal mines, . 678 for setting fire to stacks, coals, orcordwood, 678 for placing gunpowder, &c., near buildings, vessels, ma- chinery, &c 678 for breaking down sawmills, dykes, mill dams or bridges, 678 for damaging trees or plants in gardens, fields, or streets, . 678 for cutting, carrying away corn or grain, robbing gardens, &c. breaking down hedges, &c., vehicles, .Sso 678 for damaging glass, wood, me- tal work, «&c., in any public square or street 679 for killing or maiming cattle, . 679 for wantonly and cruelly beat- ing cattle, 679 for setting fire to com, grain or hay, • ■ • 679 for damaging articles in a mu- seum, • 679 for damaging mines, &c., . . . 679 on second conviction for felony 679 provisions of section 16 not to extend to any damage committed under gi-oiuid by owners of an adjoining mine, in working same 679 principals in the second degree, and acces- sories in felony, how punished 680 destroying buoys and beacons, &c., how punished 6S0 • making vessels fast to buoys, beacons, &c., penalty for 680 damaging real or personal property when no specific remedy provided, punish- ment for, .' •.•.... 680 aiders and abettors in ofl'onces under chap- ter 169, punishable as principal offen- ders 660 trespasses under section 22, done under belief of right, or not being wilful or maIicious,not within that section, . . . 680 fines under section 22, how appropriated, . 680 MAKTSLAUGHTEK. pxinishment for, C64 MAKTUKB. (See. Sea Manure, Gathering ofj 39i MABIIfE COUBTS OP BISTQUIRT. governor to appoint commissioners to form court, 293 proceedings of courts similar to ordinary cotirts, 293 MAKIWE COUBTS OP ENQDIBY— cont'd. jurisdiction of courts, 293 may make orders relative to costs 291 appeal from orders, 294 board of trade may pay costs, 294 remuneration of courts— how paid, .... 294 judgments upon cancelling certificates— re- port to be made to governor and hoard of trade 294 court may require certificate to be delivered up— penalty 294 chapter not to affect jurisdiction of vice admiralty court, 295 MABKETS, PtTBLIC- existingpublicmarkets confirmed— sessions may establish other markets, 381 sessions to make bjse-laws, appoint officers, &«., 381 rents and penalties, how applied, 382 accounts to be rendered annually 382 MAEBIAGBS, BIBTHS, AND DEATHS, BEGISTKATIO]Sr OP- Births notice of birth to be given to nearest deputy registrar, . . 416 his duty thereon, 416 to be registered within six months — ex- ception, 416 illegimate birth, how registered, .... 416 birth at sea, how registered 417 Deaths notice of death to be given to nearest deputy registrar, 417 now bom child found exposed— notice, &c., 417 mqueet, notice of, 417 medical practitioner in attendance to give certificate of cause of death, . 417 deaths at sea, how registered 417 deputy registi'ar's duties, 417 governor in council to define limits of jurisdiction of registrar 418 eiTors in entries, how con-ected, . . . 418 registration returns to be fi-ee of pos- tage, 418 Pees and fines how recovered and appropriated, ... 432 ■ action how conducted, • 422 financial secretary to ti'anseribe particu- lars, and file papers, 422 to keep alphabetical indices of books, . 423 books epen to inspection, 423 financial secretary to transmit manxi- script to, and transcript to be filed by, registrar of deeds, 423 fee for search 423 Marriages record of issue and return of licenses, 410 clergymen to record particulars in regis- ter 416 Penalties for solemnizing marriage withoutlicense or banns, 420 for neglecting to give notice 420 for using imperfect license or altering, 421 for not returning license, or making .annual return, 421 for pmitting to make entries, 421 GENEEAIi IHDEX. 829 MABEIAQBS, BIBTHS,' &o.— co»j«n«ed. Penalties making false statement declared per- jury, 421 neglecting to register birth or death, . "122 neglecting to notify finding new bora child, . 422 medical ■ practitioner failing to supply certificate, &c., 423 for sending or publishing false state- ment of maiTiage, birth or death, . 422 Bemuueration of ofiicers deputy registrar's fees, 120 olergj-man's fees, 420 Be turns by clergymen when and how made, . . 41S clergymen to transmit register an- nually, 41S in case of removal or death of clergy- man, 419 deputy registrar to make returns an- nually to financial secretaiy— what to consist of, . ......'. 119 to return accounts annually to P. M. General 419 Post Master General to retm-n accounts annually to provincial secretary, . 419 MABBIAGE AJfD DIVOECE, COT7ET OTi"- governorto be president— chief Justice or judge, vice president 446 vice president a member of court when governor present, and to preside in his absence, 446 president, vice president, and executive council, to compose court— vice presi- dent and two councillors a quonim, . . 446 jurisdiction of coiu't defined, 446 court may annul man-iage, gi'ant alimony pendente lite, award costs, Ac, .... 446 sentence may be enforced by execution, as in supreme court 446 process, &c., may be signed by registrar, . 446 MABBIAGE LICBlSrSES. governor to sign licenses 415 how distributed, • ....... 415 postmasters to be issuers when convenient, 415 deputy registrars to give receipts for, ... 415 how issued, 415 MABBIAGES, OFPElSrCES AGAIIfST THE LA"W OP— punishment for bigamy, 661 cases excepted out of section one, .... 661 any person not tieing thereto duly autho- rized, and solemnizing marriage, or as- sisting or ofiiciating in such celebration, to forfeit not more than $400 or less than $100 681 MABEIAGES, SOLEMlsflZATION OE— governor in council to prescribe forms, . . 414 definition of terms, 414 persons who ,may solemnize marriage, . . 414 marriage by publication of banns, and by licenses, regulated, 414 officiating minister to publish banns, . . ■ 415 MABEIED "WOMEIT. (See DeeSs by Married Women,) 396 fSeeWUls of Heal and Personal Estate,) . . 397 MAESH AND DYKE LANDS. (See Sewers, ^e.,) 271 MASTEBS, APPEEWTICES, AND SEBVAUTS. minors may be bound apprentices or ser- vants 42t how bound under fourteen years of age, . 425 how bound above fourteen years of age, . 425 indentures to be of two parts, sealed, de- livered and certified in certain cases, by justices, . • ; 433 parents, guardians, or justices, entitled to custody of minor's part of indenture, . 42.5 overseers of poor may bind out pauper minors, 125 tenns of contract, its duration and condi- tions, 425 mode of binding out minors by overseers, 423 all monies, &e., paid by master, to be paid or secured for sole use of minor, . . . 425 duties of parents, giiardians and overseers in respect of children bound out, . . . 123 proceedings on misconduct of master, . . 425 justices after Iiearing, on neglect of master to attend, may discharge minor, with. costs against master, and award execu- tion therefor— minor may be boimd out anew 42B proceedings when complaint dismissed, . 426 party aggrieved thereby may appeal to the supreme court at next term, 423 apprentice absconding or guilty of miscon- duct how pimished, 420 MEETIHG HOUSES, BEPAIES OP— fluids for repairs of churches or meeting liouse to be iirovided for by assessment and apportioned on pew holders, ... 197 notice of assessment, how to be given, . . 197 if assessment not paid within three months, pews may be let until rate be paid, . . 197 possession of leased pews given by com- mittee, who may sue for the rent— mode of renewal 197 if party illegally in possession, 197 a second assessment may be made, if necessary 198 places of worship of Church of England and Wesleyan Methodists excepted, .- 19S MEECHABTDIZE. (See Inspection of Mercliandize, <}c.,J . . . 323 MILITIA. Accounts with vouchers to be rendered quarterly, 143 Acting adjutants appointment of, 124 duties of, 124 pay of, 123 Adjutants appointment of, 133 duties of, 134 pay of, 133 Arms, armories, stores, &o., &c., arms, bonds to be given for, 139 colonel shall order inspection of, 141 commanding officer liable for, . Ill foi-m of bond for, 140 governor may provide 139 inspection of, 14q 830 GENERAL INDEX. MXLlTlA—coiUinued. Anus, armories, &o. in unserviceable condition, ... 141 penalty for disposing, of, . . . . 140 responsibility of senior officer for, 140 subject to regulation of comman- der-in-chief, 139 to be returned when required, &c. , 140 ■where deposited 110 armories, open to use of local forces, . 139 subsidy for erection of, . . . 138 volunteer, excepted 139 bonds for arms, 139 for government projjerty, ... 139 form of, 140 drill grounds may be hired 139 drill grounds open to militia and volun- teers 139 di-ill rooms open to militia, when, ... 139 subsidy for erection of, . . 138 I)enalty for disposing of ai-ms, &c., . . 140 penalty for neglect to return arms, iSsc, 141 storage of government property, ... 139 target practice, constraction of butts for 139 target practice, justices may suspend, . 139 Boards of appeal fSee Musters, (^c.,) 127 Classification and enrollment age how determined, 133 commander-in-chief, governor consti- tuted 1-2-2 commissioned officers, old may be un- attached 122 commissioned officers, unattached.when liable to duty, 123 commissioned officers, when ceasing to be liable to duty 133 commissioned officers, penalty for not performing duty, 133 enrolment, how made, classes, &c., . . 132 orders for assembly for, . . 132 enrolling, punishment for not 123 persons removing shall enrol, 133 line on officers for not enrolling, .... 123 second class, when chapter not to apply to 132 Courts in time of peace affirmation, 134 financial defalcation, &c 134 how assembled 133 how composed, 133 not to adjudicate on criminal cases, . . 134 officers, how ptmished, 133 officer reduced entitled to correspond- ence 134 pay of courts, 134 penalties on witnesses 134 penalties, how recovered, 135 proceedings published, &c 134 prosecutor And judge advocate, ap- pointed, 134 witness fees, . 134 Definition of Terms " commanding officer," "colonel," &c., 143 " man," " militia man," 143 " returns," " year," 142 MILITIA— conWitaed. Enrolment (See ClassificaUon, fc.,J 122 Exemptions (See Musters, i}c.,J 127 Fines, and proceedings for their re- covery- account of to be rendered to adjutant general, 142 amendment of process, 142 expenditure of, 142 justices to receive no fees 142 Halifax, Unes in, recoverable before city court, 142 limitation of actions, &e,, 141 recovery of, &c., 141 Musters, Boards of Appeal, &c. absentees, temporaiy, to malce up drill, 129 appeal, boards of, how formed, &c., . . 127 notice of sitting of, . 128 oath of, 138 proceedings how con- ducted 128 decision of, final, . . 128 not entitled to pay, . 138 mayremitfine, Ac, . 128 arrest, militiamen under pass free from, 131,. boards of appeal, how foi-med, &c., . 127-8 crews of vessels when not fined, . . • 129 decision of board of appeal final, . . . 128 exemptions of crews of vessels, when, 129 on account of sickness, . . 129 from muster, 130 excuse for non-attendance entered, . . 129 feiTiage free to militiamen, when, ... 131 fines, notice in case of, 128 board may remit in certain cases, 138 schedule of, 128 half, where late for drill 129 on officers for not attending meet- ings 129 , for refusing militiamen free pas- sage 131 form of oath of officers, 128 juries, vohmteers ft-ee from 131 notice to persons fined, ........ 128 of muster, how long 128 of orders given at muster, .... 129 officers, boards of, how formed 137 oath of, 138 meetings of, 129 penalty on for non-attendance, 129 in uniform free by rail, when, 130 order, regunental for board of appeal, . 137 railway, officers and men free by, when 130 surgeons to give certificate of sickness, 130 to give standing certificates, . 130 regularly qualified only, to give certificates, 130 penalty on for false certificates 130 penaltj' on for refusing certifi- cate, 130 volunteers, exempt from certain duties, 131 witnesses, how examined before board, &c 128 Organization of Begiments acting adjutants, appointment of, . . 123 adjutants, appointment of, 124 GENERAL INDEX. 8-31 1SXU.TLA— continued. Organization of regiments adjutants divided into two classes, . . 123 pay, how drawn, 123 forfeiture of pay, 134 duties of, 12i acting, duties of, 12.1 colonels may appoint, ... 121 liowpromoted,&c., 124 pay on outposts, 124 artillery, how organized 125 companies, how formed, &c., 123 divisions, how formed, . . 123 officers of, 124 detached,how organized, . 123 districts, how determined, 123 drill, how called out for, 125 days of, how computed 12") 'of officers, how comiDuted, ... 125 ordered from headquarters, ... 125 duration of, 123 penalty for not attending, .... 126 penalty for interrupting 127 penalty for absence from com- pany, 127 liquor, penalty for selling on parade, . 127 may he destroyed 127 officers, how appointed, 123 acting, how appomted, .... 124 non-commissioned, how ap- pointed, 124 complement of, 134 inspecting, how appointed, . . 125 drill of— how computed 125 examination of, '125 pay of adjutants, how drawn, &o,, . . . 123 forfeitm-e of, 124 detailed for outposts, 124 pay of escort of offenders, 126 penalty for refusing to serve as non- commissioned officer, . . . 124 on colonels for not ordering drUl, &c. 126 on captains for disobedience, 126 for not attending squad drill, . 126 for misbehaviour on duty, . . 126 for refusing to escort, .... 126 on sheriff for refusal, 126 for intemipting men on dutj', 127 for interrupting drill, 127 for being dnmk on parade, . . 127 for selling liquor on parade, . 127 for tising mutinous language, 127 for absence from company drill, 127 for refusing duty, &c., .... 127 regiments, mUitia to be formed mto, . . 123 districtsfor,how determined, 123 may be called out under offi- cers of contiguous districts, 123 travel— distance of, for squad and com- pany drills 125 warrant to convey offender to jail, ... 126 Quartermasters their duties, pay, &c., 133 Returns adjutants, duties of, as to, 132 certificate of, to accompany, 132 colonel, penalty on, for not making, . 132 MXIillHA—oontimied. Eeturns company retm-ns, regulated, ..... 131 forms of, 131 officers, responsibility of, as to, . . . . 132 penalty on, for false, 131 pay, not given where not made 132 penalty for false, 131 on colonel for omission to make, 132 quartermaster's certiflcate of adjutant, 132 duties of, 132 returns of, 133 of disembodied regiments to give bonds, 133 of embodied regiments, &c., security of, ... . 133 regimental— how made, 132 Staff commander-in-chief to have control of, 138 regulations as to command of, ... . 138 militia officers not responsible for debts of, 138 officers of, discipline and exemptions, 138 officers of local forces, eligible for, . . 138 officers on pay may be reduced by the commander-in-chief, 138 Target Praotios how regulated, &c., 139 Volunteers absence from inspections, excused, &c., 135 armories of— not open to local forces, . 139 bonds of, how cancelled, &c 137 bye laws, how made, &o., 136 certificates to exempt, from juries, &c., 131 classification of, 135 commander-in-chief may form corni)a- nies, '. . 135 commander-in-chief may cancel com- missions 136 commander-in-cliief to regulate umfoi-m &c., 130 commander-in-chief may combine mili- tia with 130 coimnander-in-chief may order drill, &c. 130 commander-inrchief may appoint coui-ts martial, &c., 137 commander-in-chief may appoint militia coiu'ts ■ ■ - ■ i^'^ commander-in-chief may cancelbond, . 137 commissions of officers, how retained and cancelled 135 corapanies-"formation of, ...... . 135 strength of, 133 fonnation of new, 136 drill of, regulated, &c., . . 130 to receive no issues when no returns made 136 courts of enquiry, how appointed, . . 137 martial, how appointed, &c., . . 137 debts of, recovery of, 137 diaries, how kept, &c 136 drill of, how regulated, &c„ 136 districts of, how prescribed, 135 fines, how recovered, 136 may be imposed by bye laws, . . 136 may be imposed by courts, ... 137 first for actual service, 145 free from jury duty, statute labor, &o., 131 832 GENERAL INDEX. Wn iJTlA— continued. Volunteers juriee, Tolunteers free from duty on, . 131 misconduct of, on duty, i ; 137 misconduct of, punishment for, .... 137 oath of allegiance taien by, 186 officers commissions, ivhen retained, . 135 returns of drill, &c., 136 returns, when not made, no issues, . . 136 sentence when approved final, .... 137 statute lahor, volunteers free from, . . 131 uniforms, how provided, regulated, . . 136 volunteers, section 21 not to apply to, . 125 "Votes for militia service at disposal of com- mander-in-chief, 142 War, Militia in time of— ability of men for, to he ascertained, . . 144 actual service, ability of men for, how ascertained, 144 ballot for, how talcen, . 143 men called out for, sub- ject to articles of war, 143 men for, how furnished, 144 number of men for, . . 146 pay, allowances, &c., on, 143 volunteers first for, . . 145 when the commander-in- chief may call militia out for, 146 articles of war, men called out for ac- tual service subject to, 143 ballot for actual service, how talien, . 143 billetting, governor may malio regula- tions for 143 boats, how provided, &c 145 commander-in-chief to be commanding officer of troops, 142 commander-in-chief may ascertain abi- lity of men, &c., 144 commander-in-cliief may order drafts, 145 commander-in-chief may order number to be called out, 146 commander-in-chief may select officers, 146 commander-in-chief may accept volun- teers for New Brunswicli, 146 conimander-in-clrief may call militia into actual service, 146 coiTporal punishment, militia man not subject to 143 dismissal, when not entitled to 143 drafted men deemed enlisted, &o., . . 