MARSHALL] KEN 123 .A33 iiaraliaU lEquttg (UoUerttott Oltft of 1. 31. maraljaU. ICffi. 1. 1834 3 1924 084 250 301 Will RULES AND STATUTES SEGDIATIXG THB PRACTICE OF THE COURT OF CHANCERY IN THIS PROVINCE, NOW THE SUPREME COURT IN EQUITY." ALSO RULES MADE IN THE SUPREME COURT SINCE THE PUBLICATION OP ALLEN'S RCLES IN 1847. By GEORGE BOTSFORD, Esquire, BAKRISTEB AT LAW. FREPERIOTON. a. m. PBNETY, PKINTER TO THE QUEEN'S MOST EXCELLENT MAJESTY. 1865. 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/cu31924084250301 /// Thy 6" ^cZ^. ^. »>' ^^ 9^2,^^,^ ^?^^ _ PREFACE. The difficulty of ascertaining what the Practice of the Court of Equity now is in this Province, has induced me to offer to the Profession the following collection of the Rules of Court and Statutes relating thereto, in Pamphlet form. The exten- sive field of enquiry left open by the second Section of Sub- Chapter 1, of 17 Vic. c. 18, precludes my attempting an analy- sis; and I have therefore given the Rules in extenso, as made from time to time, together with the Acts of Assembly esta- blishing the " Supreme Court in Equity," and regulating its Practice. I have also, for the convenience of reference, in- cluded portions of the repealed Acts of Assembly. As the enactments of the 17th Vic c 18, were principally taken from, and ai-e similar in terms to, the Imperial Statutes 15 and 16 Vic. c. 80, " The Master in Chancery abolition Act;" and 15 and 16 Vic. c. 86, " The improvement of Juris- diction of Equity Act," I have added some decisions of the English Courts under these Statutes, and the consolidated Orders of 1860 where they have appeared to me to be appli- cable. In reference to the construction of the 17tli Vic. c. 18, by which a Judge may be called upon in any part of the Province where he may chance to be, to entertain or decide matters connected with suits in Court, I have ventured to note doubts entertained by some of the Profession. I must express my full conviction to the opinion which seems to be gaining ground with the Profession, that the abolition of the Court of Chancery, transferring its jurisdiction to the Supreme Court, and fastening its duties upon the Com- mon Law Judges, was not only a mistake, but inexpedient and prejudicial to the interests alike of suitors and the public at large, and not compatible with the increasing duties and labours of the Common Law Judges. (f). In 1841, when the Equity jurisdiction of the Court of Ex- chequer was transferred to the Court of Chancery in England, two additional Vice Chancellors were appointed, and since /^y_ that time two more Equity Judges, Lords Justices, have been created. I have included in this collection the Rules of the Supreme Court made since the publication in 1847 by Mr. Allen, now His Honor Mr. Justice Allen. G. BOTSFORD. Frederkton, November, 1865. GENERAL RULES OF THE COURT OF CHANCERY. 8th July, 1826. Q^erks m Court. Whereas tli« appointment of persons to be Clerks in the Gonrt, who reside in different parts of the Province, and are remote from the place where the Sittings of th« Court are held, has been th« occasion of great inconvenience, and has exposed the records and papers of the Court to accident and loss ; It is therefore ordered. That all the appointments here tofore made of persons as Clerks of this Court, be and the same are hereby revoked and vacated : And it is further Ordered, that the Register of this Court be theofficey in lieu of the Clerks, to transact and file all proceedings by Bill and Answer, and to have the custody of all records, papers and proceedings relstin^ to causes in equity, and to make iand sign all office copies thereof, and to enroll the decrees of the Court,- and to sign and seal all writs and processes on the Equity side of the Court, and to perform all other sucli like services which appertained to the office of Clerks of this Court. 29th June, 1827. Qlerks in CoMrt. It is Ordered, That all the former Clerks of this Court do forthwith deposit with the Register, all Bills, Answers, Pleas, Demurrers and other papers filed and remaiuing with them as such Clerks, in order to the same being filed gratis with the said Register, in furtherance of the order of this Court of the eighth day of July last. 4th June, 1839. [Under 2ncl Vic. c. 35, A. D. 1839.] Indorsement of Bills. 1. That all Bills to be filed with the Register be indorsed with the name or firm of the complainant's solicitor or solici- tors, who shall file the same, and the title of the suit be entered by the Register in a book to be by him kept for that purpose. Subpoenas. 2. That the names of all the defendants in a suit may be included in one subpoena to appear. 3. That all subpcenas and other processes of the Court shall be sealed with a seal, to be kept by the Register, on which shall be inscribed the words f Court of Chancery." 4. That the several writs of subpoena shall be in the form mentioned at the foot of these orders, or as near as may be, with such alterations and variations as circumstances may require. 5. That it shall not be necessary to file a praecipe for the subpoena, but that on a subpoena for costs being sealed, the certificate or report shall be produced to the Register, as his authority for sealing it. Indorsement of Subpoena. 6. That the name or firm of the solicitor or solicitors issu- ing a subpoena shall be indorsed thereon. Service of Subpoenas. 7. That the service of subpoenas shall be effected by de- livering a copy of the writ and of the endorsement thereon to the person to be served therewith, and at the same time producing and shewing the original writ. 8. That the time of serving any subpoenas (except for costs,) shall be limited to the last day of the term next following the term or vacation in whibh it issued out. Appearance. . 9. That, defendants shall in all cases have thirty days to appear, from the day of service of the subpoena, exclusive of the day of servipe. ' 10. That the mode of appearance shall be by filing a note in writing of such appearance with the' Registe'r, and by giving a notice thereof to the plaintiff's Solicitor. P)'o Confesso. 11. That ia case the defendant neglects to appear in due time after the service of the subpoena, on affidavit of such service and default, an order may be made that the Bill be taken pro covfesso unless the defendant appear in twenty days from the date thereof exclusive ; which order shall be inserted in the Koyal Gazette at least ten days before the day limited for the appearance by the said order ; and at the ex- piration of the time so limited, in case no appearance shall have been entered and notice given, the bill may be ordered to be taken pro confesso. Attachment. 12. That it shall in no case be necessary to issue an attach- ment with proclamations, or a commission of rebellion, but that in case of the return of non est inventus to a writ of at- tachment, the party may at once- proceed to a Sergeaiit-at- Arms. Copies of Pleadings. 13. That the solicitors of the plaintiff and defendant res- pectively, shall be entitled to furnish the opposite party with copies of the pleadings of which copies are required to be delivered. Dismissing Bills. 14. That in case the plaintiff's solicitor neglect to deliver to the defendant's solicitor a copy of the bill filed,; within thirty days after the appearance of the defendant shall have been put in and notice given, the defendant may move that the bill be dismissed, which may be ordered accordingly. Pro Confesso. 15. That the defendant shall have tw:o calendar months, exclusively, to put in a plea, answer, or demurrer, after having been served with a copy of the plaintiff's bill, with- out any order for such purpose, and in default of so doing on fourteen days' notice of motion given by the plaintiff and motion made in open Court, the bill may be ordered to be taken forthwith pro confesso, unless the Court On special circutaatances disclosed by affidavit should allow further time ; in which case no such order shall be entered until the expiration of the further time allowed. English JPraclice. 16. That in all cases where, by the English practice, a dif- ferent time is allowed or prescribed for the performance of any act in town causes and country causes, and no provision is made for the same by the practice of this Court, the time for the performance of such act shall be the time allowed in country causes, without rieepectto residence. SweaHny to AnSviffrs, ^c. 17. Tha,t all answers and pleas may be sworn before any one of the Masters in Ofdiiiaty or Extraordinary, and that all pleadings, as well as the bill, be filed with the Register and indorsed with the name ot firm of the solicitor or solicitors by whotn the same are filed. Amended AUswer. 18. 'that where. Upon exceptions to any an&wer, it becomes necessary to put in an amended answer) in case such amended answer be not put in in due time, it shall not be necessary for the plaintiff to proceed hy attachment, but he may give notice of motion that the bill be taken pro confesso, tlnless the amended answer be put iii within ten days aifter the service of such notice ; and in" ease the a,m6nded answer be not put in, and a copy delivered within the time, the bill may be ordered to be taken pro confesso. Issue. 