144 punislunentfor non-atten- dance, 145 famUy, provision for in case of loss of man, 143 family, where several sons in, one excused, ' 146 false alarm, punishment for making, . 147 guards, how and when paid, ...... 147 New Brunswick, on invasion of, volnn- teer service of militia may be ac- cepted, . 146 pay, allowances, &c., on actual service, 143 punishment, not subject to corporal, . 143 reserve, local, laow formed, &c., . ... 147 rosters, duties regulated by, 146 place on, on removal, 144 IUXLITIA— continued. War, Militia in time of sons, where several drafted in ono family, son, only, of persons over sixty, &c., exempt. 147 substitute, how provided 144 for clerks in army or navy, . 145 training,^number of days of, 145 volimteers to be first for actual service, 145 for defence of New Bruns- wiclc, . . 146 wounded, how supported 143 MILL DAMS punishment for destroying, 678 (See River Fisheries, J 371 CSee Rivers, <^c.,) 3S9 MILLS AND MILLEKS. tolls for grindmg wheat, &c., regulated, . 322 tolls for hulling barley, bolting flour, &c., regulated, 322 quantity of grain ascertained by sealed meastire, 323 fine for taking or demandmg illegal toll, . 323 miller refusing to grind, &c., to forfeit eight dollars for each offence, 323 proprietors of steam mills may refuse to re- ceive grain, &c.,— for so doing not to be subject to forfeiture, 323 millers to keep scales and weights, under penalty of $20, 323 MINES AND MIBTBKALS. Commissioner and Deputies how appointed, 84 to have power of justices, 94 duration of office, 94 to give bonds, 94 salary, 94 shall not be elected, vote, &c 94 penalty on— for voting, &c 95 not to be iuterested in mine, &c., ... 95 penalty for, 95 Governor to appoint commissioners— define dis- tricts, &c., 91 to appoint inspector 94 to fix salaries ... 94 Inspector of mines liow appointed, 94 duration of ofiice 94 to give bonds, ; 94 not to be elected, vote, &c., , 94 penalty for, 95 not to take part in elections, or be inter- ested in mine 95 penalty, 95 Salary of commissioner- $2|000| 94 of deputies and inspector fixed by go- vernor, . ...... 94 Terms deduition of, 93^ GOLD JUNES. AUuvial mines how laid out, 9S Appeal &om decision of commissioner as to ftaud in books, &o., 104 GENERAL INDEX. 833 MIBTES AND MIlJERALS-conWimed. Appeal from deputy to chief commissioner, . . lOS fi'Om chief commissioner to supreme court, 107 hond 107 when perfected, evidence to be sent to prothonotary, 107 when sent to jury 107 final judgment on 107 from decision of justice, 108 Applications book of, to be kept, 95 entry of, 95 return of, 95 how made, indorsement, &c., 96 advance paid on, 96 Arbitrators between owner and applicant how ap- pointed, .... 96 to be sworn — duties, &c 96 may select a third 97 when custos to appoint 97 award of two, final, 97 not to be set aside, &c., . . 98 Areas orm of, 95 marked on deputies plans, 96 applications to define 97 when applicant entitled to enter on, . . 97 labor on, how regulated and computed, 99 staked off outside gold district, .... 100 of prospecting licenses, 101 holder of license may select areas, . . 102 new discoverer entitled to No. l, . . . 102 Bond on prospecting license, 101 for licensed mUls, 102 on appeal to judge 107 on appeal from justice, 108 Books ofreoord for applications, 95 of licensed mill owners, 103 entries made therein 103 fraud in, how punished, 104 C ommissioner to be provided with application ibooks, 95 deputies to make and return plans, . . 96 deputies to endorse tune of application, 96 applicants to deposit agreements with, 96 when to permit applicant to enter, . . 97 when to arrange with owner 101- may issue license to search, 101 licenses to be signed by 102 to enquire into ; fraud, 104 to pay return upon royalty, 101 to enquire into alleged forfeitures, . . 106 appeal from decision of, ...... . 106-7 may remove party mining illegally, . . 107 Damages applicants may agree for 96 how settled by arbitration 96 when paid, applicant may enter, ... 97 payment to exonerate party making, . 97 how paid in disputed title 98 other, lessees liable for, 98 bonds given for ini prospecting licence, 101 105 MINES AND MINEBAIiS-con«nu6rf. Damages in case of prospecting licenses— how recovered, lOl Discoverer entitled to free lease, 102 how far discovery distant ftom iniown mine 103 District how established 95 plan of to be kept, &c., 96 application for mines without, ..... 100 Evidence to be sent to prothonotary on appeal, . 107 Forfeiture of leases, 98 for working mm without license, ... 104 for fraud, 104 alleged, of lease, how investigated, . . 106 for illegal mining, 108 I'ree mine discoverer entitled to, 102 owner of, entitled to royalty 105 Judge may order case to jury, &c., 107 shall pronoimoe judgment, &c., , ... 107 Xiabour on areas regulated 99 how computed, 99 where part performed, 99 forfeiture where not performed 98 return of by lessees 105 Quartz mines i how laid off, 95 Ijeases duration ol, surrender, &c., 98 forfeiture of, 98 holders of, to use bonds, for what pirr- poses 98 new, of part 100 where forfeited, rights to revert, ... 100 liolder of prospecting license, entitled to, 102 nottoaffectcultivated lands, when, &o., 102 royalty reserved on, . . 102 new discoverer entitled to free, .... 102 holders of to make returns, &c., .... 105 liable for royalty, &c., ... 105 liable to action, when, ... 106 alleged forfeiture how investigated, . . 106 Xiioenses for mills how obtained, &o 102 definition of term 102 bond for, 102 holders of, to keep books 103 entries in, 103 holders of, to pay royalty 103 on faUure liable 103 how to make returns, . . . 103 forfeited for working mill without, . . 104 may be revoked for fraud, 104 holder of, liable to forfeiture, &c 104 holder of, may surrender 104 on surrender— to cease, &c., 105 Mills, Iiicenses for CSeeLicensesforMitts,^c.,J 102-6 Penalty for working mills without license, . . . 104 884 SENERAL INDEX. inilES AND MlWBB,&L8-~continuad. Penalty for fraud in books of ruiU-owners, ... 104 for illegal mining 107 how recovered, &c 108 Plans to be prepared and areas marked on, . 96 general plan, 96 Private lands agreement relative to 96 aibitration to settle damages to, . . . 96-7 to be used formining purposes, 98 damages to — on j^rospecting license, . 101 Prospecting licenses hnw issued, application for &c., ... 101 duration of, 101 holder of— entitled to renewal, . . . • 102 entitled to select areas 102 Beturns of deputy commissioners made weekly, 90 made by licensed mill owners, .... 103 of lessees of mines, how and when made 105 Boyalty how paid, • . . • 103 remedy where mill owner fails to pay, 103 return )ipon how paid, 104 lessee liable for— when, &c 105 returaed on free mine, . . • 105 action for— against lessee, ....... 106 how brought, &c. , 106 Abandoned mine how dealt with, Ill Appeal from chief commissioner 112 Application for license to explore, 108 not valid unless accompanied by pay- ment, .... 109 for renewal of license 109 for license to work 109 Arbitration proceedings relative to, . ■ 110 Areas on license of exploration, 109 holder of license may select, 109 spaces between, reserved Ill Bond for damages, &c., how given, 109 Books of registi-y kept, &o 112 Comioissioiier may grant licenses to explore, .... 108 shall cause lands to be sui-veyed, ... 109 cost of survey to be defrayed by, ... 109 may extend time for license, 109 may grant licence to work, 110 to serve notice, &c., Ill may lease crown lands, &c., 112 Damages to private lands, how ascertained, . . 109 applicant to pay damages on license to work, 110 Forma to be dame as now in use, &c lis Governor may declare special district, 113 jnay make regulations, &c 113 MIITES AOTJ 'MmrBUALa—conthnted. Leases how and when granted, HO governor may grant— of larger area, . 110 of coal mines, duration of, 110 spaces between areas reserved in, . . ill subject to royalties, Ill holders of, to make returns, Ill chief commissioner may lease crovra lands, 112 not void for want of registry 112 Iiicenses to explore, how granted, &c., 108 payment for, 109 contents of, &c. 109 how renewed 109 holder of to settle damages, 109 to select area, 109 to work, how granted 110 duration of, 110 without previous exploration license 110 Royalty defined, &c. Ill Survey of lands for license, 109 MrKTEBAIiS. (See Mines and Minerals, J 93 MIBTSTEBS. (See Marriage, Solemnization of,) 414 MXBTOES. (See Descent of Meal and Personal Estate,) 748 (See limitation of Actions,) 643 (See Probate Court,) 447 (See Wills of Real and Personal Estate,) . 397 MOITTH. how construed in acts, 3 WOWETZ OBDER STSTEM. (See Post Office,) 84 MOBTGAQES. (See Foreclosure of,) 403, 435 (See Begistnj of Deeds,) 742 MOOSE. (See Preservation of Animals,) 364 MUmciPAliITIES. any coimty desiring to have municipal government, how testified, 487 county incorporated imderthis chapter to be a body corporate, ......... 488 council, who to consist of, ....... . 488 time of elections, mode of, ....... . 488 ten days notice to be given 488 division Of conncillors 489 time of election of Councillors, 480 mode of holding elections, 489 notice to councillors 489 presiding officer and clerk sworn, ..... 480 vote, where to be given, . 490 elector's qualification, 490 councillor's qualification 490 persons disqualified 490 persons exempted from bemg elected coun- cillors 490 qualification of warden, 490 votes for warden, how ascertained, .... 491 warden not having majority of votes, pro- ceedings, ... 491 GENEEAL INDEX. 835 MiraiOIPAIiITIEa-M!(»w!inu04 affirmation to be made by certain persons, 504 city of Halifax exempt from provisions of this chapter 504 actions against criminals, how brought, . . 505 judgment against corporation to bear in- terest, • . . . . 505 coroners to be sworn— not to affect present coroners, 505 jurisdiction of sessions and gi-and jury, when taken away, 505 power of grand jury xmder certain chapters given to municipal corporations, . . . . 505 wardens, officers and councillors, entitled to protection afforded justices of peace and constables, 500 formation of judicial disti'iots, qualification of judicial commissioners, 506 duration of office of judicial commission- ers • . . 506 judicial commissioners not to be appointed from council, 506 jurisdiction and authority of commission- ers, 505 cause of action, one of party must reside in district, 500 place and tiiiie of meeting of commission- ers 606 commissioners, power-to administer oaths, 500 aijpeal from their judgment,! 50« appointment of clerks qf disti-icts, . . . . 5S7 fees (jf witnesses, . . , 607 836 GENEKAL INDEX. MUliriCIPAIiITIES— C(m«tni«ed. power of justices of peace, when to cease, 507 fees of judicial commissioners, constables, and witnesses, provided for 507 salaries of commissioners — not to be em- ployed as attornies 507 municipal corporations may make byelaws, 507 powers, protection of justices transferred to commissioners 507 oouncU may alter ^district and number ot counciUors, 508 meeting of coimcillors, 508 right of warden to Tote 508 provisions of chapters 35 and 03 extended to municipalities, 508 public property of municipality to be under management of council 508 assessmentforpaymentof lands purchased, 508 election of warden and councillors by bal- lot 509 commissioners of sewers, &c., to be ap- pointedj by council, 509 commons under control of council 509 powers and duties of municipality clerk, . 509 power, &c., of judicial district commission- ers 509 continuance of clauses, 509 powers in respect of seamen, 509 votes of money, how made 509 counties to be laid off in municipal town- ships 509 division of districts, when to be made, . . 510 number and limits, how decided, 510 inhabitants of municipal townships to be bodies corporate, 610 nnmber of municipal council, 510 first election of miiuicipal councillors, when held 510 succeeding elections, when held 510 elections, how and when held 510 town reeves, how elected,! 511 meetings of oounoil, how summoned, ... 511 MTJMTCIPALITIE 3— continued. town reeves to preside at all meetings," . . 611 residence necessary to qualify to vote, . . 511 township council may divide township into electoral wards, &c 511 overseers of poor, how appointed 511 fees paid to officers presiding, &o., at first elections, 512 clerk and treasurer, how appointed, ... 612 what portion of chapter applicable to town- ship municipahties, 512 words applicable to county to be applicable to township, 512 on township municipalities coming in oper- ation, certain sections shaE cease to apply, 512 Clauses for adapting Cotjxtt Municipality TO Township Incokpokatioxs. on adopting township incorporations, what sections to apply, . '. 513 no election of county councillors shall take place 513 town reeves to constitute municipal coun- cil, and shall hold oflce for two years, 513 election for wardens to be from town reeves — how regulated, 513 warden to have authority of county coim- cUIors, &c 513 time at which elections are to be held— rela- tive duties of county and township councils, 613 when election of township councillors is to take place — separation of county and township affairs— duties of oflicerB, &c., consequent thereon, 514 schedule of oaths 514-15 schedule A, * 515 MXnSriMEH'TS OP TITLE. punishment for stealing 075 MUKDEK. punishment for, 664 N. NATUKAIiIZATIOBT OF ALIEITS. (See Aliens, ^c.J 153 WAV All PROPEBTY. property held for naval service to be vested in lord high admiral or commissioners for time being, 119 lands subsequently purchased to be vested in like manner, 120 in case of death, removal, &c., to be vested in successors 120 titles of commissioners to be used in deeds, &c., 120 power of commissioners to seU,'lease, &o., 121 commissioners may prosecute and defend actions, 121 action not to abate on death, 121 may recover and be liable to pay costs, , . 121 ■TSrAVIO-ATIOH'. ( ^ee Stmm Navigation,) t . 295 WAVY. (See Army and Navy, Offences relating to,) . 655 (See Goods, Exportation of, and Draw- backs,) 62-54 aSTE'W BKUBTS-WICK. voluntary service of militia for defence of, &o., 146 ira:"WSPAPERS. (See Post Office,) 73 WOBMAL SCHOOL. ( See Public Instruction, (^c.,) 209 NOTABT PUBLIC. being a barrister of the supreme court of this province may take acknowledg- ments of married women, and adminis- ter oaths to subscribing witnesses rela- tive to execution of deeds, &c.^ and certify same, to same extent as justice pf the peace, . . . , 481 GENERAL INDEX. 837 noxious ANIMALS. eesBions may give rewards for killing, ... 360 proceedings for obtaining bounty for killing a wolf, 366 justices duty on application— liis certificate, 366 bounty 367 NUISABTCES. actions for— limitation of 204 wlien removed to supreme court, how prosecuted, . . 204 cellars, how cleansed, 203 dwelling-houses, to have drains and privies, 202 how vacated when public health in danger, . . . 203 fish, sale of uncleansed, prohibited 203 fish market may be opened subject to pro- visions of chapter 55, 204 forfeitui-es for violation of orders 204 health, board of— to constitute a court, . . 201 health, board of— to make orders for pro- hibiting sale of uncleansed fish, .... 203 health inspectors— appointment of, ... . 201 compensation of, . ■ . 202 duties and powers of, 201-3 limits of jurisdiction of, . .' 201 to be sworn, .... 201 health, courts of— how constituted, .... 201 health, courts of— powers and duties of, . 203 NXJISANCES— continued. , justices may order removal of offensive substances 203 offensive substances, how removed, &o., . 203 penalty for not providmg drains and privies 203 penalty for sale of unwholesome food, . . 203 penalty for violation of orders, 204 penalty how recovered and applied 204 privies and vaults, dwelling houses to be furnished with,. 202 privies and vaults, healtliuispectors to have charge of, 201 privies and vaults, how cousb-ucted, ... 302 privies and vaults, how cleansed, when offensive, 203 privies and vaults, how and when to be emptied 202 sanatory orders— by whom made, . ... 204 sessions may prohibit sale of uncleansed flsh, &c 203 sessions may act as court of health in cer- tain cases, 301 sessions may appoint health inspectors, . 201 sessions may regulate slaughtering of cattle, 204 slaughtermg of cattle— by whom regulated, 204 vacant lots— how cleansed 203 waste water— how to be disposed of, . . . 203 (And See Health, Boarcls of, ij-c.,J . ... 193 o. OATH. justice may administer when no particiUar direction given 4 meaning of word, 3 Quakers, &e., may affirm in lieu of, ... . 4 OFFICEKS APPOHiTTED BY G-OVEK- BTOK. to remain in office during pleasure only, . 5 OPFIOEBS OP THE CUSTOMS fSee Customs, Officers of, ^c.,)i 29 OEDEBS. power to make, to include power to alter, revoke, or make other, 4 OVEESEBBS OP POOB. (See Bastard Children,) 357 (See Poor,) 34s OYSTEBS, PBESEEVATIOlf OP— oysters placed in beds not to be disturbed, 366 penalty for destreying or injuring &c-> 366 penalty, how recovered, 3136 penalties may be imposed by ses- sions, 366 taking of, to be regulated by ses- sions, see PAJIDON TO PELONS. effect of, as to subsequent conviction, . . . 694 PAETITIOU OP IiAJSTDS. (See Lands, Partition of,) 597 PABTWEBSHTPS. Alteration in names of partnership to constitute general, 315 Arbitrators court may order by rule, 312 may appoint when parties neglect, 312 shall appoint' third person 312 to be sworn— form of oath 312 niode of proceeding by, , . , 313 PABTWBESHIPS— coirfiBKeci. Arbitrators power to enforce attendance of wit- nesses 313 Assignments preferential when void 316 Awaid how made, &c 313 Certifloates for special partnerships, 314 to be verified under oath, 314 to be filed mth registrar of deeds, . . . 314 Cost? arbitrators to have power to direct, , . 31? GENEEAL INDEX. PABTJSrEB3HIPS^-flonport of poor, when, 353 Settlement meaning of word, 34S how gained i persons entitled to, 349 of children and married women, . . . 349 to cease when new acquired, 349 in case of division of district 349 removal to place of last, 350 examination of insane pauper as to, . 350 where parents have gained, children supported, 350 appeal in cases of disputed, 350 costs on appeal, how taxed, &c., ... 351 TownsMps definition of word, 348 liable for support of poor after notiqe, . 351 penalty for improperly briuging pau- pers into, 361 inhabitants of, to hold two meetings an- nually 361 overseers of poor in, to give notice of meetings, &c 351 may be amerced, when, &c., 353 Town meetings days of holding, &c., 351 notice for 351 proceedings at, 351 maybe adjourned, 352 deficiencies voted at next, 352 when not held, sessions may amerce, . 353 clerk and treasurer appointed at, . . . 345 106 POOSf— continued, Town meetings clerk under direction of, 354 treasurer under direction of, 355 Treasurer how appointed, salary, &c 354 under direction of meetiug— duties, &c., 3p5 Warrant general, may issue, when, &c., . . . . 352 form of, 3.55 POOE DISTBICTS established districts conflnnedimtU altered by law, 356 on application of twenty or more rate payers for division into districts, ses- sions may pass order calling on parties interested, 356 copies of such order, settingforth proposed boundaries, shall be posted up in town- ship sought to be divided, thirty days previous to ensuing sessions, 35G at such sessions townshij) may be divided, and name given, 35C sessions may, by order, apportion expenses of present paupers among such dis- tricts—future paupers to be charged where settlement gained, 356 expenses may be re-adjusted by subse- quent order of sessions, 35tf rates pending at date of first [order not to be affected thereby 357 POOB KATES. (See County Assessments,} 171, 175 POBK. (See Insjjection of Provisions, i}c.,J .... 329 POST OPPICE. under control of governor in coimcU, . 71, 72 governor may establish posts, and appoint olficere, 72 post master general and post master to give bonds, 72 governor in coimcil may make orders for carrying out provisions of chapter, &c., 73 orders to be published, 72 rates of postage, how regulated 72 ^ coimty postage, 72 rate for uni^aid letters, 72 division of postage on packet letters to United States, Bermuda, Newfound- land, andrate, 73 what newspapers free, 73 rate for other newspapers, 73 exchange papers tee, 73 book postage, 73 periodicals, rate on, 73, 74 parcel postage, 74 postage retained where received, ...... 74 British packet postage, how accounted for and paid, 74 franking privilege abolished 74 postage stamps, how issued and sold, . . 74 stamps of other colonies evidence of pre- payment 74 apportionment of United Kingdom packet postage 74 packet postage, how paid over 74 express mails, agreement as to 74 agreement may be modified 7& 842 GfENERAL INDEX. POST OFFICE— continued. government and parliamentary printed matter free, 70 conditions as to forwarding printed papers, 75 letter postage chargeable if conditions not olDServed, 75 post master general shall decide questions of postage, 75 in cases of removal, newspapers, &c.,to he re-directed, 76 ship postage 76 ship letters, how delivered 76, 77 way oifioes, how estahlished, 77 way office keepers, liable to penalties as postmasters 77 receiving offices, city of Halifax, 77 extension of post accommodation, how provided for 77 governor may agree with other colonies as to transmission of newspapers, &c., . 77 British, foreign, and colonialpostage marks, received as evidence, 77 officers exempt from juries, militia, and township or city offices 77 acts of misconduct, what, and how pun- ished, 77, 78 abettors punished as principals, 78 mail carriages not liable to ferriage, ... 78 penalty on ferryman for refusal, 78 letters to be forwarded only by mail, ... 78 penalty— exceptions— proviso, 78, 79 letters sent illegally may be seized 79 by whom and to whom postage payable- recoverable in civil action 79 powers and duties of postmaster general — ■who deemed deputies — suits in name of P. M. G.— appointment of officers not to be questioned, 79, 80 soldiers and seamens letters privileged, . 80 propertyin letters in party addressed,. . 80 post master general not liable for lost letter, 80 offences defined, and mode of punish- ment 80, 81, 82 offender, haw indicted and tried 82, 83 liroperty to be laid in post master general, 83 value need not be stated, 83 suits may be compounded, 83 penalties recoverable by post master gen- eral by civil suit 83 when penalty exceeds $80, pimishable as a misdemeanor, by indictment, .... 83, 84: competency of witnesses and burthen of proof, - 84 salaries of officials Si definition of terms, 84 money order system 84, 85 POTATOES. (See Inspection of Provisions, ^c.,J . . 334, 340 poirarDS. (See Fences, (fc, and Impounding of Cattle,) 189 PBACTICE ACT. (See Supreme Court, Practice, #c., in,) . . 516 PBESERVATIOW OF BOADS. (See Roads, Preservation of,) .242 PBEVElTTIOir OF smugglingi-. (See Smuggling, FreroenMon of,) 55 PBIM-CIPALS Air£) ACCESSOEIES. (See Criminal Justice, Administration of,) 685-6 (See Malicious Injuries to Properly,) ... 680 PBIVIES. (See Nuisances,) 201 PBOBATE COTJBT. Administration by whom granted, .447 how granted in ordinary cases 447 where granted when deceased died out of the province, 447 applications for — ^how made 447 to whom granted, and in what order, . 448 in applications for, rights of absent per- sons reserved 418 Administrator another may be associated with next of kin, 448 out of province to be made, — when . . 448 to give bonds, 448 oath of, to be in writing 449 when security not given by— judge may appoint another 451 may adjoiim sale of real estate, .... 451 affidavit filed vrithin one year 'evidence of sale, 452 deeds to be as effectual as if made by deceased 452 may be declared trustee andrequired to convey lands, &c 452 de bonis rum may execute conveyances on contract of deceased executor, . 452 de bonis non may enforce judgment re- covered by deceased executor, . . 452 when a creditor shall file a verified ac- count one month before distribution, 454 proceedings when required to render accoimt,' 455 to produce vouchers, 455 after eighteen months to make final dis- tribution, 456 may be cited to account after eighteen months 457 costs to be paid by— when 457 ten days notice to be given before cita- tion 457 may cite co-administrator to account, . 457 commission of— how allowed, 497 when removed may be cited to accoimt by successor, 461 may be ordered to pay money into bank, 461 Advertisements executors to advertise in gazette, ... 450 of sale of real estate under license, . . 451 of adjournment of sale, 452 affidavit of executor, &c., evidence of, 452 in gazette^for absent parties, on divi- sion of estate . , . . 45g in gazette for absent parties on final settlement 455 Affidavit form of, to be annexed to accoimt against estate, 462 Appeals from decision of judge on final settle- ment, 455 to supreme court, how regulated, bonds, &c., 459 GENERAL INDEX. 843 PBOBATE COVRm-cotttmued. Appeals to he stay of proceedings, 439 supremo court may remit to probate court, 459 licariug of appeals, &c 459 entering of appeal and consequences of ■ neglect 459 papers to be ti-ansmitted by judge of probate, &o., , 459 court of, may enforce return of papers, 460 may be allowed by supreme court within six months 460 costs may be allowed by court of, &c., 460 bonds, how prosecuted 460' court of, may order feigned issue, regu- late trials, &o 460 Appraisement warrant of, when issued 450 when returned, 450 Appraisers fees of, . . 450, 652 oath of, to be taken before justice, . . 450 Attestation of accounts, fomi of, 462 of accounts against estate to be in form in schedule, 450 informal, provided against, • 450 Bonds for administration, form of, 464 for license to sell real estate, form of, . 465 to be given by administrator, 449 on death or insolvency of surety, new bonds required, 449 to be in form now used 449 given by heir — to whom all estate given on division 453 on appeals from decision of judge, . . 459 executor may be ordered to give, . . . 460 when and how to be prosecuted, . . . 460 Citations to widow, &c., to take out administra- tion, 448 to executor, &c., to give security for sale of land, 451 to parties interested on division of real estate, 453 for settlement of estate, 455 to whom directed— how served, and service verified, 455 Avho need not be served with, 455 to executor to account, 457 to co-executor to account, 457 to previous administrator by successor, 461 Conunissions how allowed and apportioned, .... 457 Costs judge to tax and award costs on division of real estate, 453 of service of citation by whom borne, 455 how allowed, appropriated, review, &c., 456 bond for, on appeal, 459 may be given by court of appeal, &c., 460 court of appeal may order costs of feigned issue, &c., 461 value of estate as to, how ascertained, 461 Debtor named executor, not to e.^ting^ish debt, 454 PHOBATE OOXTBT-conW/raed. Debts proceedings where personal estate in- sufficient for payment of, 430 imdevised real estate first sold for pay- ment of, 43X proceedings for disposal of desperate, 454 vouchers to be prodxiced by executors, &c., 455 executors, &a., to pay after eighteen months, 456 preferential, 453 mortgages and judgments not Affected, 458 Decrees to be regularly filed and registered, . . 459 book for registration of, 458 may be appealed &om, 469 Division of real estate judge may order, 152 prooeediugs where cannot be made without prejudice, 453 order made and guardians appointed, . 453 judge may order dower assigned, ... 453 made by three freeholders 453 not valid unless two concur 453 parties cited before confirmation of, . . 453 confirmation of, and costs, 453 judge may order plans, 453 proceedings in among collaterals, . . . 454 order for, how made, 454 Dov7er assigned on division of real estate, . . 453 Evidence affidavit of executors, &c-, evidence of advertisements, 432 conveyance, presumptive evidence of regularity, 452 final settlement conclusive evidence of what 450 Executor to file inventory withm three months, . 449 may file further inventory, 449 to advertize in royal gazette 450 may make affidavit to obtain license to ■ sell real estate, 450 to give security before license, .... 451 may give notice of sale, 451 may adjourn sale, 451 when creditor's debt not extmguished, 454 to file private account one month before distribution, 454 may apply for citation for final settle- ment, 453 to produce vouchers 465 after eighteen months to make final dis- tribution, 456 may be cited to accomit after eighteen months 457 may cite co-executor 457 penalty on, for neglect to jjrove will, . 460 proceedings where executor refuses to act, iea may be ordered to give bonds, .... 400 when removed may be cited to account by successor, 461 specific legacy to, in lieu of commis- sion, , 461 844 GENERAL INDEX. PROBATE COUET— eo»Mn«ed. Pinal settlement citations for, form of— how served, &c., 455 all persons interested may contest, . . 455 executors to produce Touchers 465 hearings may he adjourned, 456 to he conclusiTe evidence of certain facts, 456 powers of court on, 457 Forms schedule of, 462-465 G-uardiaiis may he appointed on division Of real estate, . , 453 Guardiansliip letters of, to he registered 438 Insolvent Estates how declared and order how pleaded, 454 order of distrihution of assets of, . . . 457 Judge how appointed, 447 prohate to he granted hy, 447 when interested, &o., .447 his duty when wills proved out of pro- vince, 447 shall reserve rights of persons out of province 448 shall reduce to writing testimony on proof ofwills, 448 may associate others with next of kin, 448 may require new honds, when, &o., . . 449 may grant licenses to sell or mortgage real estate, 430 may appoint another to act where secu- rity not given, 451 may order division of real estate, . . 453 real estate to oldest son, . . 453 dower assigned to widow, . 453 to approve, reject, or amend division of real estate 453 may order plans of division 453 whole to one collateral heir, 454 may gi'ant order of insolvency 454 may tax and apportion costs, 456 may cite ^administi'ator, &c., to ac- count on application, 457 may order distrihiition of surplus assets, 457 not to he counsel or proctor, &c., . . . 458 in certain cases may appoint registrar temporarily, 458 to transmit papers on appeal, 459 may grant administration with will annexed, 460 shall have power to issue all necessary process, 461 may order money to he paid into hank, 461 may authorize persons to administer oaths in certain cases, 462 may appoint surrogate, ........ 461 fees of, ......... t .,..,.. 650 Letters " ad colligendum," to be registered, . . 459 of guardianship, to be registered, ... 459 Oaths of executor or administrator to bo in writing, 449 to Ije taken by appraisers, .,.,,,, 450 PEOBATB COXTR'S— continued. Oaths of insolvency, 454 when party unahle to appear 462 Procter parties not obliged to employ, 461 fees of, 051 Beal estate license for sale of— how gi-anted 450 undevised to be first sold 431 notice of sale — how given, 431 when administrators may he required to convey, 453 conveyances of— to be same as if made by deceased 452 division of, . . . 453-4 fees of, 631 Registrar how appointed, 447 to enter applications, &c 447 not to act as counsel, 458 to have charge of books, 458 when sick, &c., jtidge to appoint, . . . 43S shiiU keep sets of books, 4.58 may swear appraisers, 430 Schedule of forms, 462-465 Testimony respecting proof of wills to be reduced to writing, 448 ■Wills applications for probate ol— how made, 447 applications for filing, &c., wills proved out of province, 447 how proved when witness absent, &c., 448 how registered, 458 forfeiture for neglect to prove, .... 460 when and how taken from oflice, ... 461 PKOCTOES. (See Barristers andlAttornies,) 481 PBOFABTE SWEAEIIJ-G. punishment for, CJjO PEOmSSORT KTOTES. ( See Bills of Exchange, ^c.,) 319 PROPERTY, rBTJTJRIES TO— (See Malicious Injuries to Property,) . . . . 677 PROPERTY, TEtrSTEES OP PUBIiIC— grand jury to appoint records to be kept, . 380 tiTistees a body corporate, sso lands and property possessed, &c., for 20 years to vest In trustees, ....... 380 lands leased controlled by sessions, ... 360 leases limited to 7 years sgo bj'e laws, how made, ago accounts to berendered annually sgo penalties and rents, how recovered, . . . sso expenses to form coimty charge, ssi. lands and property exempted ssi appointment of trustees of school lands, . 381 vacancies how filled, sgj PROTHOETOTARIES AH'D CLERKS OP CRO"W]Sr. appointments, how made y^ prothonotary to make return on oath, . . . I64 tp giye bonds as directed by governor, . . 164 counjry prothonotaries to act as clerks of tlie;crown, , .... 104 salary, pf J. W. utting, bow paid, , , . , J6^ GENERAL INDEX. 845 PBOTHONOTABIES, &o.~coniinued. fees for service of prothonotaries, uudor chap. 70 "of railroads," 2n9 may grant order for furtlier time to plead, . 532 particulars, 519 may tax costs and enter Judgments in cer- tain cases, 545 may grant order to stay proceedings until seciuity for costs he given, 547 clerk of the crown to include deputy, ... 3 prothonotary t» include deputy, 3 prothonotary, fees of, 643-4 PROVIITCIAL LOAlSr. governor may open cash accoimt witli city hanks or others, and horrow money, . 160 amount limited, monies how drawn, . . . 160 puhUc funds, &c., pledged for repayment, 160 accounts and vouchers to be laid before committee of legislature, . . . . • . . 161 PBOvnsrciAi, secketaey. (See Costs and Fees, J 643 • (See Salaries,) 155 PBOVTSIOlirS. (See Inspection of Provisions, ^'c.,) • . , 330 PUBLIC ACCOUlfTS. to be rendered in dollars and cents, .... 321 (See lieceiDer General, cf'c.,J 157 PUBLIC BuiLDnsro-s. (See TForks, Board of, J 83 PUBLIC EXHIBITIOlirS. license for how obtained, 391 mode of proceedings where clerk of license distant, 391 fees on granting license 392 flue for exhibiting without license, how re- covered, 392 duty of clerk of license as to flues, .... 392 city of Halifax exempt, 392 PUBLIC POBTIflCATIONS. private property, how appropnated for for- tifications, , . 149 value when found how and to whom paid, 149 fines on sheriff and jury' for neglecting duty, 149 PUBLIC GBOUNDS, SUPEKVISOBS OP— supervisors, how appointed, 244 made a body corporate, 244 title of all public grounds in township vested In them 2i4 leases of, how made— accounts to be filed- rent, how appropriated 244 certain lands, &c., exempted from opera- tions of chaiJter, 245 encroachments andincumhrancesonroads, how dealt with, . . ., 245 proceedings in case of dispute, 243 fine for disobeying supervisors or sessions orders, 245 pxpenses, how borne and recovered, . . . 245 order of supervisors, how proved 246 record of proceedings to be made and filed with clerk of peace, 246 appeal flrom order, 246 costs of appeal, (.how paid if order con- firmed, ................ 246 \vj)ei» orcj^r r?vevsed— costs, how paid, , , 246 PUBLIC GEO WDS, &o.— continued. supervisors may make orders for widening road, 246 proceedings to be had at sessions for widen- ing roads, 246 sessions may appoint three freeholders to widen roads, and subsequent proceed- ings, 246-247 roads widened amder last tliree sections not to exceed 66 feet 247 disputes as to line or width of road, how settled, ; ... 247 sections 13, 14, 15, and 16, not to apply to city of Balifax 247 what roads affected by chapter, . . . . 