19. That the cause shall be eonsidered at issue by the replication and no subpoena to rejoin shall be necessary. Master's Oath. ' 20. That the oath to be taken by the Masters in Ordinary, as examiners, shall be in the form prescribed in that behalf in the appendix to these orders, and that the sar&e be admin- istered ih^ opep Court, and that the Masters so sworn do subscribe their names, together with the day and year of being so s#orn, on a foil tb be kept by the Register for that purpose ; and that wlien examiners shall be specially ap- pbinted by order of the Coutt for taking the examinations in any cause under the prdvisibns of the Stattite of the 2d Victoria, 6htitled "An Act for the improvement of the Practice in the Court of Chancety," such person tnay be either sworn in open Court, or before sotne person empowered by commission under the seal of the said Court to administer 9 the oafh-; and in ca«e the -oath be administered in Court, an ■entry shall be made in the minutes, of the satne, and a copy thereof, together with the order by whicli sucli person sh-all have been so appointed, shaM be annexed to the copy of the «xamina he applied a& Faff heretofope been done ins I tEis"jProvinee with respect to the practice of the said Court I when this Province was erected, together with the existing rules', orferSy practice, and fees, as' now estahlislted in the Court of CTiancery artMs ProviBce,, whether framed or constituted under the authority of any repealed Act" of Assembly or otherwise, subject ta tbe provisions of the several Chapters of" this TitIe,aEi£f to any modifications of the whole under the- aext following Sections, shall be the system of proeeedmg for the said Supreme C'oxErt in ETqinty, (b) (i) Vide'Gmai, Chi Pi. 4th Ed. ^ DsuHJeU, Ck Ps. Ed. 1831 f andSmit!., CH. Pr. 2nd Ed. foe English. FnaxstdcK';; also the Rviilesof Coutt <27i»»v 3. The Court may make, and they are hereby required from time to tim.e to, make general rules and orders for carrying the purposes of t&e Chapters under this Title into sffect, and for regidffiting th* tiirues,. forms, aad mode of procedure, and generally the practice of the Court in. respect of the matters: to wMcb saeb Chapters relate, and^ so. fer as may be found expediemt, fo>r altering the course of proceeding in the same prescribed in.respect of the matters to which ttua Title relates, OT any of them, aitd from time to timse to rescind, alter,, add to,, and arctend the same, as the Judges of thie said Co»Uirt, or- ai majority of them, may deem, necessary. 4. The Court shaJl always be open,' {e\ and eArery matter, whether interloctrtory or oa the Iiearing of the cause, shall be decided lij any one of the Judges, with the same powers, as: heretofore exercised by the Master of the KoDs, {d) subject to> appeal ; and every appeal from the decimcwi of a Judge, or from any decisio-n of the Court of Chasneery made before tEiis Act comes iHto) operation, s-haB be made to the Court in Term {e) which shall have the same authority and j;uaisdiction tberein as the Chancellor has hitherto had cm. appeal. (c) The Court of Chaaeeiy -wan always open, 4 Inst. 81. The Legfsratnte pro- bably intended by express words to cloth* the " Supjiem* Co«it ia Ea»itv" ■with. Jhe same power. it ""• (rf) The M R. had the same powers as tlie M.K. ro EngfenJ, except as modfaed by Proymcial enactments, 1 Vnc. e. 8.. His resMenee was fixed at the cJac* whe.e the Court sat, 2 Vic. c. 37. Fredericton thus became the Westminster of this Pro- vince. As to what the powers »,»d.du.ties of the Maste. of ite Rolls were, vide ther Sooks 0/ Practwe referred^to in Note Ci) a,Ua. The iVI. K., before tlie passing of this Act, transacted m open Court at Fiedenctoa, with the Registrar present to take- mmutes a (id hie papers, all matter and things not othwwise provided for bv t .?"l? o"**- Pl^^'Pe of the Court, or by Statutes. See as to place of sitting f>yX\e M, ?,, jp B.u^l.,»d, Grant, 18, 34L THiaAet dioea aot expressly sr The duties of an Examiner are eon&ned to tbe examinatiiDn of witnesses, vide 1 Smithy Gh. Pr. 2», and 1 Grant, Cb. Pr. 28, also Rules of Court, cence at the hearing. Patching v Dubbins, Kay 1. And for the principles of refusing injunctions on original motion or on appeal, tor laches, and the effect ot olyection or protest— Se« G. W. Ry. v Oxford, &c. 3 D iNl. G. 341, 355, 360; and as to eflect of protest, A. G. « Sheffield & Co. «a327; Jaches applies on information as well as Bili, S. C. ; and an injunction was granted four months after a protest against building. Coles v Sims, Kay 56, 5 D. M. G. 1 • but see Child v Douglass, id 739. • j > , A party is bound by notice of an injunction granted though the writ is not issued, M'Neil V Garratt, C. & P. 98 ; Vansandau v Rose, 2 J. & W. 264 ; injunction does oot^^d a person not a party, Iveson v Harris, 7 Ves. 256 ; a person not a party to the suit, acting in contravention ot a decree (or an injunction of which he had notice, was held bound by it. Harvey r Montague, 1 Ver. 57, 122 j and a person having notice of an order is bound from the time it is pronounced ; or if present when the order is about to be pronounced, Osborne v Tennant, 14 Ves. 136; James V Downs, IS Ves. 524. Injunction takes eflect from the date of the order, Rattrav V Bishop, 3 Mad. 2-20. ' In a fit case the Court may still grant an injunction to stay action at law and trial without notice, but this discretion will be exercised with the greatest caution; and when the plaintiff did not apply till the eve of trial, and surprise was shewn, the order obtained ex parte was discharged with costs, Larmuth v Sinmins, V. C. S. 11 Feb. 1854, cited in Seton on decress, 877; Fisher « Baldwin, 1 W. R. 484. In pressing cases injunction may be applied lor ex parte, but when the defendant has once appeared, he must, as a general rule, be served, Langham v Great N. Ry, Co., 1 De. G. & Sm. 486; Perry v Weller, 3 Russ. 519 ; Collard v Cooper, 6 Mad. 190; Marasco v Boston, 2Ves. Sen., cited in note to 1 R.&M.321j except "where the threatened mischief is imminent and would be irremediable," 3 lir. O. G 477, ami Allard v Jon«s, 15 Ves. 605. A plaintiff's right to an injunction at the hearing is not necessarily prejudiced by his omitting to apply for it at an earlier, stage of cause, Davies v Marshall, 9 W. R. 368, but see observations of V. C. Wood, in Betts V Clifford, 1 J. &; H. 77. If plaintiff amend his bill, pending notice of motion for injunction, he waives his notice and must pay the costs occasioned by the same, Martin v Frost, 8 Sim. 199; Moneypenny v , I W. R. 99, London & Bl. Ry. Co. ■» Limehouse Board ot Works, 3 K. & J. 132. If after obtaining injunction plaintiff wishes to amend he usually obtains order without prejudice to the injunctjon. Under the old practice an order to amend the bill without prejudice to the injunction anight in the case, of special in-junctions be obtained of course. In the case of com- mon injunctions it was said in Pratt t> Archer, 1 Sim. & Stu. 433, (the report of which is corrected in the note to Pickering v Hanson, 2 Sim. 448,) a special appli- cation was necessary. But see contra Warburton v London & Bl. Ry Co., 2 Beav. 253, where the M. R. held that ■' an order to amend will not prejudice either the special or common injunction, and it would be so whether the words ' without preiodice' were inserted or not," (see too Davis v Davis, 2 Sim. 515; Brooks c Piirton, 1 Y. & C. C. C. 271.) Since the assimilation of the practice, it seems that in all cases where an order to amend has been obtained, the injunction, whether expressly saved or not, is unaffected tinkss the record be changed, Davis v Davis, ante; Atty. Gen, v Marsh, 16 Sim. 572 ; 13 Jur. 316. On motion to commit for breach of injunction, personal service must be sworn, Gooch V Marshall, 8 W. R. 400. If breach is not wilful, parties will not be com- mitted but ordered to pay costs, Ballen v Ovey, 16 Ves. 144, Leonard v Attweli, 17 Ves. 386; so where the injunction issued irregularly, Partington v Booth, 3 Mer. 149, Drevpry v Thacker, 3 Swans 546. A party enjoined from doing a certain act, who is afterwards present aiding and abetting it when done, acts in breach of the injunction, St. John's CcA. v Carter, 4 M. & C. 497. Though an injunction does not embrace " servants and agents," if an agent knowingly aids in the breach, he may be committed for contempt, L. Wellesiey i> E. Mornington, 11 Beav. 180; Jur. 1848,337; an order was made to commit the members of the Croydon Board of Health individually, for breach of injunction issued against the Board generally, tuHAerland v Richardsjlty M. R. 8 June, 1859. 7. If the defendant in any suit appear, (e) a copy of the Bill shall be served on his Solicitor, with a cppy of the interroga- tories (D), which shall then be filed as part of the plaintiff's 6 42 Bill; the interrogatories to be founded on the allegations therein contained, and numbered in the same manner as such allegations. If no demurrer, plea or answer be filed, (/^rSrsd a copy thereof served on the plaintiff's Solieito-r within one month from such service, orif a Bill be filed forwantof appear- ance, any Jt^dge at any monthly sitting may be moved on affidavit of the facts, and on fourteen days notice given to the Solicitor in case of appearance, and to the defendant {g) if within the jurisdiction, in case of no appearance, to take the said Bill jpro confesso, and the same shall be so or^e^^d without further order or proof, (h) unless the defendant pro- duce the certificate of the Clerk, that an appearance, or ans- wer, as the case may be, has been filed before motion made; and the Judge may, on cause shewn by affidavit, grant further time to put in an answer or demurrer, or f©r the defendant to appear and plead. (e) As to mode of appearance, see ante, p. 6. (/) In a suit where debt or damages only are sought, defendant may file with the ClerU of the- Court an offer in writing to consent to judgment by default for a certain sum to be entered of record, &c., 18 V. c. 9, post. (g") No notice now necessary when defendant has not pnt in an appearaiice, 26 Vic. o 16, post. (h) The Order itself to tatce the Bill pro confesso is quite distinct from the decret ol the CoBrtrUpon the state of facts by the order made evidence ; and by the English practice, as adppted by, this Court, see arete, p. 34, the plaintiff could not get any decree of the Court, either pro confesso or otherwise, without the appearance of a defendant, if residing wjthin the jurisdiction of the Court, and unless the. case could be brought within the provisions of 1 Wm. 4, o. 36, which directs an appearance to be entered for the defendant upon his being taken into custody and brought into Court, the. plaintiff would be remediless, and all the plaintiff could do would be to proceed by process of contempt to a sequestration, 1 Smith, Ch. Pr., 139, 152, 1 Daniel, 687, 1 Grant, Ch. 157. For proceedings alter appearance by defendant, vid id. This practice was modified aiid changed by. our Provincial Acts and Rules of Court, vide Rules, ante, pp 7, 14, 24, and Repealed Statutes, post. In cases of Bills filed lor discovery, and when the answer of the defendant alone can meet the requirements of the plaintiff's Bill, it would be useless to take the Bill pro confesso under this Section; and the only course left would be ffci life plaintiff to proceed hy process of contempt to sequestration, which proceeding would seem still open to a plaintiff in all cases as before the passing of this Act. Although this Section of the Act authorizes an order pro corifesso to be made, with out any appearance being entered at all, or without any process of contempt being taken against a defendant j it still leaves^pen the question oi* the time and mode of making a decree on the state of facts in the plaintiff's bill. In the repealed Sta- tutes,j705f, 48 Geo. 3, c 2, and 3 Wm. 4th, c 19, where provision was made to order the Bill to be taken jjro confesso, the following; words were used^ *' may order the plain- tift''s Bill to be taken. ^ro confesso, and make such decree thereon as shall be thought just and proper, and may thereupon issue process to compel," &c. In 2 Vic c. 35, s. 6, post, the words are " the Bill may be ordered to be taken against him as con- fessed, subject nevertheless to such regulations and restrictions as may be autho» rized and provided in that behalf by the Rules and Orders of the said Court," vide oMte, pp. 7, 14, 24, as to such Rules and Orders. It would appear as if the Legis- lature by expressly repealing the above mentioned Acts, and not including^j.ny similar provisions in this Act, either intended that the decree upon such order pro etmfesso should be obtained nnder the Knglish pitaetiCe as then prevaiiling, or; the practice constituted under the authority of the repealed Statutes, vide ante, p 34, and repealed Statutes, post, ■ ' The chancery Orders and Rules in England provides that do cause in which an Order is made that a Bill be taken pro confesso against a defendant shell be 43 ^!f!? ?■* J^^°, ^''T '^*5'^" '"'""'' "'« Order is made, but llie cause shall be sel thTheall%tr;of' Th^'l ?T I*"" ^° ^'^'"'^ «'' -ay appoint a special da/for alloblectilns in ,1. nTl ^"^^'"^^''^ '"''V ''I'P"" «' '^e hearing, and if he waives ^l^ob,ect>oa. lo the Order, may argue the case upon the mertts as stated in the Upon the liearing ofa caus«, when the Bill has been ordered to be taken pro confisso, s«ch decree shall be made as to the Court shall seem just, vide Morg 46L ^n^^' ?,vrr"'l?""'^n '^^f-^" TS*' " '.°^''* ^""^ '^^"'"' "'^■■'^°" ''^ «hall be thought V Ball, 4 Beav. 10 from which it appears the plaintiff cannot " take such decree as he can abide by So when a foreclosure suit was taken pro covfesso against defendant who did not appear at the hearing, it was held that the plaintiff was only entitled to the usual decree against them, and not to an immediate decree for abso- lute foreclosure. (Brierly v Ward, 20 L. J. Ch. 46,) confirming Stanley v Bond, ^^y- , V V^ ^^-^X" Bi-'erley, 3 Dr. & Wor..274, there cited, and Simmonds « Palles, a J. & L. 489 ; Loyd v Loyd, 2 Con. & L. 5P2 ; and where defendant made default but the plaintiff appieared to have no equity, the bili was dismissed. (bpeidall V Jarvis, Dick 632.) Morg. 462. Whatever power the Court nray have under this Section to proceed with the decree at once foi: foreclosure, on the motion to take the bill pro confesso, it is quite clear from the first Section of Sub. Cap. 5 of this Act, post, that it would not in foreclosure suits, without natice given to the opposite party, assess damages and decree a sale ; which notice might be given with that for the hearing. This is further provided for by see. 7 of 26 Vie. e. 18, post, wherein it is enacted that when a Bill for the ioreelosure of a mortgage is taken pro confesso for want of appearance, the Judge may .assess the amount due, &c. without notice to the defendaat, unless the defendant apply for reference to a Barrister. • 8. If the defendant proceed to answer the said Bili, which he may do whether required or not, {i) it shall be similar to the Form (E), with such variations as in each case may be necessary, and he may include therein any matter material to his defence. Documentary evidence shall only be referred to in the answer in the same manner as in the Bill, except it be necessary in order fully to answer the interrogatories, {k) No demurrer or objection shall be permitted for want of parties or of form ; but defects in any Bill, or in the form of any plea, may be submitted to any Judge, who may order an amendment if he deem it necessary, on such terms as to costs or otherwise as he may think just. (i) A ease of considerable importance as to voluntary answers has been lately decided by V. C. Stuart, with reference to the necessity of pleading the Statute of Limitations, ■where no answer is required. (Holding?? Barton, 1 Sm.& G-- App. xxv.) It would seem from this case that even under such circumstances the defence of the Statute cannot be pleaded at the Bar. But it may be raised by affidavit, (Snead V Green, 10 W. H. 36 ; 5 L. T. N. S. 302, M. K.. ; and see in the case of claims, Sneed v Sneed, 20 L. J. Oh. 630, and Lincoln v Wright, 4 De G. & J. 16 ; 5 Jur. N. S. 1142; 7 W. R. 330, where no answer having been put in, the defendant was allowed to plead the Statute of Frauds at the hearing.) Morg. 164. (/J) The answer, even under the new practice, must traverse with accuracy such parts of an interrogatory as are not intended to be admitted. (Patricks Black- well. 17 Jur. 803, where V. C. Wood said, that he did not see why under the new Orders the old form of answering should not be followed.) And every interrogatory founded on a specific averment must be specifically answered, Earp v. Lloyd, 4 K. &J. S8.) I^ut when substantial information has been given by the answer, though not technically, exceptions will be discouraged. (Reade v Woodroffe, 24 Beav. 421.) A son was interrogated, in respect of a purchase from his father, with whom he had been living, which was impeached by the Bill as fraudulent, and without con- sideration ; as to his own pecuniary resources, whence derived, and the amount, value and income thereof; and also out of what proceeds, &c. he had dbtained the means of paying the consideration money. To the first interrogatory he answered 44 tbat he had pecuniaFy resources of his own, partly arising from pronjerty of his own and partly his wife's, without stating the valu'e. To the second, that he had paid £4000 by money belonging to him, and at the time in his father's bands, and the remaining ;£7000 by a cheque on his banker. Upon the circumstances charged in the Bill ii was held that the answers to both interrogatories were insulKcient. — Newton v Dimes, 30 L. T. 30. In a suit to restrain the alleged infringement of a patent, the defendant is not bound to answer interrogatories assuming the infringement, nor to protect himself from giving such discovery by answer is he bound to put Id a plea. Delame v Dick- son, 3 K. & J. 388. But generally the rule that a defendant, if he answers at all, must answer fully, does not apply when the matter of discovery is immaterial. Wood -w Hitohings, 3 Bea V. 504 ; M arsh v Keith, 1 Drew. & Sm. 342 ; Read v Woodrofle, ante, Morg. 434. 9. The defendant in any suit may, after patting in a suffi- cient answer, [l) and within fourteen days after issue joined, without any bill of discovery, file interrogatories for the examination of the plaintiff on such points as shall arise out of the defendant's answer, and for the purpose of proving the same, and disproving the plaintiff's case, and deliver a copy thereof to the plaintiff's Solicitor, which shall be an- swered by the plaintiff in like manner and under the same rules of practice, as defendants are bound to answer plain- tiffs' Bill. (I) As to the meaning oif these words, see Lafone v Fatktand Islands Co., 2 K. & J. 270, (where it was held that they signify an answer to which no exceptions had been filed,) and Sibbald v Liowrie, cited in a note to aboVe case, where the Lords Justices of Appeal allowed interrogatories to be filed under a similar Section of 15 & 16 V . o. 86, although the six weeks allowed to the plaintiff for excepting liad not expired, subject to the plaintiffs right to move to take them off the file. With costs, if the answer was found insufficient. But seethe later case of Walker u Kennedy, 26 L. J. Cb. 397 ; 3 Jur. N. S. 481 ; 5 W. R. 396, where the Court held that although the defendant might proceed before the expiration of vhe time allowed to file excep- tions to his answer, the plaihtiff ought to be allowed time to look into the answer to see whether it were sufficient. When exceptions to an answer are neither al- lowed not disallowed, but simply ordered to stand over till thei hearing, the defend- ant cannot, without special permission, file interrogatories. (Merten v Haigh, 1 Jo. & H. 231 i 6 Jur. N. S. 1288 j 9 W. R. 12; 30 L. J. Ch. 33; 3 L. T. N. S. 368. When relief is required across bill will still be necessary. Morg. 114, note (y). 10. Exceptions (m) to the answer, ar to the plaintiff's answer to interrogatories filed as aforesaid, shall be sub- mitted to a Judge for determining as to their sufficiency, within fourteen days from the service thereof, and if not the answer shali be held good. (m) The pi^ctice in exceptions to an answer at the time of passing this Act was, that after the exceptions bad been filed with the Clerk, the Court, Upon motion or petition of course ordered a reference to a Master, vhose report might be ex- cepted to by either party, when the exceptions would be regularly set down for hearing, &o. This Act makes no provision as to the mode or manner of the sub- mission to a Jiidgfii, and the Act would seem to intend in. this, as welt as all other similar provisions, that the reference to a Judge was in fact a reference to the " Supreme Court in Equity,'' which Court could only proceed with " the like powers, jurisdiction, priocipalsof Equity Law and Rules of Practice," (ante, p. 33), as were formerly exercised by the Court of Chancery presided over by the Master of the Rolls, being by motion and heating in open Court after notice, when not expressly provided to the contrary, 11. Impertinence in any of the proceedings in any equily cause shall not be excepted to, but a Judge may, on appliea- 45 tion, direct the costs incurred thereby to be paid by the party introducing the same, (n) («) The same reasons apply to this Section as to the previous one. The Imp. Stat. 15 iSc 16 Vie. c. ^G, s. 17, from Avhich this seems to have been collated, pro- ceeds as follows : — ■' The practice of exceptincr to bills, answers and other proceed- ings in the said Court for impertinence, shall be and the same is hereby abolished ; provided always, that it shall be lawful for the Court to direct the costs, occasioned by any impertinent matter introduced into any proceedings in the said Oouit, to be paid by the party introducing the same, upon application being made to the Court for that purpose." 