247 PUBLIC DSrSTBUCTIOBT. Academies annual grant to, how applied 211 • when grant undi'awn, how applied, . . 211 Assessment bonus to schools supported by, .... 212 majority at meetings to decide whether school supported by, 213 how made and collected, 213 how made for buildings, &c., 214 Books how purchased and distributed, . . . 216 Chairman of school commissioners how elected, . 210 of school commissioners to be one of revisal commissioners 210 Commissioners how appointed 210 meetings of, 210 special, for revising districts 210 to lay off school districts, &c., 210 board may alter sections 211 to appoint examiners, 211 to p\inish drunken teachers, 211 clerk of— to pay teachers, 211 to draw monies semi-annually 212 to allow bonus to certain schools, . . . 212 may hold real estate, &c., 212 to make annual returns, 212 ' to decide certain disputes, 215 school libraries imder control of, . . . 216 books under control of, 216 Common scliools amoiuit appropriated^or, 211 monies for— how appropriated, .... 212 CounoU of executive coimcil to form 208 to superintend normal school, &c., . . 209 to appoint inspectors of schools, . . . 309 to direct location of academies, .... 211 may draw monies for school libraries, 216 ^or school books, . 216 Drunkenness of teachers, how punished, 211 Examiners for normal school how appointed, ... 209 committee of, how appointed, &c., . . 211 their duty 211 Governor to appoint lorincipal of normal school, &c., 208 to appoint provincial superintendant, . 209 cpttnty conimissiouers, . , , zip 846 .GENERAL INDEX. PUBLIC INSTBVCTION. -continued. Governor may advance monies for library and school books, 216 Inspectors how aijpomted, 209 dutiesof, 209 to give bond— pay of, 210 may call annual meeting, 215 .Libraries aIIowancefor,howdrawn, appropriated, &c., 216 License applicants for, how examined^ .... 211 qualified teachers must hold ; 215 Meetings of commissioners, when held, 210 special of commissioners, how called, . 211 annual school meetings, when held, . . 212 howcouTened; 213 tinstees appointed at, . 213 chairman and secretary selected at 213 to receive report of tras- tees, &c., 213 to appoint assessors, . 213 voters at, qualification, &c 21-4 when none held, inspec- tor may call, 215 Militia duty- superintendent and teachers exempt from 216 Normal school governor to appoint principal, .... 208 council to superintend 209 Penalties on trustees for refusal to act, 213 on voter for false declaration, 214 on trustees for false return 215 Be turns of commissioners, when and how made, 212 false, by trustees, penalty for 215 Schedule 216,17,18 School meetings (See Meetings,) 210-215 Secretary trustees to appoint 214 his duties, remuneration, &c 214 Sections how laid off, &c. 210 board may alter, 211 Superintendent how appointed, 209 salary and duties of, 209 exempt from militia, &c., 216 to select boolis for libraries 216 Superior schools annual grant to— how distributed, . . . 211 Teacher must holct license, -215 duties of, 215-16 exempt from militia, &c., 216 drunkenness of— how pxuiished, ... 211 payment of, 211 Trustees -. bow appointed, I _x. •% ■ • 213 penalty for refusing to act, . . .\ . • 213 PUBLIC TNSi'SnVC'SHO'N.— continued. Trustees report of, to annual meeting, 213 may assess for buildings, 214 to be body corporate, 214 may appoint secretary, 214 duties of, 214-15 of superior schools, &c 213 Visitors who are, ex officio 210 Voters definition of, 213 qualification of, ■ 214 declaration by, &c., . 214 PUBLIC LAisrDiB-as. (See Bridges and Public Landings.) .... 248 PUBLIC MAEKETS. (See Markets, Public j 381 PUBLIC MOKALS, OPPEITCES AOAIBTST— fine and punislmient for, • 660 incest, punishment for, 600 keeping a gambling, bawdy or dis- orderly house, punishment for, . 660 who may be deemed keeper of such houses, 660 keeper may be summarily tried in city -ofHaUfax 660 justice of the peace, mayor or alderman may enter any house, day or night, 660 profane swearing, fine for, 660 penalties for lotteries and raffles, . . . 660 PUBLIC PEACE, OPFEBTCES AGAIBTST THB- twelve or more persons remaining riot- ously assembled after proclamation- punishment for, 662 form of proclamation, 662 punislunent for opiJOsing i^arty making X)roclamation, 662 punishment for remauiing together after proclamation- obstructed 662 three or more assembled together with in- tent to execute a common purpose with force and violence, &c., pxmishmentfor, 6C2 persons unlawfully assembled and da- maging or destroying churches, &c., punishment for, 602 punishment for fighting in public place, &c. 663 punisliment when two or more carry dan- gerous weapons, 663 penalty for discharging firearms in streets or highways, &o. 663 PUBLIC PBOPEKTY. (See Property, Trustees of Public.) .... 380 PUBLIC KECOKDS. vested in her majesty, 93 parties taking or retaining same may be punished summarily, 93 mode of proceeding 93 order absolute or nisi for delivery of, in discretion of judge, B3 appeal from order of judge, 93 PUBLIC WORSHIP. I ((Sec Seligion, (fences against,) 089 GENERAL INDEX. 847 PITBIiIC WOBKS, SUBSCKIPTIOWS TO- subscriptions to puWio -works held legally binding and may he enforced, notwitli- standing apparent Tvant of considera- tion, 224 PUBLIC AWOBKS, &,e.— continued. mode in wUch aulDscriptiona may bo en- forced after notice, 225 not to extend to estates of subscribers imless named in instrument, 225 monies recovered, application of, 325 Q. QITAKEBS AWD MORAVIANS. how sworn, 4, 693 QUAEANTIWE. governor in council may malie order and affix penalties for breach of, 198 publication in royal gazette to be suf- ficient evidence of orders, 198 QUARANTINE— continued. disobedience of orders a misdemeanor, . . 108 QTTBEN, OK HBB MAJESTY. how construed in acts, 2 QUESTIOWS BAISED "WITHOUT PLEADHiTG. (See Supreme Cmi/rt, Pleadings in, (^c.,J . . 525 R. BABID ABTIMAIiS. sessions to mate orders for preventing danger from, 201 at large, may be killed, 201 if suspected, may be confined, 201 BAHiEOADS, PBOVnsrCIAIi GOVBBM"- ICBM'T— preamble, 250 railways under chapter to be public works, 250 governor in council to determine grades and places, 250 trunk line to be first completed, 250 other lines to be in direction approved by legislature, 250 the construction and management to be under charge of commissioners, ... 251 durationof offllce of commissioners, . ... 251 not more than one commissioner in either branch of legislature, 251 line to be built by tender and contract, . . 251 when tender high, need not be accepted, . 251 security for jjerformance of contract, . . . 251 chief engineer, appointment and duties of, 251 no money paid contractor except on engi- neer's certificate, 251 members of legislature not to hold office under commissioner, or be contractor, or party to contract, for buUding or management, 252 no government officer or member of legis- lature to be security for contract, ... 252 lands required for lines and termini, how obtained 252 commissioners may deposit soil on private lands, &c., 252 commissioners before entM:ing must give notice, &c .252 commissioners may construct roads, brid- ges, &c., over private lands, ..... 252 may alter coiu-se of river, &c 252 may make drains, &c., for conveying water from railway, 253 RAlliRO ADS— continued. value of materials to be ascertained by ar- bitration—award, how made, 253 damages, how paid, 253 appeal, 253 damages, how recovered, 253 damages chargeable on county, 253 party may consider award as against the county 253 when award filed with county treasurer, &c., amount to be a county charge, . . 254 person other than contractors, &c., before entry must furnish owner with autho- rity, 254 who may be held liable, 25i commissioners or contractors not to cut down fruit or ornamental trees, .... 254 monies payable for lands and fencing to foim coimty charge— how assessed, . 254 governor in coimcil to make arrangements for working railways, to be submitted to legislature, 254 governor in council may inspect contracts, &c., and suspend progress until next session 254 governor in coiuicU to fix salaries, subject to revision of legislature, 254 commissioners to draw money from re- ceiver general, 251 commissioners to furnish quarterly ac- coimts, to be examined bj financial secre- tary.and audited by committee of public accounts 254 commissioners to make regulations for con- struction and management of railways, 255 proviso, » 255 governor may exempt persons workiag on raUways from militia duty, 265 loan may be contracted, 255 issue of debentures at six per cent autho- rized, 255 848 GENERAL INDEX. BAUiBO AD S .—continued. fonn, moflo of issue, and amount of, &a., regulated 255 proceeds of lines, application of, &o., ... 255 credit of revenue of province pledged for redemption of debentures and interest, subject to pre-existing liabilities, ... 256 monies raised to be paid to receiver general ; paid out on warrant— management of fund 250 quarterly accounts of receiver general to be audited and laid before legislature, 256 city of Halifax to be stockholder to the ex- tent of $400,000 256 interest therefor to be assessed annually, . 257 if less than $800,000 borrowed in any one year, deficiency to be added to next year— not to exceed $800,000 per an- num, . . ■ . > 257 debentures payable in currency or sterling, as governor in council may direct, . . 257 provisions of chapter, except as modified by two last sections, to extend to such debentures, 257 debentures valid without governor's seal, 257 mode of drawing jury' for assessing rail- way damages 257 mode of striking jury therefor, 257 provision where same person is prothono- tary and clerk of the peace, as respects striking of jury, 257 railway commissioners to furnish prothono- tary before striking with lists of claim- ants, damages, plans, &c., — further regulations as to striking jury 258 venire for jury— how issued, &c., 258 first seven jurors answering, to be sworn, 258 sheriff and jury to proceed if numbers not reduced below five, by death, &c.,— duties of jurors in case of disagree- ment, majority to return appraisement of damages — yenii-e, appraisement and return to be filed by sheriff with clerk of peace— what proceedings necessary if juiy reduced below five, 258-9 sheriff and jury to have access to papers, plans, &c., in public offices— commis- sioners, &c., to give evidence under oath when required, 259 fees of prothonotary, clerk of the peace, sheriff and jurors, for their services, . 259 penalty on jurors for making default, ... 259 appeal to supren\e court, proceedings in, . 260 jury to be the orduiary petit jury, and trials to take place as ordinary trials, .... 260 damages to be assessed, collected as soon as possible, 260 amount appraised payable by two annual instalments with interest for delay, . . 260 after notice custos to give certificate, the same to be negotiable, and a county ohafge, 260 damages how apportioned and collected- proviso as to tenants, 261 in case sessions neglect or delay to appor- tion damages, supreme court may amerce as before provided 261 amercement, how collected, officers of KAILEO AD S .—continued. sessions must carry out provisions of chapter, 261 compensation to officers of sessions to be a county charge, 262 sum assessed to be paid to receiver general, who shall pay to parties, 262 if amount insufficient, sessions shall assess or supreme court amerce for deficiency, 262 sessions of Halifax may assess compensa- tion for appraiser appointed under seventeenth section, chapter 1, acts of 1854, 202 parties entitled to benefit of chapter 262 proceedings under chapter shall not be set aside on formal grounds, &o., 263 costs of fencing to be levied on respective coimties at the rate of $200 per mile, to be assessed or amerced, &c., 263 treasurers and collectors to give bonds, . 263 penalty for obstructing workmen on, ... 263 obstruction to engine, &c.. and malicious injuries to rail declared felony, .... 263 penalty for impeding officers or trespassing on railway, &c., and injury to fences, . 263 penalty for leaving gate open, 264 penalty for going or driving animals on railway— proviso, 264 penalty on owners for animals going at lai'ge on railway—proviso, 264 penalty for refusing to pay fare, riotous conduct, &c 264 servants of railway and other officers may apprehend offenders, 264 penalty for not marking gunpowder and dangerous goods sent by raUiyay, . . . 265 mode of procediu-e against parties trespass- ing on railway property— penalty for, . 265 mode of procedure against parties for stealing or maliciously injuring pro- perty, ... 265 all proceedings under chapter to be in the name of the Queen, 2&5 commissioner to levy tolls, &c 265 tolls how and by whom paid, 266 penalty for refusing to pay tolls, 266 penalty for giving incorrect accoimt of goods, 266 penalty for damaging carriages, &c. ... 2(56 rules for booking passengers, ........ 266 commissioners not responsible for goods damaged unless^ specially bargained, . 267 penalty for overloading carriages, &c., . . 267 persons convicted under preceding sec- tions, having no property, may be im- prisoned, 267 chapter 40, acts of 1861, to remain in force, 267 schedules 267-8 Act passed 18th April, 1864. governor in council authorized to contract for extension of line to Piotou, .... 268 provisions of"revised statutes, third series, made applicable 268 savings bank deposits may be appropriated and debentures issued, 268 chapter 22, acts 1863, repealed 269 commissioner may seize liquors exposed for sale on, 68 GENEEAL INt)l!X. 849 HAUiKOADS OTHER THAJST PKO- VmCIAli a-OVEKMEWT. bells or wlustle to lie kept on ensines, when to be rung or sounded 269 painted boards at orossinga, • 269 sessions may order gates and keepers at crossings 269 fine for violating preceding section, . . . 270 fine for maliciously obstructing engines, . 270 fine forgoing on or riding animals on, . . . 270 line for cattle trespassing on, 270 imprisonment when no goods to satisfy fine, 270 sessions may appoint and nominate con- stables for, 270 constable to be at expense of proprietor, . 270 definition of terms, 270 KAPE. punishment for, 665 KATES. (See County Assessments.) 171 REAL ESTATE. word how construed in acts, 3 (See Deeds of-Ma/rried Women,) 396 (See Descent of Seal Estate, ^c.,) 747 ( See Lands,'_ScUe\of, under Exeution,) . . . iOi (See Lands, Sale of, under Foreclosure,) . . 403 ( See mils of Meal Estate, ^-0.,) 397 RECEIVER GENERAL. to give bonds and hold ofSoe during plea- sure, 157 clerk of, his duty— to give bonds 158 receiver general and financial secretary to be members of administration 168 to receive and pay all public monies, . . . 158 governor iBi council may direct mode of keeping books, &o., 158 general cash book to be open to inspection of members of government and legis- lature, 158 shall manage ti-easury notes, funded debt, and savings bank 158 warrants— how drawn and paid 15S-9 to furnish quarterly accounts to financial secretary, 159 to form same into one account, to be sub- mitted to assembly, 159 his salary— C5e« Salaries,) 155 to pay all warrants in gold, silver, or trea- sury notes 160 to superintend savings bank, 160 to keep accounts of monies received on account of Indian lands, 207 REOIPROCITY. treaty with United States 24 RECORDS, PUBLIC- (See PuUio Secords,) 93 REGISTRAR OF SHIPPIIirG. (See Ships, Registry of,) 292 REGISTRATIOH" OP VOTERS. (See Elections, ^e.,) 755 REGISTRY OP DEEDS. (See Deeds, Megistry of,) 742 REGISTRY OP BLARRIAGES, BIRTHS AlfD DEATHS. (See Marriages, #c., Begistration of,) ,' . . 414 107 REGISTRY OP SHIPS. appointment of registrar, 293 surveyors, . , 292 collectors of colenial duties may endorse change of master 292 new certificate of registry, how granted, . 293 part of merchant shipping act of 1854 re- pealed 292 Salaries, " 292 sxu'veyors fees, 292 REGITLATIOITS. (See Bye-Laws,) t KELIGIOlSr, OPPBKTCES AGAIITST- any person disturbing any congregation assembled for public worship, liable to a penalty 659 fine for desecration of Lord's day, .... 659 disturbing religious meetings by discharg- ing fire arms, &c.,— penalty, 650 loosing or injuring horses, &c., in vicinity of place where religious meetings, &c., are held, or about to be held 659 mode of arrest of persons offending against sections three and four, and how to be disposed of, 659 RELIGIOUS COITGREGATIOM-S, &o. Agreement trustees may enter into with minister, 195 to be entered in books 195 Building sale of, used for pubho wor^p, ... 194 where trustees have not power to sell, bow disposed of, 195 Bye laws to be made>t meetings, • 193 may make at special meetings 196 Church of England not affected by chapter, 197 Olergjrmen by whom engaged ^195 agreement with, to be recorded, . . . 195 Congregations how constituted by deed 192 amoiuit of real and personal estate to be held by, 193 incorporated previously may use tliis act .194 vote of majority of, may sell real estate, 194 Constitution society may alter, 195 meeting may adopt, . . • 190 how altered, 196 Deed of incoqaoration, how made, 192 to be registered 193 England, Church of chapter not to apply to, 197 Episcopal corporation may sell real estate, &c., . 196 Meetings how held— powers and i)rooeedings. . 193 two thirds of congregation present at, may sell real estate, 194 proceedings at, for sale of building, , 194 constitution, how altered at, 195 constituting society not incorporated, 195' constitution altered at 196. proceedings at for sale of church, . . 