12. All answers, pleas, disclaimers, and examinations, shall he taken without commission or other formality than is re- quired in the swearing and filing of an affidavit ; and all returns to commissior.s or other documents shall be engrossed on paper, subscribed by the persons to whom directed, and delivered by the Solicitor to the Clerk, enclosed in a sealed envelope ; which may be opened by the Clerk, and used without proof of such signatures. 13. All answers, pleas, disclaimers, examinations, declara- tions, and acknowledgments, if made ortaken outof the juris- diction of the Court, may be taken and the oaths administered as in cases of affidavits, and may be returned in like manner as in the last preceding Section ; of which, and of the names subscribed to the same, judicial notice shall he taken. 14. After the cause shall be at issue, and before proceed- ing to proof or to hearing, any Judge, on ten days notice by either party, shall determine what allegations on both sides are admitted by the pleadings, and shall direct the proof to take place on the allegations not admitted; and if the evidence be taken in the usual manner before an examiner, the time for that purpose shall commence to run from such direction, (o) ( o ) This Section has been entirely repealed, and that part of the following one which re ers to the hearing, amended by Rule of Trinity Term, 856, ante pp. m 32 See also 26 V. c. 16, s. 6, post, as to hearing of a cause and taking vtva. voce evidence at one of the momhly Sittings, or at any Circuit Court after tssue by replication. 15. All cases in Equity may, after issue, and at the time when the Judge shall settle the points admitted or denied by the pleadings, be ordered to be heard at such time as may be appointed either by evidence taken viva voce in open Court before the Judge at one of the monthly sittings, or at any Circuit Court where the majority of the witnesses reside, if the parties desire the same, or the Judge shall so order ; and if at any Circuit Court, such causes shall be entered at the foot af the Common Law cases, and heard after the Jury 40 is discharged, the Clerk of the Circuits attending himself or by deputy. The Judge may reserve his decision after full hearing of the case, to be delivered at such time as he shall then or afterwards appoint. SubpcEnas for attendance of witnesses in such causes, may be issued by the Solicitors of the parties, and shall be served and obeyed as heretofore iu the Court of Chancery, with such alterations in the form as may be required. 16, "When evidence shall be taken before an examiner, or plaintiff proceeds after issue on evidence furnished by the answer, or the defendant on evidence furnished by the plain- tiff's Bill, or his answer to defendant's interrogatories, it shall not be necessary to move for publication ; but on four- teen days notice by either party, the cause may be set down for hearing at Fredericton, and the evidence may be used, without delivering out copies thereof at such hearing, (p) (p) This Section repealed and re-enacted, leaving out only that part referring to .plaintifl's bill. 26 V. c. 16, s. 3. 17. Any Judge shall on the application of eitlier of the parties in any suit, and on good cause shewn, make an order for the production upon oath ( g' ) of such of the documents in their possession or power relating to the matters in ques- tion in the suit, and deal with the same when produced, as shall appear just; but demand shall first be made of copies of the same or of portions thereof, and be shewn to have been refused. ( j) This Section seems to have been collated from ss. IB & 20 of Imp. Act 15 & 16 V. c. 86, and has reference to one of the objects virhich by 15 & 16 V. c. 80, s. 36, are expressly made determinable at Chambers. Under the old practice, production of documents was obtained on .special motion in Court with notice grounded on ad- missions in defendant's answer. Wigram on Discovery, 200, 2nd Ed.; 1 Grant, C^. Pr. 204 j and the question again presents itself here as to the intention of the Legi:i- lature in using the term Judge; if they intended the " Supreme Court in Equity," represented by any one of the Judges, and sitting in open Court, the proceedings would necessarily be' governed by the same practice as guided the M. R. in the Court of Chancery ; but if on the other hand they intended a Judge sitting at Cham- bers, or m any part of .he Province where he might be, then would arise a diffi- culty as to the mode of proceeding, no course having been pointed out by the Act Itself; or any Rules or Orders made by the Court under sec. 3, cap. 1, ante 34. On either construction pf this Section, the following cases, collated from Morgan 1 u°"j ^'" ^^ '"'""* useful. The plaintiff, without filing any affidavit, may com- pel the defendant (or vice versa) to make an affidavit, the form of which has been settled by the Court, (see Form I at the end of this Chapter) as to the documents in his possession ; Rochdale Canal Co. v King, 15 Beav. 81 ; nor will delay in mak- ing his application, (9 Hare, App, xix, mofe), nor the fact that the defendant has answered the plaintiff's interrogatories as to documents, and that his answer has not been excepted to, deprive him of his right. Manby v Bewicke, 27 h. T. 55 : Quinn V Ratclilfe, 9 W. R. 65; 6Jur. N. S. 132^7; 3L. T. N.S. 313. ■ ' In a proper case the Court will make the order upon the [admission in the de- fendant s answer or affidavit ; but not upon the oath of any other person other than the defendant himself; Lamb v Orton, 1 Drew 414 ; 22 L J. Oh. 713.; where plain- tifi inoved on his own affidavit that the document was in the possession of the de- fendant, but which was denied by the defendant's answer, the Court refused the d- 3 47 motion. VA. In Wing: v Harvey, 1 Sm. & Gif. App. x, and 17 Jur. 481, the Gov, ^,?fr- I r ™°''?° by the plaintifTfor the production of documents, which the plaii tiff s Solicitor m his allidavit alleged to be ofiniportance to the cause. • -? P''*"i"f.« "ght to production of documents rests on the same grounds as I right to a discovery generally; Swinborne v Nelson, 16 Beav. 416 ; Cleog v Ei mondson 22 Beav. 125 137 ; but see Quinn v Ratcliffe, ante, and Rumbold v Fc ,- teath, J li. & J. 44 The rule theretore as to privileged documents is unaffected by this bection. See Rajah of Coorg v East In. Co. 25 L. J. Ch. 345: 2 Jur N 3 ik^ ; Devnyncs v Robinson, 20 Beav. 42 ; Lafone v Falkland Is. Co., 27 L. J. Ch. 25; Betts v Menzies, 26 L. J. Ch. 52g. Nor is the defendant obliged to produ<;e documents in his possession relating exclusively to his own title. Sutherland v Sutherland, 17 deav. 209 ; Cf. Clegg v Ed mondson, ante; Lind v Isle of Wig it Fer. Co. S W. R. 540 ; 2 L. T. N. S. 503 ; Bishop of Winchester v Bowker, 9 W. J I. 404 ; Felkin v Lord Herbert, 9 W. R. 7-56; Howard v Robinson, 4 Drew. 522; tl e principle of which decision seems to be that a party must not only shew that tl e documents in question relate to his title, but that they do not relate to the plaintiff's. Under old practice, see Adams v Fisher, 3 M. & Cr. 526; Lancaster v Evors, 1 Phil. 349; Wig. on Dis. 91. Though the defendant may not be compellable io produce sueh documents, he cannot in any case, it seems, decline to make tl e common affidavit as to documents. Rumbold v Forteath, ante. So when the d j- fendant swore that he had no documents in his possession but such entries ; a might be contained in the books of his firm, which he objected to produce, stating that they were only in his possession jointly with another who was not a party (o the suit, the Court required him to file an affidavit shewing the number and parti- culars of such documents. Lazarus vMozley. 5 Jur. N. S. 1119; 35 L. T. 3. Nc r will the Court allow the defendant to decide for himself as to the relevancy of the documents in question, at least if a pritna facie case of relevancy is made out. Caton v Lewis. 22 L. J. Ch. 946 ; and see Bowes v Fernie, 3 M. & C "332; Mansell V Feeney, 9 W. R. 610; 4 L. T. N. S. 437. Thus, when the defendant sealed up part of the documents ordered to be produced, denying the materiality of such parts on oath, the Court ordered production of the passages concealed. Caton v Lewis, ante. In a similar case the Court inspected the sealed passages for itself Lafone V Falkland Is. Co. 27 L. J. Ch. 25. A plaintiff, as a general rule, has a right to in- spect all documents in the defendant's possession, which will assist his case ; and the right is extended even to mortgagors ; though generally a mortgagee is not compellable to produce his deed except upon payment of principal, interest, and costs. Howard v Robinson, ante; 5 Jur. N. S. 136 ; 28 L. J. Ch. 671 ; 7 W. R. 223. But a prior mortgagee has no right to see the deed of a subsequent mortgagee, ih. Letters passing between co-defendants are not privileged. Betts v. IMenzies, ante. The tendency of later decisions has been to treat all confidential communications bet"ween a Solicitor and his client as privileged, even thongh no dispute had arisen at the time they were written. Ford v DePoutes, 7 W. K. 299, IVI. R. ; Lawrence T Campbell, 4 Drew, 485 ; 7 W. R. 299 ; compare the earlier case of Walsingham V Goodricke, 3 Hare. 122, and the authorities there cited. But see Marsh v Keith, 1 Drew, 4, S. 342 ; 9W.R.115; Bluck v Galsworthy, 2 Gif 243 ; Telford v Ruskin, 1 Drew, & Sm. 143. The privilege is confined to communications made to the So!