19& 850 GBNEEAL INDBX. KELIGIOUS COWGKEGATIOITS-coni'd. Beal estate amount of, held by trustees 193 to be vested in trustees, 193 held before deed, how conveyed to new trustees, 194 how sold or disposed of, 194 sale of land when not authorized, ... 195 vested in trustees, 196 Kegistry of deed, of incorporation, 193 Society may alter constitution, 196 mode of constituting 195 Sale of real estate, &c., how affected 194 of church, how affected 196 by episcopal incorporation,') 196 Trustees how appointed, 192 lands vested in 193 to sue and be sued, 193 amount of estate held by 193 new— real estate how conveyed to, . . 194 when may sell, mortgage, real estate, 194 where, have no legal power to sell, pro- ceedings 195 estate vested in 196 EEMAINDBKS. (See Estates Tail J 397 KEBTT, DISTKESS EOK-AIfD KB- MEDY. Appraisement goods dlstramed when appraised, ... 613 Cattle corn and fruits taken as distress, ... 614 Distress if rent not paid within Ave days afto)>- goods sold, 613 remedy in case of— Avhere no rent due, 613 goods removed to avoid, how seized, . 614 after determination of lease in certain cases 614 cattle, com, fruits, may be taken as, . 614 of cattle, com, &c., how kept, 614 Execution goods not liable to be removed under, until rent paid, 613 Goods distrained to be appraised, 613 how sold, &c ■ ... 613 fraudulently removed, how seized, . . 614 notice of place of deposit of, 615 Grain may be disti-amed, 613 KTotioe of distraint, how served, &c., 613 of place of deposit of goods 615 J'ound breach remedy in case of, 613 KEPIAEVIET. (See Supreme Court, Pleadings, cf c, in,J . . 642 KEESESEJSTTATIVES. to mean executors and administrators, 3 EEPBESEH-TATSIVES IN GEUEBAL ASSEMBLY. Biiraber of coiuity, division and township, . 6-8 BBSIGNATION OP MEMBEBS Off LEGISLATUEE. (See Vacating Seats,) 10 EEVEITOE, BOABD OE- constitution of, 29 duties and powers of, 29 may annul appointment of warehouses, . 47 establish and annul other warehouses, 47 order destruction of forfeited liquors, 40 regulate carrying goods coastwise, . . 41 regulate carrying warehoused goods coastwise, 50 regulate entry of vessels at Great Bras D'or, 46 regulate exportation of liquors for drawbacks, 54 regiUate return of duties on goods for army and navy 53 regulate samples from warehouse, . . 48 relieve vessels, &c., liable to forfeiture, 33 rehevefrom penalties— when, .... 33 remit duties on warehoused goods, in certain cases, 49 remit forfeitures on dutiable goods not reported, 38 require reports, &c., in detail, .... 38 restore goods seized, 33 power to remit penalties — when 33 power to make regulations respecting ex- cise duties, 27 quarterly reports of exportation bonds to be made to, 65 to have management of drawbacks, .... 49 BEVBHTJE, CASUAL AOTJ TEBBI- TOBIAL— collection and recovery of, 18 crown lands, proceeds of— how and where payable 18 duration of chapter, IS management of, 17 mines and minerals transfeiTed to province as, 17 of what, consists, 17 EEVEiroS!, CUSTOMS AND EXCISE— (See Customs Duties,) 18 (See Excise Duties,) 26 BEVBHXTB, OPFICBES OF— duties and powers of, in relation to excise, 27 goods, &o., liable to forfeiture, may be seized by, 33 may be stationed on board ship 34 may board vessels, and remain, 40 penalty for assaulting, 663 penalty for obstmcting, 33 powers of, on ship board 40 principal oflicer at Halifax to fumish quar- terly accounts to financial secretary, . 159 principal officer at Halifax to make out one general account, to be presented to as- sembly 159 BIOTS. punishment for opposing reading of procla- mation 662 riotous assembling, how dispersed 662 how punished, . . . . 6&2 GENERAL INDEX. 851 BIVEH.3, OOM-VEYING TIMBER AKD LUMBER our, AJsTD REMOVAL OP OBSTRUCTIOM'S PROM— eonuuissioners for removing obstructions, &o., 389 commissioners, appointment of, 390 jm-isdiction of, 390 powers of, 3^6 to render accounts annual- ly 390 of riTerflslieries,'powersof, 390 doflnition of word " river," 391 logs, timber, and lumber, may be brought do^vu under regulations, 391 operation of chapter restricted, 390 eossions to establish tolls on, 390 may regulate rafting, placing of booms, c&c, 391 may regulate refuse from mills, . 390 tolls may be established by sessions, their application, 390 ROADS, CLOSING OF— old roads may be closed by session on peti- tion — proceedings proscribed, . • . . . 248 appeal from order to supreme coiu't, . . . 343 order to be conclusive 248 persons not interested in lands and their witnesses may be heard and may ap- peal, .218 when owner of adjoining lands dead, who to be considered proprietor, 248 ROADS, EXPENDITURE ON— Aooounts how made out, &c 239 oath to, where monies expended by day's work, 239 of contracts how made, sworn to, &c., 240 Bonds where sums over eighty dollars, . 239 Breakwaters wages of men employed on,. . , . 212 Cominissioiiers how appointed, 238 bonds of, where sums over eigkty dol- lars, 239 amounts how dra'wn 239 form of oath of, 239 to advertize work 339 need not require formal contract for small sums, • 210 return of, where money expended by by contract, 340 oath of, 240 not to draw money when justices cer- tify 241 when may enter into lands, &c 241 number of laborers under one 241 may employ foreman, when, &c., . . . 241 percentage and pay of, 241 proceedings by in cases of encroach- ment, 242 Contracts monies to be expended by, 239 when entered into and when fulfilled, . 339 form of, 240 in cases under eighty dollars, S40 form oti , . ■ ■ ROADS, EXPENDITURE ON-coiitinuod. Enoroachments proceedings in cases of. 242 Poreman may be appointed, 211 •Tustices two may certify, &c., 241 Labourers number of, under one commissioner, . 241 wages per day, 241 when employed on breakVater, 243 Materials how provided when owner of soil absent 241 Oaths of commissioner to account by days work, 239 of commissioner to aoeoimt by contract 240 Time when work to be completed, 243 ROADS, GREAT, LAYING OUT AND MANAGEMENT OP CERTAIN- Agreement commissioner may make— for crossing private lands 219 mode of procedure where none can be made, ■ 219 immediately after, commissioners to proceed 220 Appraisers of damages, how appointed, sworn, &c., 219 Commissioner may make agreement to cross private lands 219 how to proceed where no agreeement, 219 may make road immediately, 220 Contract money to be expended by — when, ... 221 Damages agreement may be made for, 219 how drawn in such case, 219 how ascertained when no agreement, . 219 not drawn for other roads than specified, 220 Days work money to be expended by— when, . 221 Fences to be made before compensation, oath, &c 230 Governor in council to have charge of certain roads, 230 may appoint supervisors, . 221 may issue orders to super- visors, 221 Monies how expended by supervisors 231 apportionment of, by legislature not af- fected 221 mode of expenditure of 221 OatlL of appraisers, damages, 219 before damages for fencing paid, . . . 220 Penalties for obstructing officers, 219 Roads to which chapter applies 218 which governor in coimcilmay manage, 220 Supervisors how appointed, their duties, &c., . . . 22x 852 GENEKAL INDEX. ROADS, GEEAT, TjAXXNG OUT AND MANAO-EMEN'T O'F—QOnt'd. Supervisors guided ty laws of province— exception, 221 to furnisli report 2'21 governor may dii-ect by orders,. ... 221 I'Omuneratiou of, 221 to testify where labour by days work, . 22*1 Width and site of ' . width to be sixty-six. feet 230 site when considered surrendered, . . 230 ROADS, OTHER THAN (JRBAT, LAY- BSTGOUT OF- Agreemeut committee may make, for damages, . 232 when none can be madfe appraisers ap- pointed, ., 232 Appraisers how appointed, sworn', &c., 222 how f appointed where more than one proprietor 222 to aijportion old roads, 223 Clerk of peace to post -notices 333 Committee how appointed, their duties, &c 322 to report to sessions, 332 to make agreement with proprietor and annex plan 232 to appoint appraisers, 223 may lay out roads less than sixty feet, 223 justice ineligible for 224 Damages stated in agreement, 232 .appraisers to settle, 232 a county charge, 233 of open and pent roads— county charge, 224 Fences damages for, liow drawn, ..... 223-t Gates ' may be placed on private w.iys. . . 331 mew roads .. width of, 223 notices to be posted by clerk of peace, „ ... 223 OJd Roads ' how apportioned to proprietors,!. . . 233 to become property of person to Vhom allotted, 223 Penalty for breach of regulations of sessions. . 224 Public landings making of, 224 land Laid off for. how much, 224 ROADS OTHER THAU GREAT, LAY- ING OUT OF— continued. Returns of committee, 222 Roads what, chapter applicable to, 222 sites of, when held surrendered, ... 223 open and pent, how laid out, 224 Sessions to appoint committee, 222 to couflrm or disallow proceedings, . . 223 may order gates on private ways, ... 221 ROADS OVER ICE. CSee Ice, lioads OoerJ 3!t4 ROADS, PRBSERVATIOIir OE- flne for altering of, or encroachment on, . . 212 justice on his own view or proof may fine for encumbering— fine how levied, . . 242 encumbrance continued— new offence, . . 243 side paths preserved by order of sessions, except in Halifax— penalties for breach, 242 fine for desti'oying trees between waters and liighways, '. 243 roads, near sea, &c., — banks not to be in- jured—penalty, 243 encumbrance foimd in ditches forfeited, . 243 penalty for disorderly driving to be recover- ed as in sixteenth section, . ..... 243 penalty for trotting or galloping over bridges more than 25 feet long, 243 carriages on runners to bedriven with beUs, 243 runners of sleighs to be four feet wide, . . 243 width of loads of hay 243 unloaded sleds not to have pointed stakes, 243 centre of highway to be leffon the right by persons driving, 213 persons attempting to pass another carriage in same direction shall leave suflicient space on then: left 243 carriage standing on highway not to be within eighteen inches of centre, and on proper side 344 fines for violation of last eight sections — ■prosecution therefor within 48 hours, . 244 forfeitures not specifically appropriated, to be applied to repairs of roads, &c., . . 244 encroachments on, how dealt with, .... 245 ROBBERY. punishment for, 074 RULES Airo REGULATIONS. (See Bye-Laws, J 4 s. SABBATH. \ desecration oi, how punished \ . . 059 tr.ansmission of maUs on, ......... 73 (And see Sunday,J ' SABLE ISLAKTD, ST. PAUL'S, AWD SCATTERIE. board of works may make regulations for government of, 01 goods wi'^cked on liable to duty U2 SABLE ISLAND, Ho.— continued. establishments to receive salvage, . • . . 02 expenses of St. Paul's and Scatterie islands, how provided for, 92 members of board of works may act as justices on, 92 persons and property found on Sable and St. Paul's Islands, how disposed of, . . 91 iS.aljle Island ii; county of Halifax, .... 93 GENERAL INDEX. 853 SABIiE ISIiAHT), &o.—oojUmued. St. Paul's Island in coimty of Victoria, . . 92 St. Paul's and Scatterie Islands, expenses of, 92 vessels and goods found on Sable and St. Paul's Islands, how disposed of, . . . 92 SAIiAHIES. of chaii-man of board of vvorlis, 85 chief commissioner, deputy, and inspec- tor of mines, 94 clerk of board of works 80 clerk of works 87 collector [of colonial duties, Halifax, . 31 county treasurer, 167 equity jiidge, 144 immigrant agent, 150 jailers, how regulated 184 medical snx)erintendent of liinatic asy- lum '. 035 principal of normal school 208 provincial superintendent of education, 209 railway commissioner and chief engi- neer 2;j4 superintendent of lighthouses, 86 SALAKIES AUD PEBTSIOBTS OF OEK- TATM PUBLIC OFPIGEKS. Salaeies, of governor, chief justice, hon. W.E. Bliss, assistant justices, provincial secretary, attorney general, solicitor general, re- ceiver general, financial secretaiy, com- missioner of crown lands. . ( 155 of JamesW. Nxitting 164 first clerk to commissioner of crown lands, 155 additional clerks crown land office, . . 156 first clerk to receiver general, 156 first clerk to financial secretary, .... 156 first, second, third, and foiu-th clerks, and mesri'enger, post office, Halifax, . 156 certain officers limited to 18 months after demise of her majesty, 156 certain portions of, made chargeable upon general revenues, 156 judges or proviucial secretary not to take fees, 156 judges, travelling expenses 156 Pensions. John G. Marshall, 156 Waiiam Q. Sawers. . '. 156 Henry W. Crawley, -156 John Spry Morris 156 Hon. Alexander Stewart, 156 when pensions to cease, 156 SAIiMOBT. (See Inspection of Provisions, ^c.,J .... 324 SAIiMOIir PISHEKIES. (See FisTieries, River,) 371 SAI.T. (See Inspection of Provisions, 4'0.,) .... 335 SALVAGE. (See Goods, Importation of,) • 45 (See Wrecks and Wrecked Goods,) 300 SAHATOBY KEGUIiATIOWS. (See ffeaUh, Boards of,) IBS SAVINGS BAKTK. cashier to prepare full abstract of accounts, to be certified aud submitted to legisla- ture leo depositors to receive interest at four per cent 160 deposits limited 160 governor in council to apply monies de- posited as api>roved by assembly, ... 160 receiver general to siiperintend 160 SCHOOLS. (See Public Instmotion.) 208 SCHOOL LABTDS. exempt fi-om sale for non-payment of rates, 273 trustees ol— how appointed, 381 vacancies of trustees of— how filled 381 SCIBE FACIAS. (See Supreme Court, Pleadings, i.^c., in,) . . 535 SCKTJTIBriES— (Appendix.) appointment of time and place for, .... 731 candidate entitled to copy of minutes, . . 732 clerk, duty of, 731 fees of, by whom paid 732 not attending 732 oath of, 731 continuation of, 731 costs on abandonment of, 732 deputy sheriff when to hold, . 732 evidence on, how received or registered, . 731 protests concerning, . ... 732 to be returned to house of as- sembly 732 oath of sheriff's assistant, 731 clerk, . ■ 731 oath by whom admhiistered, 731 proceedings to be returned to house of assembly • . 733 sheriDf— duty of, 731 fees of, 732 oath of, 731 penalty for misconduct, 733 sheriff's assistants, how appelated 731 not attending, .... 732 oath of, 731 who may act as, . . . 731 sheriff's I'eturu of proceedings to assembly, 732 tune and place for holding, appointment of, 731 votes marked objected may be scrutinized, 731 SEA MAMTJKE, GATHEBHiTG OF— sessions may make regulations respecting, 394 private rights not to be affected, 394 SEAMEW. (See Shipping and Seamen,) 282 (See Wills of Personal Estate, tj-c.,; .... 308 SEATS IN ASSEMBLY, VACATIlSrG- how vacated, 16 officers which vacate seats, 16 speaker's seat, how vacated, 10 vacancies, how supplied, . • IS SECOETD COBVICTIOir OP FELONY. punishment upon 679 SECUBITY. meaning of word, 3 SEWTBIfCB OP DEATH. when commuted— proceedings 697 854 GENERAL INBBX. SEBVABrTS. (.See Masters, Apprentices, and Servants,; . 4M SESSIONS, QEETEBAL- and grand jnry to assess for safe keeping of books of registry, 743 cases may be prepared for supreme court, IGS sent back to, for amendment, &c 1B3-6 duration of sittings and adjournments, . . 165 of St. Mary's and Antigonisli, may appro- priate sums necessary under chapter 79, section 33 308 indictments may be found and tried at sessions for county of Halifax, .... 10.5 may amerce for certain pui-poses, on neglect of grand jury 108 for extra cliargea on inquest if gi'and jniy neglect, . . . . I(i2 for safe keeping of registry boots, when ,743 appoint commissioners for bon-owing and expending money, 168 appoint engine men 384 harbor masters, 307 assess for fire engines 384 declare wliat rivers exempt from pro- visions of chapter 05 " of river fish- eries," 374 establish new markets, &o., 381 tolls on rivers, 390 order guide boards to be erected, . . 395 preservation of moose, &c., . . 3G5 gates and keepers on railway crossings, 269 regulation of jails, &c., .... 183 provide new fire engines, &c., .... 387 regulate anchorage, bxioys, &c., ... 308 coasting on highways, ... 394 burning of woods and marsh- es 389 fii-es, &c., 380 gathering of sea manure, . . 394 infected cattle, &o., 393 lock-up houses, &c., .... 167 rafting, &c., on rivers, ... 391 refuse from mills, 390 roads over ice 394 taking of oysters 360 settingof nets, &c., 372 taxation of dogs, 395 time of holding, in coimty of Halifax, ... 164 other counties 164-5 to appoint fire constables 383 inspectors of river fisheries, . 374 present for pauper lunatics, 635 provideflreimplements, &c., 383 regulate fisheries on rivers running through private lands, 371 two-thirds of grand jury present at, may make presentments, B88 where two terms held, the gi-and jury to at- tend the fall or winter terra 105 SESSIONS, SPEOIAL- how called, and what busmess transacted at 186 number of justices neeessary to compose, 166 records of doings, to be made and filed, . 16G SEWERS-DIKE AND M.a:aSH LANDS. AsEessments to be made, for what purposes, .... 373 when agreed to shall be valid, 373 how recovered, 273 Certiorari for removing proceedings to supremo court 278 Caerk to keep record, 374 fined for neglect of duty, 378 commissioner shall not be, 275 oompetencyof as witness, 375 Conunissioners already appomted to continue, .... 371 how appointed and sworn 271 how chosen — dismissed, &c., 371 power of to cany on work 371 ma3>- be appointed from among over- I seers 3re to give notice to proprietors 373 may assess owners of lands, ..... 373 action by, for work, when sustained, . 374 powers of, 374 shall not be clerk, 375 duty of, on application for drainage, 270 how far liable for predecessors acts, . 27a Dikes commissioners of Wickwire, &c., may assess, &c., 372 outer dikes how repaired, 275 when they cease to protect 276 injured by pasturage, &c., 276 roads through, 277 flowing lands, 277 expenses of repairing, how borne, . . . 377 Drainage of meadow and swamp lands, 273 ■ applications for— how made 276 Pines how recovered 373 for clerks, &c.. neglecting duty, .... 