- licitor by the client; Thomas v Rawlins, 5 Jur. N. S. 667. The Solicitor cannot insist upon the privilege if the client does not object; Re Cameron's C. Ry. Co., 26 Beav. 1. As to Agents, see Steele v Stewart, 1 Ph. 471; Carpmael v Powis. id'a^l. An arbitrator cannot be compelled to produce papers drawn up for his own guid- ance ; Ponsford v Swayne, 4 L. T. N. S. 15 ; 1 Jo. & H. 33. But see the case a^ to the privileges of arbitrators generally. The Court refused to order production of documents pawned before the institution of the suit; Lidd v Norton, Kay, Appi xi ; 23 L. J. Ch. 169 ; and see Re Williams, 7 Jur. N. S 323 ; North v Huber, 7 Jur. N. S 767, But a Solicitor's lien is no defence against production ; Hope v Liddle, 20 Beav. 438 ; s o on appeal, 7 DeG. M & G. 331; 24 L. J. Ch 691 ; 1 Jur, N. S, 665; Gaskell v Chambers, 28 L J Ch 388; but see Re Grepson, 26 Beav. 87; noi undertaking entered into with another person not to part with them; Penkethmnr V White, 2 W. R 380. A plaintiff cannot enforce discovery of documents in the possession of defendant's agent, being the private property of the agent; Colyei v Colver 9 W. R 452; 4 L T N S. 134. The later cases on the production of do- cuments are Gandee v Stansfield, 4 DeG. & J. 1 ; 7 W. R. 321 ; Wynne v Humber stone, 27 Beav. 421; 23 L J Ch 931; on appeal, 82 L T. 306; Cf Greenwood v Greenwood, 6 W. R. 1 19 ; Peile v Stoddart, 1 M. & G. 192 ; De la Rue v Dickinson 3 J & K 388 ; Bates v Christs Cd 26 L J. Ch. 449 ; Hampson v Hampson, id 612, It was doubted whether the Imperial Act applied to a Corporation answering under Seal ; Law v Indisputable Life Policy Co , 10 Hare, xx ; but it is now settled f-at where production of documents is required from a Company, the Secretary or some other oflicer shall make an affidavit The Clerk of a Company making aftda- vit that the documents were in the custody of the' Warden and Court of Assistants, and that without their leave he had not access to them, but not stating that he had 48 aslted leave and been refused, had to make a further affidavit. A. G. v Mercer's Cd)., 9 W. R. 83 ; 3 L. T N. S 438, V. C W ; see also Ranger v Great W. Ry. Co , 4 DeG. 55 J. 74 ; 28 L. J. Cb. 741 ; 5 Jur N. S. 1191. It had been previously held that documents could not be obtained from the Secretary of a Oompany unless h( was made a defendant. See also Chaffers v Woolner, 30 L. T. 126 ; and Gaskell V Chambers, 28 L. J Ch. 38-< ; 26 Beav. 303. To obtain production of a document the applicant must shew that he has an in- terest in it, i e. that he requires its production for the legitimate purposes of the lil igation in which he is engaged with the adverse party ; and that it is or may be evidence which may prove, or lead or assist him to prove his case ; and these points must be admitted by the answer (or affidavit) of the other party. A. G v Thompson, 8 Hare, 106. Where the defendants admitted that they had had an interest under a ."iettlement, bn alleged that by subsequent deeds that interest had determined, they had to p 'oduce the settlement. Bugden v South, Jur {.57)78) The order to produce is in the form that the plaintiff, his Solicitor, or Agent, may hi at liberty to inspect and prove the documents so produced, and to take copies thereof, and abstracts or extracts therefrom as he shall be advised, at his own ex- p3nse. Dan Ch Pr. 3rd Ed 963 The common order does not authorize inspection by a non-professional relation of the plaintiff, although alleged to be the only person conversant with the accounts to be inspected; and the Court in such a case refused to make a special order aluthorizing inspection by such person, Summerfield v Pritchard, 17 Beav. 9; 17 Jiur. 361. In Draper v The Man Shef & Lin Ry. Co , 6 W. E!. 117; 6 Jur. N. S- 1239 ; 30 L J. Ch. 95 ; 3 L T. N. S. 402, however, V. C. Stuart held that tlie usual order for inspection authorized ths employment of a professional accountant as ^gent; but on the case being brought before the Lqrds Justices, 9 W. R. 215; 30 iL J Ch. 236 ; 7 Jur. N S 86, by way of appeal from an order to commit tile de- fendant's Solicitor for refusal to allovir inspection by the accountant, it. was held that the accountant's connection with a rival company was in that particular case a per- sonal disqualification for the office of agent to inspect Lord Justice Turner added that, though it might not be necessary that an agent for the purposes of inspection ^hoiild be a legal agent, still he must be a genei-al agent, and not an agent appointed for the special purposes of the particular case. In the argument, the unreportjed case of Coleman v West Hartlepool Harbour Co., Aug 1, I860, V. G. W. was re- ferred to In a more recent case of Bonnardet v Taylor, 1 J. & H. 3S3; 3 L T. N. 8 884 ; 9 W. R. 452 ; on a special application, and a special case being made out for it, V. C. Wood allowed an aci'Ountant, who had been named for that purpose, and to whose appointment no reasonable, objection could be urged, to inspect the documents The Section does not authorize inspection by a co-defendant : Bartleit y Bartlett, 1 Drew, 233; nor as a general rule by witneeses ; Groves v Groves, 2 p. R 36 ; Kay, App. xix ; 23 L J Ch. 199 When the plaintifl* obtains an order for production and inspection of documents, he does so upon an implied undertaking not to make public any information so obtained, or to communicate such information to persons not parties to the suit ; and the Court would grant an injunction to restrain him from so doing. Williams V Prince of Wales Ass. Co, 23 Beav 338; 3 Jur, N. S. 55. See (oo Reynolds v Godlee, 4 K. & J. 88, and Enthoven v Cobb, 5 DeG & Sm. 595 ; on appeal, 2 DeG. M. &G. 632 As soon as the purposes of discovery are answered they will be ordered to be re- delivered to the producing party ; Dunn V Dunn, 3 Drew, 17 ; IS Jur. 1068; affirmed on appeal, 7 DeG. M. ic 6. 635; 1 Jur. N. S. 122. A defendant cannot compel plaintiff to produce a document produced to him by another defendant in the absence of the latter ; Reynolds v Godlee, atite. 18. Whenever an issue may be found necessary to md the Judge on the hearing, the same may be ordered by him, and shall be tried, and b© subject to a new trial, in the ordi- nary manner in the Supreme Court. If it he necessary for the purposes of an injupction to have the legal right of any party tried forthwith, the application for the injunction shall be suspended, and the Judge may make an order requiring the Sheriff to summon a Jury before him or some other Judge at a time and place therein to be named, and such Jury shall be summoned by the said sheriff, and shall attend 49 aud try tbe said issue, and witnesses may be subpoenaed, and all other necessary things maybe done in the same man- ner, and under the like penalties and privileges as in cases of ordinary civil trials by Jury, with the right to a new trial as in other cases. If the legal right or title of the party seeking relief can be established under the evidence, or if a case be required to be stated, for the opinion of the Court, without the aid of a Jury, the Judge may determine such right or title, or the point arising for such case, instead of stating the same. And whenever any issue, or question of law, may be determined according to the practice, the Judge shall proceed to the hearing of the said injunction, or the cause, as the ease may be, and decree accordingly. In any of these cases the Clerk or his deputy shall attend. 19. ISo defendant in any Equity suit shall be permitted to object for want of parties, in any case to which the following Eules extend : — Rule 1. — Any residuary legatee or next of kin may, with- out including the remaining residuary legatees, or next of kin, have a decree for the administration of the personal estate of a deceased person. Eule 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 decree for the aidministration of a deceased person. Rule 3. — Any residuary devisee or heir may, without in- cluding any co-residuary devisee, or co-heir, have the like decree, (r) Rule 4. — Any one of several persons for whom a trust is held under any deed or instrument may, without including any other of such persons, have a decree for the execution of the trusts of the deed or instrument, (s) Rule 5.— In all cases of suits for the protection of property 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 tbe administration of the estate, or the execution of trusts. 7 60 Kale 7. — In all the above cases the Judge, if he shall see fit, may require any other person to be made a party to the suitj.and may give the., condijct of the. suit to such person aa he may deem propec,! and may make such order, in any par- ticular case, as he may deem just, for placing the defendant on the record on the same footing in regard to casta as other parties having; a common interest with him in the matters in question. Kule 8.; — In all the aboye cases the persons who, according to the practice of the Court, would be necessary parties to the suit, shall be served with notice of the decree, (< ) and after such notice they shall be bound by the proceedings in the same manner! as if they had been originally made parties to the suit, and they may by an order of course have liberty to attend (m) the proceeding under the decree ; and any party so served may within /three months from such service apply to a Judge to add to the decree, (y) Rule ,9. — In all suits concerning real or personal estate (w) vested in- tru8tee3i{2;) under a will, settlement, or atherwise, such trugtees shall representithepersons 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 bepeficially inteFC!st.ed in such personal estate; awJ in such cages it ghall nptbepecessary to naa^^the per- ^pn.s beneficially interested u^der ^h^ , ts^ftts p3,rties to the suit with the trustees or executors ; but l^be Judge may, upon cpnsijd^jj^tipii o;f,tl;ip,ma|:tefs on ,tli,e, hea,ring, if^esh^U so t^ii^k fit, order, sjjpl^ persons, or ^,py qf them, to be, made^ " parties, (y) •(p) A. suit may be pTpojeeded witjv witbput m^kiijg thje real representatives of residuary devisees who have died abroad before the institution of the suit, parties to the spit, altliough the devisees themselves havje, thr,9\igh ignor^i^ce ,of theii; death, been so named. Bat€man v Cooke, I W. R. 242. (^JSoone cestui gue'trust may, -without serving his co-oestui que trust, have a decree for the appointment of new trustees. Jones v JuBjeS, 9 Hare, app. Uxx It seems too that the rule applies to a Bill to make a trustee responsible for a breach oftrijst, M'Lqody AijDesley, 16Bea,v.600; 22 L. ,J. Ch. 637 ; nJuL608,- but see Jesse V Bennett, 6 DeG. M. & G. 355; 26 L. J. Ch. 63. In a case before the Court however; -Brii^etv Hames, 1 Coll. 72, it vfas held by Yi C. Knight Bruce,' that a trustee might file, a bill againft one of several cestuis gtie trustslo recover the trust securities, without making tlie other cestuis- que trusts parties. (*) The rule as to serving parties with notice of the decree applies to infants j Clarke v Clarke, 20 L. T. 88 ; 1 W. R. 48; and to parties out of the jurisdiction ; Chalmers V Laurie, 10 Hare, app. xxviii ; 1 W.R.JaS5; . ' (m) See Lewis v Gloiyps, ).0 Hat^e, app. Ixii, and note, af to liberty to attend. ( V ) When a party served with notice of a decree feels himself aggfieyed.thereby,' he should move tlie Court on notice for leave to file a bill in the nature of a BiU'of Review. Kidd v Cheyne, 18 Jur. 348. Service of notice of a decree for: sa)e in. a suit does not make the decree binding on a judgment cteditol-, 'who is liot a party 61 to the canse. Knight v Pocock, 24 Beav. 436 ; 27 L. J. Ch. 297 ; 4 Jur. N. S. 187 ; 30 L. T. 126; see also as to tkis rule geherally, Doody v Higgius, 9 Hare, ann. xxxii ; 2 Jar. N. S. 1068. ' ] ^'^ («■) The operation of this rule is not confined to administration estates. Fqwler V Bayldon, 9 Hare, Ixxviii ; comp. M'Leod v Anntesley, «n(e. In applying it gene- rally, however, tke Court will exercise the discretion given by the concluding clause. Thus in Tudor v Morris, 22 L. J. Ch!, 1051 ; ,1 W. R. 426, it was held that the trustees of mortgaged property did not suffieiiehitly represtettt »heir te^uiatque trusts in a suit for foreclosure. Comp. Cropper v Mellersh, 24 L. J. Ch. 430, where it was observed by V. C. Stuart, that the Court would only HoM the 86611011*10 ap- ply to foreclosure suit« in extraordinary cases. These observations were com- mented upon with disapprobation by V. G. Wood, iii Wiikins v Reeves, 3 W. R. 305. And in a similar suit, Goldamitt v Sloneheaver, 9 Hare, xxkvii ; 22 L. J. Ch, 109 ; 17 Jur. l99, it was held that infant cestuis jj«s trusts were sufficiently repre- sented by their trustees, allhou^h the rule was not extended to adult cestuis que trusts, except as to the shares of childreh entitled in remainder, vested in the trus- tees under a settlement. So also where an equity 6< redemption was granted by deed to trustees upon trust for certain parties, some of whom were infantSj and the mortgagee filed a bill for foreciosarfc aguhd due to the plaintiff, it appeared that, owing tp circumstances, the interests of some of the persons riipresented by the plafntiffwerfe different from his, it^as held, that the case was within the 49th'sectionof l&fc 16 Vic c. 8p (of whichthis section is virtually' a copy-,) and that the plaintiff might treat the absent plaintifis as defendants, and deter- mijne whether a deqree should be made. , Clement v BoWdsy IDrew, 684,694; 22 Lr. J. Ch. 1022; 1 W. R.'442. In this case the Court directed the plaintiffs having con- flicting interests to be servfed' with, and to have liberty to attend the proceedings on taking the accounts directed ; iS. See too, Beechingv tloyd, 3 Drew, 227j Evan;s v Coventry, id. 75 ; o"n a'ppeal, 5 DeG. M. & G. 911 ;' Stupart v Arrowsiriith, 3 Siil. & G. 176; .2 Jut. Nf S. 153. The section is imperative,, Clement VjEowes^ ante. But see Barton v Barton, 3 K. &: J. 512. See as to plaintiff filling two cha- racters ; Carter v Saridei's,* 23 L. J. Ch..679 ; also as to misjoinder since thfe Act, \V;illiams V Pag«, 4 Jur, N. S. 102. W'here a bill was tiled by a husbknd and wife to set aside an appointment made by the wife, on the ground that her execution was fraudulently obtaihed, this js not merely a case of misjoinder "which can be cured' tinder this section, and the bill must beapiended by making it tjiebill of the wife by her next friend. Hope.v Fox, 1 J. (te H.'.456 ; 7 Jur. N.S. 1S6 ; Y. C. Wigram. , ' 25. Any Judge may a4juiU. see Plcmbe y,onh,% De G. & Sm. 73 ; Smith v Hay, 30 L. J. Ch- 45, H. L, ; Bothenjjey v Squire, 3 Dre-w 517; Dent v Turpin, 2 J. & H. 139. (i-) There would appear \o be some difficulty in carrying out su^ch a provision in the absence of more particular directions either in tjie A«t. °', ^y »9™B '"'^ °/ Court in reference to it ; there seems to be no similar provision in the English Acts. 56 27. Every affidavit to be used in the said Court shall be divided into paragraphs, and every paragraph shall be num- bered consecutively, and as nearly as may be confined to a distinct portion of the subject, and shall in every case be filed after being used in the Court, Copies of all affidavits and other writings used on any motion or petition, except in cases of injunction or petitions ex ■parte., shall be served on the op- posite party six days before being used, those in answer, three days, and any in reply, which shall be confined to new matter alleged in such answer, one day, beyond which none shall be allowed. 28. No suit (A:) in the said Court shall be open to the ob- jection that a merely declaratory decree or order is sought thereby (Z), and it shall be lawful for the Judge to make binding declarations of right, without granting cousequential relief, (m) {i) A petition under the Trustees' Relief Act is within the 50th sec. of English Act, (of which this is almost a verbatim copy.) Re. Walker, 16 Jur. 1154; but see Sharshaw v Gibbs, IS Jur. 330 ; Kay, 333. ( i ) This could not be done ttnder the old law, Grove v Bastard, 2 Phjl. 6!22. ( m ) When a declaration is asked, and also an injunction, such ipjunotioa is consequential rehef; Marsh v Keith, 1 Drew. & Sm. 342; 9 W. R. 115. The tendency of the later decisions on this Section has been considerably to restrict its operation. Thus, notwithstanding the earlier cases of Fletcher v Rogers, 10 Hare, xiii ; 1 W. R. 125 ; and Wright v King, 2 W; R. 405 j it was held by Lord Justice Turner, (Lord Justice Knight Bruce abstaining from giving an opinion,) that it gave the Court no power to declare future rights ; Lady Langdale v Briggs, 26L. J. Ch. 27, 45; 2 Jur. N. S. 9S2; vide the case in the Court below,. 3 Sm. & G. 245 ; 25 L. J. Ch. 100 ; comp. Burt v Short, 1 W. R. 145 ; Greenwood v Sutherland, 10 Hare, xii ; and Garlick v Lawson, ib. 17 ; where the Court in a special case refused to make a binding declaration under this Section, as to the interests of parties entitled in reversion. See also Gosling v Gosling, 1 Jo. 265; Fyfe v Ar- buthnot, 1 DeG. & J. 406; Tell v Cade, 10 W. R. 38. It seems that Fletcher v Rogers cannot now be relied on as an authority. Nor will the Section entitle a party to a prospective declaration, guarding against a claim which may never be made. Jackson v Towiiley, 1 Drew, 617'; 22 L.J. Oh. 949; 17 Jur. 643. .. 29. No suit shall abate where the cause of action shall survive by, the death of one or more pf the plaintiffs, or defendants; but, upon suggestion of such death, to be en- tered by the Solicitor on the Bill filed, the suit shall be allowed to proceed without further change, in favour of or against the surviving party, as the case may be; and on the death of one or more plaintiffs or defendants in any suit, where the cause of action shall not survive, it shall only abate as to the person so dying. 30. Whenever it may be necessary to revive a suit by or against the representatives of a deceased party, or on trans- mission of interest or liability (n), no Bill of revivor, or sup- 57 plomenlal Bill shall be used, but the Judge may, ou motion or petition, order (o) that the same stand revived on such terms as may be just. ( K ) TWs and the previous Section form a partial re-enactment of sec. 52, of 15 & 16 yic c. 86; as to tlie entire provisions of that section, and the decisions thereunder; see Morgan. 209. The Section applies to suits commenced before the Act came into opera- tion ; Lowes V Lowes, 16 Jiir. 968; 1 W. R. 14; Cf. Jones v Woods, 20 L. T. 50 ; and even to cases where the abatement took place before that period, ib. A special case is within tlie Section; Wilson vWhatelJ, lJo.&H.531; comp. Ainsworth v Almau, 14 Beav. 597. The English Act distinguishes between "a change of interest" and "a transmission of interest;" Qite. — Whether the words of the above Section would includ-e both ? A devise by a defelidant s«ems to be a ■" transmission of interest" within the Section. " Lowe v Watson, 1 Sm. & G. 123. In the later case of Dendy V Dendy, 5 W. R. 221; 28 L. T. 262; cited and approved by V. C. K. in Williams v Williams, 9 W. E. 266, Lowe v Watson was cited as an autho- rity for enabling tie devisee of a sole plaintiff to revive under this Section. V. C. W. however, declined to make the order in that case, distinguishing it from Lowe v Watson, where the transmission of interest was by a defend- ant. But in Gilchrist v Tomlinson, 8 W. R. 466 ; 6 Jur. N. S. 532 ; 2 L. T. N. S. 350, V. C. S. made an order of revivor under this Section on the death of a sole plaintiff, and on the motion of his devisee. In Jackson v Ward, 1 Gif. 30 ; 7 W. R. 426, the same Judge, following Morrett v Walton, 2 W. R. 544, made an order for revivor on the death of a sole plaintiff after decree ; and in Flockton v Slee, 5 Jur. N. S. 422, 1090; 7 W. R. 393, the M. R. made the same order on the application of the personal representative of a sole plaintiff who died before decree. See, however, Dobson v Faithwaite, 10 W. R. 29. In HaU v Cline, 20 Beav. 577, the M. E. permitted a plaintiff whose co-plaintiff, a mortgagee, had died before decree, to carry on the proceed- ings against the devisees and executors of the latter. See generally as to carrying on proceedings in a creditor's suit. Brown v Lake, 2 Coll. 620 ; Elliott V Ince, 27 L. J. Ch. 51. When a plaintiff in a foreclosure suit had, after decree, assigned over aU his interest in the suit, an order to revive was made under this Section, but the assignee was ordered to pay the costs of reviving. James v Hardmg, 24 L. J. Ch. 749 ; 3 W. E. 474. It seems, however, the Section does not ap- ply where a co-plaintiff is placed in such a position that he ought to be a de- fendant. Jervoise v Clarke, 2 W. R. 337. So again, when one of two cre- ditors plaintiffs in a creditor's administration suit, upon an abatement by the death of an executor of the testator, obtained letters of admlm^stration de bonis non to the testator's estate, it was held that a suit could not be revived against him under this Section. Tate or Yate, v Leithead or Lighthead, 9 Hare, app. U; 16 Jur. 964; 23 L. J. Oh. 9; 1 W. E. 4; 20 L. T. 59; but see CresweU v Bateman, 6 W. R. 220. Where, however, there is a sole Plamtiff and a sole defendant, and the defendant dies, having appointed the plaintiff his executor, the latter may obtain an order to revive the smt agamst the persons beneficiaUy interested, who have been summoned to attend the pro- ceedin<'s in Chambers. Pedder v Pedder, 8 W. E. 16 ; o Jur. N. S. 1145 , 29 LTch 64; but see Dobson v Faithwaite, 10 W. E 29. But the Section does not apply when the interest of the parties has wholly determined. Watts V Watts, Johns 631. It seems that where the relief sough is larger than what would have formerly been given under the «f ■^'^1 «^PPl^,'?ff,^ ,f ^,=^^„?' Cas to which see Mitf. on Pi. p. 85, et seqq.) a supplemental bd is sti requi- site But the mere fa^t that under the old practice an origmal bid in the nature of a supplemental bill would have been necessary, does not exclude the operation of the Section. Creswell v Bateman, 6 W. E. 220 see ho w- Iver^™!