278 Lands meadow, &c., assessed for drainage, . . 273 may he leased for rates, &c 273 may be sold, ^hen, &c, 273 land liable, when, &c., 373 diked, making roads through 277 diked— flowing 277 damages to lands of non-applicants, how paid, &c., 378 Notices may be verbal imless specifled 279 Overseers how appointed and sworn, 373 Ovsmers lands liable where have not agi'eed, . . 373 required to furnish labour, fine for neg- lect, 274 of marsh or meadow land applying for drainage— proceedings 270 dissatisfied with rates, may have asses- sors, &c., 378 proceedings where they do not appoint assessors 378 cases of two, but neither owning two- thirds, 278 two-thirda may choose oollectore, ... 279 GENERAL INDEX. 855 SEWEHS, &o.—oonUnti0d. ■ I Plans how obtained, &c., 273 Bates exceeding $1.50 per acre, how assessed, 272 how recovered 273 lands maybe leased for payment of, . . 273 deficiency in, how collected 274 Salt marsh when taxed, • .... 275 Witnesses competency of oificers as, 275 SHEEIPFS— (Appendix.) mode of selecting and pricking 733 commission of, may issue in certain cases before bond given, 733 fine for refusing to accept office, ' 733 re-eligible unless objected to by sessions, . 733 dying, deputy 'shall act imtil another ap- • pointed— if there be no deputy governor in council to appoint 733 bonds of, how given and registered— bonds lost, certified copies evidence, . ... 733 bonds of, how to be approved— when bond of disallowed, and not giving satisfac- tory bond after reasonable notice, may be removed by governor in council — sheriff for preceding year to continue to act, 734 old securities liable until new approved- securities of, may be relieved by gover- nor, and in one month new securities to be given, or sheriff removed 734 oath of, • 734 neglecting to return to provincial secretary account on oath of forfeitures and crown debts, fines, &c ." 734 suits on bond of, how brought, costs, &c., 734 in suits against, for escapes, how damages regulated, 734 to return and fendorse aU writs vrith items of fees, iSfec 734 limitation of actions against 735 fees of, C44, 645, 652 SHUTGLES CSee Inspection of Lumber, ^c.J ...... 337 BHrPPrBTG MUD SEAMEET. Articles shipping, in what cases necessary— attestation— form, &c., 283 fine for shipping men without 284 not to deprive of lien on vesselfor wages, 284 When seaman has signed and refused to join ship-^proceedings, ...... 284 execution of by surety, ........ 284 Board appointment of local-rules, &o., . . . 282 central, appointment of, &c 282 local to examine central"— to give certi- ficates, . ....... 282 Certificates of competency how granted, ..... 282 privileges of holders of, 283 masters and mates going foreig-n must have, 283 to be recorded,! 283 penalty for altering 283 fee for— proviso, . . 2S3 SHIPPIBia AJSTD SEAMElSr-cojiMimed. Certificates when may be cancelled, &c;, 2S3 Coasting vessels not affected by this chapter 289 Costs when disallowed in vice admiralty, . 2S8 Crews discharged abroad only on certificate, . 288 not to be discharged abroad except for good cause certified, 283 Desertion forfeiture in case of, 285 entermg naval service not held, ... 288 Examination to be instituted for masters and mates, 282 by local boards 282 Exemptions as to necessity of certificates, .... 283 Fees of applicants for certificates, 283 of officer in claims for destitute seamen, 287 Fines for shipping seamen v/ithout articles, . 4Sl Forfeitures by seamen for absence and other offences, 285 mode for compensation of, where agree- ment by voyage 286 in case of desertion, 285 for harboring or secrethig seamen, . . 286 Jury allowed— when, &c. . 2S7 ■Tustices may compel attendance of witnesses, . 283 wages under eighty dollars recover* ed before two, ......... 287 stipendiary magistrate to have jurisdic- tion of two, 2S7 may punish seamen refusing to join, . 234 may order imprisoned seamen onboard, 2S6 Xiimitation of actions for penalties, ........ 289 Masters and mates — examination of, 282 certificates to, ............. 283 fine upon, for illegally shipping seamen, 284 leaving crews abroad— proceedings, . 288 Medicine to bo kept on board 288 Payment to seamen valid notwithstanding assign- ment ..11. 287 Penalties power of coiu't to reduce, . . . i . . i 280 Begistrar to examine claims for destitute seamen, 289 fees for, 289 Schedules form of shipping articles, 290, 91 Seamen fines for illegally shipping, . . i . . i 284 articles not to lessen lien for wages, . 234 proceedings where, refuses to join ship, 284 where, does not proceed, surety liable for allowance, 281 forfeitures on, for absence, &c., .... 285 forfeiture on, for desertion 285 85^ GENERAL INDEX. SHIPPIBTG AWD SEATHLE-N-contimed. Seamen imprisoned, liow taken on board, ... 283 liartoring or secreting, how punished, 286 wages of, how recoyeraWe, 286 payment to, valid notwithstanding as- ' signment, 287 entitled to certificate of discharge, . . 287 about to go on Toyage, may sue for wages, 287 _^,. wages of, under $80, how collected, . . 287 j'ij' ' right towages and effects when enter- ing naval service, 288 destitute, how provided for, 289 Stipendiary Magistrate at Halifax or Pictou to have jurisdic- tion of two justices, 287 Wages seaman, lienfor,not lessened by articles, 284 how recovered, 286 payment of, to seaman,when not Invalid, 287 proceedings for— where seaman about to leave 287 how collected under $80, 287 SHIPS, BEOisTKT OP- appointment of registrars, 292 surveyors, ........ 292 collectors of colonial duties to have power' to endorse change of masters, 292 new certificates of registry, how granted, . 292 part of merchant shipping act of 1854, re- pealed 292 salaries of registrars and surveyors, . . . 292 surveyors fees, . 292 SILVEB COIIT. what ciUTtot, &c 330 SLAUGHTEE HOUSES. limits of, to be regulated by sessions, . . . 204 SLEIGHS. to be driven mth beUs, 243 width of runners, 243 iinloaded sleds not to have pointed stakes, &c 243 SMTTGGLTKrG, PKBVEWTION OP— Amends may be tendered by oflicer 57 Appeal from decision of justice, 07 Buildings officers may enter, when and how, . . 55 CoUeotors may enter shops and take account, . . 56 goods seized placed in custody of, . . 56 Costs regidation as to, 57 Goods collectors may take account of, . ... 56 custody of seized,; ; 56 condemnation of, 56 condemned, how disposed of, 57 Governor may suspend regulationsj 58 tTustices proceedings before for condemn.ation of goods, t . . . 56 Offlsers may board vessels) &oi, . i ..... . 55 SMITGGLIITG, PBEVEIiTTIOlir O^-cmtt'd. Ofloers , may enter buildings 55 may have writ of assistance, 56 penalty for obstructing, 66 Penalty for obstructing oificers 56 upon masters of vessels and others, . . 58 Proceeds how applied 57 Vessels oflicers of revenue may board, .... 55 upon masters of— and others 58 seized, how prosecuted, 58 delivery may be ordered, 68 SMXPE. (See Birds, ^-c, Preservation of J 304 SOIiDIEBS AND SEAMEBT. letters of, when privileged, 80 wills of personal estate of, 398^ SPEAKEB OP ASSEMBLY. (See Vacating Seats, J 16 SPECIAL SESSIONS. (See Sessions, Special,) lOfi SPIBITtrOUS LIQtrOBS. (See Intoxicating Liquors,) 61 STABBING. punishment for, 663, C6S STATISTICS. (See Census and Statistical Information,) . 154 STATUTES, PBOMULGATION AND CONSTETTCTION OF— acts may be altered oi repealed during same session 2 acts repealed, how revived, 2 acts to be done on Sunday, Chiistmas Day, or Good ITriday, when to be performed, 4 appeals allowed in aU cases before justices, 4 authority to make appointments, to include power to flU vacancies, 4 bonds of public officers how taken, .... 4 county charges how recovered, 4 construction of acts, rules for, 3 date of commencement of, 2 deemed public, and need not be pleaded specially, . 2 forms, slight deviations permitted in, . . 4 meaning of terms in, .... ^ . 2^3 oaths may be administered by justices, when no particular directions 4 officers appointed during pleasure 6 penalties how recovered and appropriated, 3 power to make hye-laws, to Include power, to alter, revoke, and make others, . . 4 proceedings under old acts continued under new, i i . . . . 2 publication how evidenced 2 quakersand moravians, how sworn, . . . 4 mles for construction of acts 2-3 terms, meaning of, in acts 2^3 STATUTE LABOB. (See Highway labor, J 225 (See Surveym-s of Highways, 4~c.,) .... 735 STAVES. (See Inspection of Lumber j ^-c,,) ...... 340 STEALING. punishment for, 674) 675 CJEJ^ERAL INDEX. 857 STEAM TfAVIGATIOW. number, nature, and description of boats to be carried by passenger steamers, . . 295 every steamer to liave fire buckets, lant- lioms, &c., , -.295 inspector to regulate pressure on boiler, regulations to be posted on steamer, . 296 penalty for greater pressm'O on boiler, . . 296 lighta to be carried by steamers 296 penalty for neglect 296 inspectors how appointed, tlieir duties, salary, Ac, 296 inspectors may board and inspect any stea- mer belonging to port 296 inspectors certificate, form of, 297 penalty for false certificate or neglect, . . 297 proceedings in case inspector cannot grant certificate, 297 penaltyfor taking passengers without certi- «- flcate, 298 penalty for sailing without certificate, . . . 298 fines, &c., how recovered ........ 298 STEAM MILLS. (See 2IiUs and Millers,) 323 STEAM VESSELS. (See Goods, Importation of,). 39 (See Steam Ifamgation,) 295 STEPEBTDIAKY OK POLICE MAGIS- TBATES. stipendiary magistrate at Halifax and Picto u to have same jurisdiction as is conferred on two justices of the lieace by chapter 75 " of shipping and seamen," 287 general sessions upon application, shall ap- point committee to enquire into expe- diency of creating police division, ... 476 proceedings to set ofl' same, 471 if report apin-oved and confirmed, place to become jjolice division, 477 meetings of justices in police division, . . 477 majority to appoint one or more stipendiary justices 177 their powers, duties, &c., 477 where only one police magistrate appointed, two justices shall sit with him on trials of larcenies, 477 punishment, fines, &c., 477 limitation of actions, . . . -. 478 conviction, &e., not to be quashed for want of form, 1"8 court may take recognizance for sessions or supreme court, 478 process, how signed 478 appointment of police constable, his power, &c 178 length of detention before trial, 478 all persons to assist constable imder pam of fme, 178 salaries to be fixed by sessions— how col- lected, 178 sessions may make regulations for preser- vation of peace, 178 jiurisdiotion of police magistrate in civil sviits, 1'" fees, «9 seventeenth section to apply to Pictou, . . 479 appeal, • ' 108 479 STOLEET GOODS. punishment for receiving, 67G STOKES, MAKIH"B— regulations for dealers in, 676 pimishment for secreting stolen 676 STKAY HOKSES AKTD CATTLE. (See Horses ami Cattle, Stray,) .'!92 STREETS, COMMISSIOBTEKS OP- limits witliin which jurisdiction shall bo confined, defined, 231 subsequent provisions to extend to city of Halifax, unless excepted, . 234 clerk and receiver to be appointed— districts subdivided and assessed 234 duties of commissioners defined, 334 accounts to be kept and rendered annually to clerk of the peace, except in city of Halifax, under penalty, 234 further duties of commissioners defined, 235 gutters and streets in front of premises to be kept clear, 235 penalty for neglect 233 commissioner may order removal of, . . . 235 materials for building may be placed on streets by le^ve, 235 wells may be dug and pumps provided when necessary, 235 nuisances and encroaclmients may be re- moved and altered 236 line of streets how protected in case of now buildings 236 luie settled by jury in case of dispute, . . 236 proceedings thereon — return, how con- firmed-expense how defrayed 236 soil of streets not to be broken up without written permission, 236 forfeiture for violation of section, 237 fine for riding or diiving on side-path,— or obstructing same, 237 Annapolis Eiver Bridge at Bridgetown to be under charge of commissioners at Bridgetown, 237 sessions may set off districts— appointment of commissioner— vacancies how sup- plied—penalty for refusal to act, ... 237 sessions may include bridges over rivers dividing districts, 237 provisions of chapter to apply to commis- sioners appointed under seventeenth section, • .... 237 sections fifteen and seventeen not to apply to the city of Halifax, 237 vacancies of commissioners under first section to be supplied under sixteenth section, , ; 238 commissioners to have power of sm-veyors of highways, 238 monies and forfeitures iiow recovered and applied, 238 notice of action against commissioners must be given— limitation of action, . 238 definition of terms used in chapter, .... 238 SUG-AE, TAKE OBT— ( See Inspection of ProviswnSi^-c.,) 334 SUMMAKY CAtTSBS. (See Supreme Court, Pleadings, (fc, in,) 516, 525, 553, 554 858 GENERAL INDEX. SUNDAY. acts to be done on days falling upon, when to be performed, i computation of time to be exclusive of, . . 649 coroner may hold inquisition on, 162 desecration of, how punished, 659 justice may issue certain warrants on, . . 709 selling intoxicating liquor on, penalty for, — exception 63 transmission of mails on, 72 SUPEBVISOES OF PUBLIC aBOUUDS. (See Public GrottntlSj Supervisors of,) . . . 244 SUBGEBY. (See Physic, cfc, Practice of,) 204 SUPBEME COUBT ABTD ITS OFFI- OEBS. powers of supreme court, 427 commencement and duration of tenn and sittings at Halifax, 427 judge at Hahfax on first day and last three days of sittings to have same jjowers as in term, • 427 attendance of grand and petit jurors, . . . 428 sittings in other counties, when held, . . 42S-9 duration of term or sittings in coimty, . . 429 Jurors for extended sittings, 429 pi-esiding judge m^y adjourn coiu't to future day, &c., , 429 prothonotary to cause adjournment to be published, 430 prothonotary to draw aud^suramon juiy for, 430 attendance of jurors at, 430 causes to be tried at, without new notice of trial, , 430 day of proclamation to be last day of term, 430 when judge does not arrive in time, sheriff may postpone court 430 prothonotary not to give or transmit to Ha-> llfax original papers without judge's order, ^ 430 prothonotary, &o., to give statement of fines at j)receding term, 431 criminal calendar and depositions to be sent to grand juiy, 431 indictments not to be made out xmtil grand juiy direct, 431 prothonotaries not to issue execution imtil fees be paid, 431 commissioners for taking affidavits — how appointed, 431 power of commissioners 431 SUPBEME COURT, PLEADHiTaS AND PBACTICE IN— Abatement of action not caused by death of party, 522 not caused by death of one of several parties, >..... 522 not caused by death of sole plaintiff, . 522 not caused by death of sole defendant, . 523 not caused by death of plain- tiff after interlocutory and before final judgment, . . 524 not caused by marriage of a woman, plaintiff or defeud- 'nnt, S24 SUPBEME COUBT, PLBABINaS AND PBACTICE "nS—contimmcL. Abatement of action of ejectment not caused by death of claimant, 538 lilea of, on non-joinder, 322 Absconding debtor action how commenced against, .... 516 formsof writs against, iioS-S Action personal, how commenced, 516 .against absconding debtor .516 no form of necessary to be mentioned in writ, 516 for debts, damages how assessed.'&c. . 520 against two defendants where only one appears, 520 joinder of parties in, 521-2 abatement of, 522-3 on bills of exchange, &c.,— pleas to, . . 527; on contracts, pleas to, 527 on policies of insurance, pleas to, . . . 528 on specialties and covenants, pleas to, 528 plea of nil debet not allowed in any, . 528 on simple contracts, what to be special- lypleaded 528 for wrongs, pleas to 538 for trespass to land, pleas to, 528 for taking goods, pleas to, 529 new defence arising after commence- ment of, 530 for trespass, defendant entitled to parti- cidars, . . • 531 of libel and slander, averment in, . . . 531 of slander, proof in, 531 personal, whenamends may be pleaded, 531 by and against bankrupts, &c., how and brought, .- 533 different causes of, may be joined; . • 533 of ejectment, how c6mmenced and pro- secuted 536 Address to be given by defendant appearing in person, 520 proceedings where no address given, . 520 Addresses to jury on trial, how regulated, 545 Affidavit description of deponent in, 549 to hold to bail, requisites of, i 510 wrong name in, effect of, 517 may be negatived by de- fendant, 517 in.replevintobe filed before vrritissxies, 542 for continuance on ground of absence ofwitness, requisites of, 545 now matter in, may be answered by, . 540 Amendment at trial, power of judge for 536 may be made by court or judge in all proceedings in civil causes, .... 536 party dissatisfied therewitlr may apply for new trial, 636 Amends in personal action; when may be made, 531 Appeal ^ from decision of judge at chambers, se- curity for costs to be given on, t . 653 GENERAL INDEX. 859 SUPB.EME COURT, PLEADIBTGS AND PEACTICB IN— contimuxt. Appeals from decision of judge at chamliers to ho regulated by court, 551 Appsal Causes appellant to enter cause 553 give notice of trial, ... 553 enter appeal or judgment for opposite party affirm- ed, 553 .appeal causes to be tried anew, .... 553 application for jury in, 553 judgment affirmed, effect of, 553 judgnieutrevorsed.effect of, 553 execution may issue on, 554 may be tried by judge at chambers, 551 notice of trial in such case, 551 control of judge in such case 554 Appearance when to be made, 519 after time appointed in writ, 519 may be allowed by court within one year after judgment, upon condi- tions, 520 time for appearance, 530 by defendant in person to contain ad- dress, 520 proceedings where no such address given -. . . . 