^ V Williams, ante, where a contrary doctrine was laid down^ The mere existence, too, of special questions, ex. gr. whether it wdl be for ttie benefit TaSnt to continue an abated suit, though it may be a reason for nof maMns the order as of course, does not, it would seem, render a biU fndi^nen^aWe^ Phippenv Brown, 1 Jur. N. S. 698 ; Notley v Palmer, 3 W. E. fnT-B^^ettv White 3 W. R. 626; Goodall v Skerratt, 1 Sm. & G. app. vii. 8 In Dean amd Chapter of Ely v Edwards, 22 L. J. Ch. 629,. it was said "the Court would not, in making an order under this Section to revive a suit against the executors of a deceased defendant, order them to admit assets, or in default, direct an account of their testator's estate to be taken." This case has since been overruled by Edwards v Batley, 19 Beav. 457 ; 23 L. J. Ch. 872, where it was said that m srach a case no bill of revivor or supple- ment is necessary. And an order similar to that refused in Dean and Ely v Edwards, was made in Cartwright v Shepheard, 30 Beav. 122. And where the common order might have been obtained under this Section no decree will in future be made o^n a bill of supplement and revivor. Edwards v Bat- ley, ante. Thes^ however, were administratiom suits, and it seems the same rule will not apply to suits for speeifie performance. CoUard v Eoe, 1 Gif. 311 ; 8 W. R. 39 ; 35 L. T. 87 ; 5 Jur. N. S. 1242, V. C. S. Whenever a defendant dies before appearance the suit cannot be revived against his representatives. Bland v Davidson, 21 Beav. 312 ; Williams v Jackson, 7 W. E. 104 ; 5 Jur. N. S. 264 ; see old practice. Crowfoot v Mander, 9 Sim. 396. When a defendant dies after hearing, and before decree, an order of course for revivor against his representative may be obtained. Petre v Petre, 1 W. E. 362 ; 21 L. T. 136. When the cause becomes !jba,ted between the hearing and delivery of judgment, the decree may nevertheless be drawn up. Col- linson v Lister, 20 Beav. 365 ; Belsham v Percival, 8 Hare, 157. An order to revive was made against the representatives of a defendant who demurred, and died ten years after the demurrer had been allowed, the plaintiff having liberty to amend. Decks v Stanhope, 24 L. J. Ch. 580 ; 1 Jur. N. S. 413. It was stated that there can be no revivor after lapse of twenty years. Bland v Davison, ante; but see centra, Alsop v Bell, 24 Beav. 451. As St general rule there earn be no revivor for costs. Morgan v Scudamore, 2 Ves. jun. 313 ; Andrews v Lockwood, 15 Sim. 153 j 2 Ph. 39a ( ) The common order to revive is obtained as of course ,- Boufil v Pur- chas, 16 Jur. 965 ; 1 W. E. 12 ; but where there are special circumstances; arising out of the case, a special application to the Court is necessary. Mar- tin V Hadlow, 9 Hare, lii ; Phippen v Brown, 1 Jur. N. S. 698 ;. Goodall v Skerratt, 1 Sm. & G. app. vii. If obtained ex parte it is of course liable to be objected to by any parties to the suit;, Jackson y Ward, 1 Glf. 30 ; 7 W. E. 426 ; and if obtained on a false statement of facts, will be discharged as irregular ; Brignall v Whitehead, 5 L. T. N. S. 301 ; 10 W. E. 69. In reference to service of the order to I'evive, and appearance thereto, under the English Act, but as to which the above Sections are silent, see Morgan, 214. Executors against whom an order had been obtained under this Section, were held entitled to answer ; Martin v PumeU, 3 W. E. S95 ; and it seems interrogatories may be filed on such an order. Anon. 23 L. T. 61. A suit revived under this Statute is to be considered a new suit so far as to entitle the defendant to move that the plaintiff (if resident out of the jurisdiction) do give security for costs, Jackson v Davenport,. 9 W, E. 356. 31. (p) Any person claiming to be a creditor, or the next of kin, or interested in the will of a deceased person, (q) may obtain as of course a Summons (r) (F) from any Judge, re- quiring the executor of such deceased person to shew cause why an order should not be granted for the administration of the personal estate, or the real estate, when the whole thereof is by devise vested in trustees for sale and for rpeeipt of the rents and produce thereof; and upon affidavit of the due service of such summons, or on appearance of such ex- ecutor, and affidavit of such other matters (if any) as such Judge shall require, he may make the usual order for the administration of the estate, with such variations as may be necessary, (s) which order on being filed with the Clerk, 59 along with the smmmons and affidavits, shall hav« the force of a decree to the like ejffect made oxi the hearing of a cause betw€eQ the parties; and. the same may be granted to such one or more of the claimants, or classes of claimants, in case of application by different persons or classes, and upon such terms as the Judge shall think fit. (jP ) This Section applies only to simple cases. When, therefore, the de- fendant in an administration summons sets up a release, the validity of which was disputed, the Court dismissed the summons as irregular. Acosta v An- derson, 19 Beav. 161 ; 24 L. J. Ch. 437 ; see also Eump v GreenhUl, 20Beav. 512 ; 24 L. J. Ch. DO-, 1 Jur. N. S. 123, where it Was hekl tliat a decretal order on an administration summons was no answer to a suit embracing matters which could not be included in that decree. But where a decree and accounts have already be«n taken at Chambers, the Court will decide upon the rights of the parties, unless questions of great difficulty are involved. West v Laing, 3 Drew. 331 ; 4 AT. E. 1. ( 3 ) Whether the assignee or mortgagee of a residuary legatee can obtain the summons, seems to he doubtful. Whittington v Edwards, 3 DeG. & J. 243 ; 7 W. R. 72. The Court has power under this Section to make an order for the administration of the effects bequeathed by the will of a married woman in pursuance of a power. SeweU v Ashley, 3 DeG. M. & G. 933 ; 17 Jur. 269 ; 22 L. J. Ch. 659. (r) The Section of the EngUsh Act, 15 & 16 Vic. c. 86, s, IS.'ft'om which this provision is taken, expressly provides what may be done at Chambers, and the consolidated orders made in reference thereto, point out the mode of doing it ; it may be, however, that for the purposes of this summons, the form of the order appended to the Act would be held equivalent to an express enactment In this instance. ( s ) In general only the usual administration order will be made on an administration simamons ; Partington v Reynolds, 4 Drew. 253 ; 27 L. J. Ch. 505 ; 4 Jur. N. S. 200 ; 6 W. R. 615 ; 31 L. T. 7 ; Blakeley v Blakeley, 1 Jur. isr. S. 368 ; Re Pryer, 26 L. J. Ch. 398 ; 3 K. & J. 317 ; Cf. Jones v Morrell, 2 Sim. N. S. 241. But the Court has power, on reasonable grounds, to direct fiirther accounts or enquiries on such a summons ; Mutter v Hudson, 2 Jur. 7S. S. 34; Delevante v ChUde, 6 Jur. N. S. 118 ; and in a late case, Rrooker V Brooker, Re Brooker's estate, 3 Sm. & G. 475; 26 L. J. Ch. 411; 3 Jur. N. S. 381; 28 L. T. 354; V. C. Stuart made an order for an injunction and receiver as against the administratrix of a deceased iatestate. After the common decretal order had been made in Chambers, a case of wilful default against the administratrix having come out in the course of the proceedings under the order in Chambers, (see to as to wilful default, Tickner v Smith, 3 Sm. & G.) But this case has not been generally followed, for in Partington V Reynolds, ante, V. C. Kindersley held that the Court had no power to charge the defendant as for a wilful default, as by so doing it would be directing accounts on a footing inconsistent with the decree itself. See Delevante v ChUde, ante ; Hodson v Ball, 1 Phil. 177; Nelson v Booth, 3 De G. & J. 119; 27 L. J. Ch. 782 ; 6 W. R. 845 ; 5 Jur. N. S. 23. In Re Wiltshire estate, 8 W. R. 133 ; 6 Jur. N. S. 189 ; it was held by V. C. Stuart that an executor cannot be charged upon an admission of assets, on an administration summons. A plaintiff in an administratioB suit commenced by summons, may move to stay proceedings in a suit commenced by bUl, if it can be shewn that the order will effect aU that can be directed by a decree made upon a bill filed, Ritchie v Humberstone, 22 L. J. Ch. 1006; but see Eump v GreenhUl, ante, Cf Penny v Francis, 30 L. J. Ch. 185; Furze v Hennett, 2 De G. & J. 125 ; Gwvon V Peterson, 26 Beav. 83. After an order made on summons, the Court will stay an execution at law against the executor as after a decree obtained on a biU ; Gardner v Garrett, 20 Beav. *69- . Upon an administration summons, parties out of the jurisdiction must be served with notice of the decretal order; Strong v Moore, 22 L. J. Ch. 917; 1 W R 509 A devisee of real estate, subject to the payment of a testator s debts and fUneral and testamentary expenses, is a tinistee within the Section ; 60 Ogden V Xowry, 25 L. J. CIi. 198 ; 4 W. E. I5S f see also Pigott v Yonng, 7 W. E. 235 ; V. C. K. When a decree has been made in an administration suit, and the personal estate is insufficient for payment of debts, the Court may direct sale of real estate for that purpose, and direct costs to be paid out of the proceeds. 