530 proceedings on, by one of several de- fendants 530 fonn of appearance, 558 in summary causes, 535 in ejectment 537 Argument causes for, entry of, by whom made, . 549 when to be made, 549 papers connected with, when flled, . . 549 how conducted, 550 order in which heard in term at Halifax, 550 may be had without writ issued, ... 550 Assessment of damages _ where default marked, how had, ... 520 may be made by jury, 530 Attorney issuing ivrit, to subscribe same 516 discharge of party from custodyiby.. . 535 entering judgment may sign satisfaction 535 distinction of serving as &c., abolished, 535 when cause called, to state whether for trial 54^ to bear costs of review and re-tax- ation on his bai, when reduced, . . 545 and client; taxation of costs between, 547 costs of, 647-48 Averment of conditions precedent, ■ ■ 539 in actions of libel and slander 531 Bail bond, form of specified, 517 how taken by sheriff, 517 common— abqlished, ......... 531 StTPBEME COTTBT, PLEADIBTGS ABTD PBACTICE TN— Continued. Bail to sheriff, to be bail to action 543 may render defendant at any time, . . 512 ■ to sheriff may appear and defend with- out filing special bail, 543 when to justify 543 insufficient, sheriff liable for taking, . . 543 bond to be returned with capias by sheriff, . - 543 bond, assignment of, how made by she- riff, 543 time for render in discharge of bail in xetnxn. of Twn est inventus, ..... 513 residing at distance, mode of justifica- tion by 043 Bills of Exchange stay of proceedings in actions on— what 547 loss of, when not to be set up as de- fence, • 554 Capias form of, 556 when to issue, 517 return of, 617 how set aside, • . 517 Cases stated for opinion of court without pleading, 525 may be argued without vrrit issued, . . 553 Causes for argument, entry of, 549 by whom entered, . . . 549 continued, order of hear- ingof, 550 for trial, entry of, 544 of action, different, may be joined, . . 533 Certificate of Judge as to costs, when gi-anted 546 Chambers of Judges judge may try appeal and summary causes at, 554 judgments may be delivered at, ... . 551 rules may be made returnable at, . . . 551 summons for attendance before judge at, 550 appeals from decision of judge at, . 553, 4 Commissions costs of, to be costs in cause, 547 Compensation in personal actions, when made, .... 531 Contempt of Court may be punished in vacation, 552 Continuance not to be entered on record, 530 on ground of absence of witness,rnlelbr, 545 Costs of declaration regulated, 516 on discharge of defendant from custody ■ nrider capias 517 on final judgment by default, ..... 519 on admission to defend after final judg- ment 520 on assessment of damages, 520 on judgment after non-joiuder and amendment, 621 on pleas in abatement and amendment, 523 pn setting aside pleadings, 527 pn unnecessaiy pleadings, ....,, 530 860 GENERAL INDEX. SUPKEME COURT, PLEADIWOS AND PKACTIOE IN— continued. Costs of all issues to bo borne by party against whom they are found, . . 530 on acceptance of money paid into coui-t, 532 bill of, to be filed before execution issue, 534 on revival of judgment, 536 on amendment of pleadings, 530 on judgment by default in ejectment, . 536 how recovered on judgment in eject- ment, 538 on confession in ejectment 54:1 security for, in second action of eject- ment 541 taxed by prothonotary in undefended cases 3t) of review and retaxation borne by at- torney—when 545 when reviewed and reduced, proceed- ings, 545 party recovering judgment, entitled to, 546 where less than $8 recovered, not en- titled to, imless judge certify, . . . 540 defendant entitled to, when plaintiff does not proceed, 546 between attorney and client 647 of first trial not allowed on new trial, . 547 security for, when to be applied for, . . 547 when not given in twelve months after service of order— effect, 547 on rules made absolute on discharge, . 547 of commissions to be costs in cause, 547 depositions, 547 examinations de bene esse 547 bills of, to be exammed by prothono- tary before taxation, 647 must be allowed and signed by judge, 547 when taxed to be filed- and when . . 548 notice of taxation of, when to be given, 548 interlocutory, execution may issue for, 548 of making judge's order a rule of court, 549 Counsel only one to be heard on motions arising during trial, • 545 address of, to jury, regulated, . . . . 545 foes of, 648 Damages in nature oi' interest may be given by jury— when, 548 in replevin, may be given by jury to either party, 542 Death of parties not to abate action, ..... 522 of one of several parties, not to abate action, . . .■ 622 of sole plaintiff, 522 of sole defendant, 523 of party between verdict and judgment, effect of, . . 524 of plaintiff after interlocutory and be- fore final judgment, effect of. . . . 524 of claimant in ejectment, not to abate stiit 538 Default llpal juSgraeiit by, when to bo signed, 519 form of specified, . 019 SUPREME COURT, PLBADIM-QS AND PRACTICE IN— continued. Default judgment by, when particulars not given 520 judgment by for want of plea to amended declaration, 530 in action of ejectment, 536 Defeasance must be initten on cognovit or warr.nnt, 552 Defendant appearing in person to give address, ., 520 proceedings Miiere no such address given by, 520 Demurrer to pleadings, 520 p.irty by leave may demur and plead at same time, .')26 in default of amendment of pleading, . 526 to state that it is pleaded by leave, . . .526 judgment on argument of, .527 form of, 527 , form of joinder in, 527 matter of law to be argued must be stated in, 527 demand of joinder iir, 537 when to be argued, 550 Depositions costs of, to be costs in cause, 547 Detention replevin may be brought for unlawful, 542 Discharge from custody under capias, 517 under execution, how made, 534 Discontinuance may be filed, or rule taken therefor, . . 533 of action of ejectment— mode of, . . . 541 of ejectment by one of several claimants, 541 Docket of civil causes for trial, how made up, . 541 of jury causes for trial at Halifax, when called, 544 of causes for trial to be called but once, 541 on ch'cuit, when to be called, 544 Documents copies or inspection of, may be de- manded, 529 demand, no stay of proceedings, . . . 529 inspection of, how obtained when re- fused, ' 529 may be set out in whole or in part, . . 529 Ejectment property to be described, 530 to be commenced by \vr-it of simmions, 536 proceedings as in other actions 530 damages may be given in, 530 and costs in, on default, ... 536 property and parties, how described, . 536 writ in, how served when possession vacant, 637 notice to appear in 537 forms to be used m, specified, .... 537 appearance in, by whom, 537 plea, when considered defence to whole, 537 defence may be limited to part 537 plea— substance of, foi-ms of, 537 want of certainty in, , , 537 GENEKAL INDEX. 861 5UPKEME OOUKT, PLEADINGS AND PRACTICE IN-oontimted. Ejectment judgment where part uudefeuded, . . 537 when case considered at issue, 537 trial of, as in other actions, .')37 actions of by joint tenants, &c., . . . . 53S where plaintiffs title expired before trial, &c 538 execution upon judgment in 538 death of claimant not to abate suit,' . . 538 discontinuance of action of, 511 confession in by sole defendant 541 one of several defen- . dants, 511 effect of judgiiient on, . . 541 special verdict may befound in, . ... 541 judgment how signed on special ver- dict in, 541 security for costs ui second action of, . 541 judgment for defendant hi, 541 jurisdictionof court or judges in, ... 543 Enquiry AVilts of, when returnable — judgment on, &c • 555 Entry of causes for argument 549 trial 544 Error death of either party between verdict and judgment not to be alleged for, 5i4 upon question of law stated without . pleading, • . . 525 Execution form of writ, specified, 534 when returnable, ... • • . '534 how to be executed .534 when to be issued 534 against M. P. P 534 what may be taken in, . . . • 534 special return to be made on 534 property exempted from, • 534 to bind goods from delivery to sheriff, 534 interest on judgment may be levied forimder, 534 discharge from custody rmder, .... 534 may issue within six years without re- vival, 535 on writ of revivor, 535 upon judgment in ejectment, 538 after special verdict in ejectment, .... 541 for defendant in eject- ment, 542 return of non est inventus on proceed- ing by bail on, ■ . • 543 may issue for interlocutoiy costs, . . . 548 in appeal causes, 554 Ealse pleas may be set aside by court or judge, . . 527 Fees for services in this chapter prescribed, 551 attorney," 017-8 " commissioner," 640 •'constable," 646 " coimsel," 648 " crier," 646 I'.juror," , .,,,,,,.,.... 046 SUPKEME COUKT, PL^iADINGS AND PRACTICE IN— continued. Pees * of " master," (j49 " prothonotary," 643-t •'sheriff," 644-5 " witness," 646 penalty for taking excessive 552 Forms of writs, pleas, &c., 553, 506 Fraud must be specially pleaded 528 General rules made since 4th April, 1853, confirmed, . 531 may be made by judges in term, . . . . .'551 not to go into operation until published in royal gazette, 531 to regulate practice to be made by court 534 Inspection of documents may be demanded, . . . 520 of documents, how obtained when re- fused, ; .... 529 demand not to stay proceedings, . . . 520 Interest allowance of by court or jury, .... 548 damages in nature of, may be given, . 548 judgment with, may be entered on ver- dict where judgment delayed by rule, 531 Issue may be tried by judged without jui^y — when, 552 Joinder of too many plaintiffs, S21 non-joinder of plaintiff, 521 non-joinder of plaintiff, how amended, 521 of too many defendants, 522 of clauns of husband alone in actions by husband and wife 522 action not to abate by death of ijarties, .522 action not to abate by death of one of several parties 522 action not to abate by death of solo plaintiff, 522 action not to abate by death of sole defendant ^23 Judgment not final, unless particulars given, . . 519 by default on non-appearance, .... 519 by default on non-appearance when particulars not given 520 parties admitted to defend after final, . 520 where only one of several parties has appeared, 520 in case of death of sole plaintiff, ... 623 in case of death of sole defendant, . . 524 in case of death of party between ver- dict, &c., 324 in case of marriage of woman, plaintiff or defendant 534 upon questions stated without plead- ings, 525 by default for want of plea to amended declaration, 530 of non pros for want of replication to amended pleas, 530 pu acceptance of money paid into oo\u-t, 533 862 GENEKAL INDEX. SUPKEME OOUBT, PLEADINGS ABTD PKACTIGB IN— continmd. ' Judgment upon discontinuance ■ ... 533 to bear interest, 534 liow revived, 535 proceedings on revival of, wlien defen- dant out of province 536 in ejectment by default SSC where' part undefended, . 537 on confession of action, . 541 on confession, effect of, . 541 in special verdict, how signed 541 for plaintiff at Halifax when cause called and defendant does not an- swer, 544 for iJlaintiff on circuit, 545 in undefended cases may be signed by in-othonotary, 545 to carry costs 546 for not duly proceeding to trial, .... 548 final, how and when entered, 548 final, date of, 549 counti-y, entry of, 551 country, entered since Ist Sept., 1851, effect of, 552 may be delivered at chambers, .... 551 may be entered with interest on verdict, 551 Jurisdiction of coiu-t or judge as to amendments, . 526 in ejectment, .... 542 Jury may be demanded, or ordered by coui-t, on assessment of damages 520 may award damages in replevin to either party,- 542 causes, when to be entered for trial, . 544 causes, when to be called in Halifax, . 544 address to, on trials, regulated, . . .545 may find special verdict in ejectment, . 541 may allow interest— when 548 may give damages in nature of interest, 548 issue may be tried by judge without, 552 Justifloation of bail when to be made, 543 where parties reside at a distance, . . 543 Libel what may be aveiTed in action of, . . . 531 when averments put m issue, 531 Money paid into court to be pleaded, 531 how paid in and out, 531 replication to plea of, 532 Motions during trial, one comisel only to be heard on each side, 545 order in which heard on first day of term at Halifax, 550 New assignment not to be pleaded but by leave, .... 531 plea to 531 New matter in affidavit may be answered by affi- davit, M6 New Trial costs of first trial not allowed on, . . . 547 proceedmgs for, when rule nisi reftised by judge "15 SUPKEME OOtTKT, PLEADINGS AND PKACTICE IN— continued. New Trial rule nisi for, when to -be argued, .... 519 when party dissatisfied with amend- ment, 536' Non-suit judgment of, for not proceeding to trial, 548 Notice to appear and plead, 520 to plead may be endorsed on declara- tion or delivered separately, . . . 530 of non-joinder of plaintiff, 521 to plead, with amended declaration, . . 530 of trial, may be endorsed on summons, 519 of appearance, after time specified in writ 519 when received in evidence 533 to appear in action of ejectment, ... 537 of trial, time of service of, 543 of continuance of trial 544 of taxation of costs, when given, . . . 548 Order to hold to baa to be grounded on affida- vit 516 for particulars, how obtained, 519 , - amendment of pleading, 526 setting aside pleas, 527 plans of property in trespass, . . . 531 further time to plead, how granted, 532 copy or inspection of documents, . 529 payment of money into court un- necessaiy, 531 stay of proceedings, 547 security for costs, 547 examination of witnesses, costs on, 547 Papers connected M'ith arguments, when to be fded, 543 copies of, for judges on argument. . . 650 Particulars of claim to be endorsed on writ, . ... 518 effect of non-delivery of, 519 to give credits if any 519 of set off to be annexed to plea, .... 519 when not to be adopted by adversary, . 519 order for, how obtained, 519 time to plead after the deliveiy of, . . 519 defendant may demand, ia tresjiass, . 531 Payment of money into couit to he pleaded, . . 531 how made, .... 531 not to be given in evidence unless pleaded, 528 Penalty for taking excessive fees, 55^ action for, when and where brought, . 552 Plea time for, 520 in abatementof non-joinder, 522 in actions on bills of exchange, &c., . . 527 contracts, 527 specialties, 528 of nil debet, not allowable 528 of matters in confession and avoidance to be special, 528 of fraud to be special, 528 of payment to he special, ,.,..., 528 GENERAL INDEX. 863 STJPEEME aOUBT, PIiEADUiTGS AND PBACTICE'IlSr— oonMnMed. Plea in actions for Avrongs independent of contract, 528 in denial of same, requisites of, ... . 528 in actions for trespass to land 528 taking goods, &c., . . . 529 several may Ije pleaded, 530 of puis darrein cpntiimance, how plead- ed ~ 530 to new assignment, 531 of payment of money into comt, . ... 531 in tiar— formal parts abolished 532 not to he waived without leave, .... 532 form of commencement of, 533 second, maybe pleaded without leave, 533 one to several counts allowable 533 forms of pleas, 565-0 Pleadings sulilciency of, in declaration, . . . . ■ 525 immaterial statements to be omitted, . 535 not necessary in summary cases, ... 525 party may plead and demur at same time, 536 not insufficient for defect in form, &o., . 536 duplicity, &c., . . . 526 amendment of, 526 demurrer in default of, . 536 false, frivolous or vexatious, may be set aside, 526 generai .issue abolished 526 forms of, in appendix B suflcient, . . 526 in actions on bills of exchange, what inadmissable, 526 in actions on bUls of exchange, &c., must traverse some matter of fact, 526 in actions on contracts, matters in con- fession and avoidance must be specially pleaded, 526 in actions on policies of insurance, averment, 528 no further, after plea of defendant ex- cept, &c 529 express colour, oyer, profert, &c., abolished, 529 averment of performance and denial, . 529 Inspection of documents, demand of, not to stay proceedings, 539 documents, how to be set out in, . . . 529 to specify concisely facts denied, ... 529 rule to plead and demand, 'Of plea abolished, 530 puis darrein continuance, how pleaded, 530 how to be signed, - 532 not to be waived without leave, .... 532 to be seiwed and filed within time limited, 533 Practice in cases not provided for, how regu- lated, 551 rules for, to be made by court, ...... 554 Priority of Counsel how regulated at Halifax, ....... 550 Proceedings against non-residents against British subject, non-resident, . 567 against foreigner, non'resident,5 .... 567 amendment of writ in such cases, ... 568 SUPBEME COUET, PLEADIlSrGS AND PEAOTICE IN— continued. Proceedings against non-residents affidavit of service of writ in such cases, 56S forms, substitution of, in such cases, . 568 forms of writs in such cases 569 penalty for tendering affidavit with false signature, 5C8 concurrent M'rit may he iosued 568 Prothonotary may grant order for particidars 510 may gi-ant order for further time to plead, 532 to make up docket for trial— mode, . . . 544 list of jury cai;ses, when to bo given to, at Halifax, 544 may tax costs and sign judgment, in undefended cases, 545 may grant order for security for costs, 547 to examine bills of costs before taxa- tion 547 at Halifax, to enter county judgments, &c 551 to file warrants of confession, 552 to register same in book, 553 fees of, 643-4 Questions by consent may be stated for trial without plead- ings, 5J3 . judgment tliereon, how entered, .... 525 of law, may be stated for opinion of court without pleading 525 Eeplevin affidavit to be filed before issue of Amt, 543 in, form of 561 bonds in, forms of, 562 wlien action may be brought, 542 affidavit to be filed before writ issues, except where property distrained, . 542 security to be given to sheriff, 542 how assigned by sheriff, . . . 543 defendant may retain possession of goods on giving security, except, &c 542 damagesmay begivenhyjury in, . . . 542 security to sheriff in — form of, 562 BepUcation formal parts abolished , • ■ • 532 one to several pleas, allowable, 533 may be without leave of court, . . .' . 528 several maybe pleaded, 530 to plea of set off'' 529 to amended plea 530 to plea of payment of money into court, 532 Beturn of writs of mesne process, 517 endorsement of sheriff on same 518 of writs of execution, 534 to be special, . . 634 of non est inventus — proceedings by bail on 543 Eevlvor writ of how sued out, . 535 proceedings on,i 53S writ of, where plaintiff dies betrveen in- terlocutory and final judgment, . . 524 writ of, hi case of marriage of woman plaintiff or defendant , . . > . . 524 864 GENKEAL INDEX. SUPEEME COUH.T, PLEAD lUGS AND PKACTICB IN— continued. Kule for joinder in demuraer not required, . 537 to plead, abolished, 530 for further time to plead, how gi-anted, 532 for discontinuance 533 for execution on revival of jtidgment, . 335 for discontinuance of action of eject- ment 541 for continuance on ground of ahsence of witness, 543 nisi for new trial when refused hj' judge, proceedings, . . .- 545 made absolute or discharged, costs on, 547 for examination of witnesses, costs on, 547 ?!&ifornewtrial,whentobeargued, &c., 549 nisi may be granted ex parte, 550 by one judge, . . 551 Satisfaction Piece by whom to be signed 535 form of, 535 Scire Facias unnecessaiy within six years after judg- ment 535 how sued out, 533 Security m replevin to be given to sheriff, ... 642 may be given by defendant and property retained, . 542 how assigned by slierifl', . . 542 Security for costs how obtained 547 in second action of ejectment 541 on appeal from decision of judge at chambers, 553 when not given in twelve months after service of order,— effect, 547 when to be applied for, 547 Set-off against plaintiff improperly joined, . . 521 exceeding plaintiff's claim, judgment, &c 548 of mutual^debts, 532, 548 judgment, &c 548 to be pleaded by defendant, 519 when not made in prior suit, costs re- gulated, . 1 548 Service of civU process invalid on Lord's Day , . 518 of writ, to be personal when practi- cable, i . . ■ 518 constructive, may be ordered, . SIS against corjioration, how made, 518 of proceedings on defendant personally, 520 of proceedings on defendant where no acldress given, 520 of notice of appearance and defence in summaiy causes, 520 of notice to plead, &c., after amend- ment, 530 of pleadings generally, ........ 532 of notices in cause, when received in evidence, ; 533 of writ of ejectment, 537 of writ of ejectment in case of vacant possession, .' 537 of notice of trial) when suflicienti . . . 543 1 SUPREME COUKT, PLE ADESTOS AND PBACTICE IN— continued. Service of notice of countermand, when suffi- cient, , ... 544 Sheriff proceedings of, on capias, 517 writs of mesne process to be directed to 618 endorsement of, on return 518 wi-its of execution to be directed to, . . 534 to mai'e special return on writs of ex- ecution, with account of fees, ... 534 must obey directions on execution, . . 534 must endorse on execution time ot receipt 534 discharge of party from custody by, . . 634 bail to, to be bail to action, 542 bail to having justified, may appear and defend without filing special bail, 543 bail to, when to justify, 543 liable for taldng insufficient bail, ... 543 may relieve himself from liability before judgment by rendering defendant, &c 543 to return bail bond with capias, .... 543 assignment of bail bond, how made by, 543 fees of, 644-5 SlEtuder precise words need not be proved, . . 531 what may be aven'ed in action of, . . . 531 when avenneuts put in issue, 531 Stay of proceedings in actions on bills of exchange, &c., on payment of debt and costs, ... 647 order for, until security for costs given, 547 order for copy or inspection of docu- ments not to be, imless, &c 529 Suggestion of deatli of sole plaintiff, 522 defendant, 523 of one of several claimants, 538 of sole claimant, or one of several claimants before trial, 539 of sole claimant, or one of several claimants after verdict, 539 of a joint defendant, 539 of sole defendant, or all defendants before trial, . 540 of sole defendant, or all dcfeildants after verdict, 640 of one of several defendants defending forajjortion, ... i ........ 540 where surviving defendants make de- fence 6^0 Suits in Supreme Court not to be brought for less than twenty dollars, . 553 Summary Suits actions for sums under eighty dollars to be, i . 4 .. i ........ . 553 pleanotnecessai-j" in, 525 written notice of appearance and de» fence to be served in 525 set off, if any to be served in, 525 applicationforjury In, howmade, . . . 553 when to be entered for trial in Halifax, 554 .when to be tried. . 554 may tie taied by judge at chambers, i . 654 GEXERAL ISDEX. 866 SUPREME eOUBT, PLEADUiTGS AND PBAOTIOE IN—continwd. Summary Suits notice oftrial of, in such case, 651 couti'ol of judge in sucli case 554 Summons form of writs of, 555-6 requisites pf writs of, 516 for attendance before judge at cham- bers, 650 Sunday, Christmas Day, Oood Fri- day, SCO. time to be reckoned exclusive of, . . 549 Taxation of costs may be made by prothonotary in unde- fended cases •• 546 such may be reviewed by court or Judge, 645 proceedings on review of, and reduction, 545 between attorney and client, 547 bills to be examined by prothonotary before 547 notice of, when to be given 548 Time, Computation of how to be reckoned 549 to be reckoned exclusive of Sunday, &c. 549 Time to plead only granted upon affidavit 532 may be granted by prothonotary, ... 532 Trespass quare clausum /regit property to be described 530 plea of noncommittal of, effect of, . . . 538 Trespass to person, &c. defendant in, entitled to particulars, . 531 Trial address to jury on, regulated, 545 adjournment of, may be ordered by judge, 545 costs of new, regulated, 547 of civU causes, docket how made up, . 544 of ejectment as in other actions .... 537 motions arising during, how heard, . . 545 new, proceedings for when rule nisi re- fused by judge, 545 new, not granted if evidence sufficient, 546 power of judge to amend pleadings at, 536 Venue how to be changed, 525 need not be stated in body of -(vrit, . . 526 Verdict special, may be found in ejectment, . . 541 judgment, how signed on special ver- dict in ejectment . 541 judgment for defendant in ejectment , . 542 if evidence sufficient to sustain, no rule for new trial granted 546 rule nisi to set aside, entry for argu- ment of, 649 judgment with interest, may be entered on 651 View by jury abolished, 533 Warrants of attorney to confess judgment to be filed, when, 552 to be registered by prothonotary, . f . 552 lee for filing same 552 Writs of Mesne Process forms of, in personal actions pre- scribed 516 109 SITPKEME COURT, PLEADIM-GS AND . PBACTIOE IN— conMnwerf. Writs of Mesne Process how subscribed, zVi how endorsed when for sums less than $80 510 forms of action need not be mentioned m, . . 516 teste of, abolished 516 tobedated the day of issue, 516 to contain declaration, 51G discharge of defendant when in cus- tody under, and plaintiff not pro- ceeding to trial at first sittings, . . 517 when returnable 517 form of return in 518 how directed and executed, 518 concurrent, may be issued, 518 endorsement by sheriff on retmn ot, . 518 civil, not to be served on Lord's day, . 618 service of, to be personal when practi- cable, 518 constructive, may be or- dered, 518 on corporations, how made, 518 particulars of claim to be endorsed on, 518 notice of trial may be endorsed on sum- mons, 51S in ejectment, how served, 537 of enquiry, when returnable, &c., ... 555 SURVEYOBS OP HIGHWAYS AND HIGHWAY LABOR, EXCEPT IM" HALIE AX.— (Appendix.) not to extend to city of Halifax, 735 districts for statute labom-as established confirmed 735 sessions may erect i;ew districts, or alter old ones, 735 persons liable to perform statute, and the number of days,labour which they shall perform, 735 additional labour to be perfoiined by owners of cattle, &c 736 owners of working oxen when to be re- lieved while pasturing them, 736 penalty for neglecting to send teams when required, 735 householders over sixty years of age own- ing cattle, &o., shall send them to work when notified— penalty for neglect, . . 736 owner of cattle to send teams, &c., if he own one— penalty for neglect, 736 day shall mean eight worlting hoiu-s, ... 736 lists to be made of persons liable to labor, and by wliora, 735 time within which labour is to be per- formed—length of notice to be given — surveyors and commissioners to attend and oversee work, and to be excused from highway labour, 736 seasons specified in certain coimties for labour to be performed, 737 absent persons liable to perform labom- to do so on returning, unless on proof of performance of labour elsewhere, ... 737 in case of obstruction of roads or bridges, persons ia. district to attend immediately on notice to remove same, 737 866 GENERAL INDEX. SUBVEYOKS OV HIGHWAYS, &o.,-con. persons may pay commutation of labour at ■ sixty cents per day 738 forfeiture for persons not labouring or pay- ing commutation 738 justices may relieve poor persons from portion of labour, 738 persons residing on islands not liable to perfomi labour on main land, 738 sessions may grant permission to per- form labom- on particular roads, . . . 738 surveyor not to alter highway without consent of two justices, 739 winter labourto beperformedwhen deemed necessary, 739 surveyor to make annual return to clerk of the peace 739 STJBVBYOBS OP HIGHWAYS, &o.,—con. statute labor may be remitted by justices on certain terms 739 absent persons to be notified after their return,. 739 surveyors of highways to be paid for their attendance 739 surveyor liable to pay double the amount I of labour lost by neglect— application of penalty, 739 fines, &o., incuned by minors recoverable from parents or guardians 740 forfeitures how to be sued for, recovered and apportioned 710 appendices A. and B., 7-10 StmVEYOBS OF SHIPPESTQ. CSee Ships, Registry of J 293 T. TELEGBAPH FOB MXLITAEY PUB- POSES. building of line of telegraph for military purposes authorized 149 where to be placed, 150 privileges of Nova Scotia electric telegraph company given to her majesty or oflcer duly appointed l.iO all fines, penalties, &c., for protection of telegraphs, to apply to this line, .... 150 to be used for imperial and military pur- poses only, - . . . 150 TEliTAJSrCY BY THE CUBTESY. ( See Bescent of Real' Estate,) 750 TBBTAIirCY IN COMMON. (See Joint Tenancy,) 402 (See Partition of Lands,) 597 TEWAITCY, JOHiTT— (See Joint Tenancy,) 402 TEM-ABTT. (See Distress for Rent,) 613 (See Tenancies, JForcibU Entry, i.fc.,) .... 604 TEWDEB. amount of legal; in silver or copper, ... 320 THBEATEMTNG LETTBBS. punishment for sending 675 what shall be held sending, ........ 675 TIMBEE. (See Inspection of ZMmier,<}c.,) 337 (See Rivers, Conveying Lttmier on,) .... 389 TOWIiT CLEBK. (See Common Mdds,) 280 (See Stray Borses and Cattle,) 392 (See Weights and Measures,) 341 TOWBTSHLPS, OEETAUf OOUNTY ANX) TOWKSHIP OPPICEES. boundary lines of townships confirmed, 161, 184 surveyors of township lines, how appoint- ed, their duties, 184 town officers, how appointed, 184 siu'veyors of highways, how appointed in case of omission, 185 x)ilicers to be sworn, 185 TOWBTSHIPS, CEBTAnS- COUKTY AJSD TOWNSHIP OFFICERS— continned. flue for reflisal, or neglect of duty, . ... 185 vacancies, how filled,'. 185 custody of town plans, grants, &c 185 fee for inspection, 185 sessions of Halifax may appoint constables to attend courts 185 special constables, when and how appoint- ed . 185 by whom sworn, directed and controlled, . 185 diiration of appointment, 185 in case of disorder at public meeting, special constables may be verbally appointed, 186 penalty on, in case of refusal to serve, . . 186 appointment and pay of police constables, 186 fimds, how raised, . i.*. 186 penalty for resisting in execution of duty, 186 clerk of peace to post lists of officers, . . 186 officers, when to enter on duties 186 surveyors of highways indenmified, . . . 186 officer eligible tq^re-appointment, 186 siu-veyors of highways to make returns, . 187 penalty, . . ; 187 justices in session to fix salary of county treasurer, ■ 187 where duties not defined, justices may determine 187 form of oath 187 definition of teims 187 employees of lunatic asylum exempt from acting as township officers 637 TBEASOISr. defined— punishment, 655 imperial acts in force in province 655 TBEAStJBY WOTES. commissioners of, how appointed and sworn 159 tenure of office, • 169 may be expressed to be payable in dollars, 159 denomination and form of, to be fixed by governor in council, .......... 159 no note to be less than four dollars, .... 159 impressions of, shall be kept by provincial secretary until required by commissi- oners, ........ 159-£0 GENERAL INDEX. 867 TBEASUKY NOTES-contiiiued. receiver general to pay all warrants in gold, silTer, or treasury notes, .... ICO receivable at treasury and in payment of duties 160 defaced and torn notes to be lodged in se- cretary's office ICO (See Currency) 323 TBEATX BETWEEH" HEK MAJESTY AHTJ THE UNITED STATES OE AMEKICA. (See Ctistoms Duties— Part Second), .... 2i TREES. punishment for damaging or destroying, . C78 TKESPASSES. (See Crown Property, Trespasses to,) . . . HC (See Petty Offences, ($-c.) 020 TBOOPS. ( See BilUtHng of Troops,) , . Ii7 TEtrSTEES, &0. (See Executors, -HIPPIH'G ABTD PILLORY. punishment of, abolished, 094 WILLS OP REAL AWD PEESOIMAL ESTATE. Age persons under 21 years incompetent to make] will, 3!>7 Alteration? how far to effect will 309 Appointment how executed to be valid 398 Conveyance how to affect will 399 Creditor being named shall not prevent being witness, 398 Definition of terms words "die without leaving issue," . . 401 other words, 401, 2 Devise what property subject of, 397 by man-ied woman, when not void, . . 398 to attesting witness when void 398 general, how construed, ........ 400 of real estate without words of limita- tion, how coijstrucd 100 WILLS OP REAL AND PEESOWAL ESTATE— ccraWnued. Devise of real estate to trustees or executors, how construed, 401 of real estate when not to lapse, . ... 401 of,re!\l estate to testator's children, when not to lapse, 401 Execution of wills regulated 308 Executors may be witnesses, 308 to be trustees to fulfil contrjicts, &c., . 400 devise of real estate to, how construed, 401 Legacies lapsed to be included In residu.ary devise, 400 Marriage wills revoked by, &c 390 Married women wills may be made by— when 397 wills of— not void for gift to husband, . 398 Obliteration how far affects will, 399 Penalty, for si;pressing a will, 401 Property what may be devised, 397 what may be devised by married wo- man, 397 Real Estate may be devised, 397 rules for construing wills of, 400 Revocation of wills, by marriage 399 by presumption 399 how 399 how revived 399 Soldiers and Seamen wills of personal estate of, 398 Witnesses two or more required 398 how to attest and sign 398 devise to, void— exception ,398 executors not incompetent as 398 WITIfESSES (See Costs and Fees,) G40, 053 (See EiHdence, ^'c.,) 570 WOODS AND MARSHES, BUR]Sri]SrG OP- sessions to make regulations for, and affix penalties for breach, 389 limitation of prosecutions for oft'ences, . . 389 persons convicted, not having goods to satisfy penalty, may be imprisoned, . . 3SD WOODCOCK. fSef Birds, Preserration of,) ....... 304 GENEKAL INDEX. 869 WORKS, BOABD OF- compositiou of, KI! acts legalized, and salary of chairman, . . 85 title and management of certain fproperty vested in lioard, of, . ■ 85 board a body corporate, . '. So governor in council may make regulations for superintendence, &c., 85, 86 lands, how obtained and valued 80 appeal, 86 clerk of board of, and salary, 80 superintendent of light and salary, .... 80 diity of superintendent, ■ • . 86 subject to superintendence of board of, . . 86 clerk of works and salary 87 .accounts how kept and money drawn, . . 87 may make rules for management of peni- tentiary 87 may appoint visitors tlierefor .md may en- able them to make speci.il orders, ... 87 may contract for maintenance and employ-, ment of prisoners 87,88 to report .annually to legislature 88 may make regulations for goverament of Sable IsLand, St. PiiuPs Island and Scatterie 91, 92 members of, may act as justices, &c., on above Islands, 92 ■WOKKS, StTBSOBIPTIOIirS TO PtTB- LIC- (See PiMic Works, Subscriptions to J . . . 221 WKEOKS AND WKBOKED GOODS. Appeal from award for salvage— costs on, . . 301 Arbitrators • how appointed, 301 proceedings by 301 award of, 301 fees of, 301 may call for books, &c., 301 Claimant proceedings where none, 302 Concealment proceedings and punishment in cases of, 298 Costs on appeal 301 property saved liable for, 302 Distress vessels in, how assisted, 209 Disobedience of orders penalty for, 299 persons guilty of, not entitled to sal- vage, 302 Finding goods notice of, to be given immediately, . . 398 penalty for omission, 298 Goods abandoned or wrecked, how preserved, 298 notice to be given to officers, 298 WRECKS, ao.,— coM«m(C■ ^ s ■r ^ fv4 .f^J%t ^^^ fl^l W , to 4 . •! ^.^ - i; .*»* .1 ^^i^'^. jt ^fr I ^ » f V -^ '^^^$^- t^*- ^ m>:;"t£!?^' ... .