26 Vic. c. 16, s. 10, post. 32. On making any decree the Clerk shall draw up and submit minutes of the same to the Solicitors on both sides,- who may attend the Clerk upon an appointment to be made by him, to settle the same. If any dispute shall arise as to the matter of such decree, the Judge who heard the cause shall, on application of either party, finally determine such dispute. Instead of enrolment of such decree the Clerk shall keep a Book, in which he shall enter an abstract of the plead- ings, and a reference to the evidence, {() together with the decree in full. But this entry shall not be made until after decision in any ease of appeal, and such appeal, as well as an appeal from any order, shall be made within twenty days after the decision of the cause, unless a Term intervene, and then at such Term. No re-hearing. Bill of review, or sup- plemental Bill in the nature of such Bill, shall be permitted; but newly discovered facts, or matters allowed on such Bill of review, if stated in the notice of appeal, may be heard and determined on the appeal as in cases of new trial. A certified copy of the entry, or of any part thereof, or a memorial thereof, shall be evidence of such decree, or of the part there- of required, either in Court, or for registry in any County Registry of Deeds and Wills. ( J ) It would seem almost impossible for the Clerk, whose office is in Fre- dericton, where the Terms and Monthly Sittings of the Court are held, to make a reference to evidence (whatever this may mean) taken viva voce, or in any other way, befote a, Judge in other parts of the Province; and evian in the case of viva voce evidence in open Court at Fredericton there is a difficulty, Inasmuch as there is no provision made by the Act for taking such evidence, and the only record of it, if not voluntarUy taken down by the Clerk, would be the notes of the Judge himself. Besides, if a Judge can be called upon \o hold a Court or transact Equity business at Chambers, in any other place than IFx-edericton where the records of the Court are kept, very grave questions arise as to how any papers in a cause on file can bo produced before the Judge ; who is to be responsible for the safe keeping and transmission from and to the office again ; and as to papers filed with the Judge at such sitting of the Court or Chambers, or evidence taken befbre him, who is to be responsible for their safe keeping and proper filing in the office at Fredericton ; and how the decree or order of the Judge made in such a case can be noted by thp Clerk, and such evidence referred to in making an entry thereof (even if such tintry could be made at all) in the Book of Decrees. §Me.— Who is to prepare the abstract of the pleadings, the Clerk or the Solicitors ? With all these difficulties, self-apparent as they must have been to the Legislature, could they have intended that " the Supreme Court in Equity" might be opened in five distinct places in the Province' by the five Judges separately, and at the same instant of time ; or that it might and should be opened at the usual place of sitting of the Court of Chancery, by any one of 61 the five Judges, in place of, and invested witli the poTvers of the Master of the EoUs before the passing of this Act ? There bciug no provision (except the A^? ""^""^ S" ?"^-/i' '"""' P- -' """J ^^"^ f°™ t^«-"° referred to) in thi Act and no Rule of Court made, in regard to doing the business of the Court ■it thambei-s, it may be fairly inferred that all such business should be trans- acted in the same manner as formerly in the Court of Chancery. 33. Eveiy appeal from any decree or order shall be by notice as in cases of new trial, to be served on the opposite party as well as on the Judge who made the same, and shall be heard at the next Term in the same manner, except that no previous rule shall be necessary. 3-i. In every case of appeal the pleadings, evidence, and all papers used in any stage of the cause, together with the notes of the Judge who heard the same, or tried any issue therein, shall be produced to the Court on the hearing of the appeal ; from the decision of which no writ of error or appeal shall lie, except to the Queen in Council. 35. Any appeal from a decision of any Judge of Probates shall be to the said Court, and such appeal, together with any now pending, shall be conducted in the same manner, and on the like principles, as if the case had originated in Equity, subject only to the directions of the Act of Assembly relating to appeals from Probate Courts. 36. All sales of real estate ordered by the Judge, (u) shall be conducted by any officer to whom the same may be re- ferred by the Judge, in the same manner as in sales on Bills of foreclosure of mortgages. (m) Upon such an order being made for sale every person seized or pos- sessed of the land, or entitled to contingent right therein, being a party to the suit or proceeding, shall be deemed to be a trustee, and the Court may make an order to vest the estate in the purchaser, &c., as effectually as if the parties had executed a conveyance of the same. 26 Vic. c. 16, s. 11, j 37. All moneys subject to the control of the Court, shall be paid into the hands of such person or body corporate, or be vested in such securities, as any Judge shall from time to time direct; and all increase thereof shall be added to the principal, and distributed therewith to the person entitled to the same. 38. A decree directing the payment of money shall, from the time when a memorial thereof shall be registered in any County where there may be lands of a party, bind such lands in the same manner as registered common law judgments. 39. The Court shall have power to enforce performance ot its decrees and orders by Execution (v) (G) against the body, or the goods and chattels, lands and tenements (H) of the 62 party made liable to sueli decree or order, and with the like effect as executions issued on the Common Law side of the Supreme Court; and no subpoena for costs shall hereafter be allowed. ( u ) In England the writ of execution to enforce decrees is abolislicd, and decrees and orders are enforced by attachment, and when brought up for continued disobedience, the Court will not discharge, him until performance of the decree or order and the payment of costs. Consd. orders, Morgan, 495, 501. But fieri facias, elegit, and venditioni exponas, are issued in certain cases under the following rule of order xxix, viz : — " Every person to whom in any cause or matter pending in this Court, any sum of money or any costs shall have been directed to be paid, shall, after the lapse of one month from the time when the decree or order for payment was duly passed and entered, be entitled to sue out one or more writ or writs of fieri facias, or writ or writs of elegit, of the Forms set forth in Schedules F and G, or as near thereto as the circumstances of the case may require ;" under this rule the following decisions have been had, viz :— The object of the Rule is to put the party in the same position as a plaintiff at law. Spencer v Allen, 2 Ph. 215. When therefore a writ of fieri facias issued into one County has faUed to satisfy the demand, another writ may issue into another County, ib. ; see Hodgson v Hodgson, 23 Beav. 604. This Eule is not interfered with by the Rule as to attachment. When the order was to pay money on the day before the day on which the order was passed and entered, it was held by the Lords Justices that compli- ance with it was an impossibility, and that a writ of j?. fa. issued under it was irregular. Adkins v Bliss, 2 De G. & J. 286 ; 6 W. R. 453 ; 26 L. J. Ch. 486. If the order directs payment within a certain time for service, and It is never served, the writ cannot issue upon it, as in that case there ig no default, ib. But when the time is not stated in the order, the order is not made ineffectual, but the Court wiU, on motion, fix a time. Needham v Needham, 1 Hare, 603 ; on appeal, 1 Ph. 640. When part of the money directed to be paid had been levied under a.fl.fa. issued under this rule, and the amount of the levy appeared on the return to the writ, the Court refused the four day order for payment, but made the following order :—" Let the Chief Clerk ascertain and certify the amount now due from the defendant to the plaintiff, and let the defendant within ten days after the date of the Chief Clerk's certificate, pay to the plaintiff what shall be so certified to be due. The order to be taken on aflldavit of service." Hipkins v Hipkins, 26 L. J. Ch. 512. It will be observed that by the English Rule, the party himself may issue execution at a certain time fixed, but by the above Section the Court are empowered to enforce performance by execution, but it does not authorize an execution to be issued by the party ; and it would seem necessary either that the decree or order should contain directions for the execution to' issue, or that a separate application should be made to the Court for its issue. This question involves the rights of third parties, and the Sheriff might be placed in a difficult position, both as to life and limb, should an execution be issued without due authority. On the 23rd March 1839, (see ante p. 34,) the only mod« of enforcing decrees in England was by process of contempt. 1 Dan. Ch. Pr. 698. But see Rules of Court ante 16, as to mode of compelling performance of decrees or orders of the Court here. By these Rules process of contempt to enforce decrees was made unnecessary, and a shorter method provided for ; nor would these Rules seem to be abolished by this Section, as it is almost a verbatim copy of Sec. 12, 2 Vic. c. 35, (repealed Stat, post), by virtue of which Act they were made. 40. On any decree against any person out of the limits of the Province, a Judge may order process to compel the per- formance of such decree, either by an immediate sequestra- tion of the real and personal estate of the party proceeded 03 against, or such part thereof as may he sufficient to satisfy the demand of the plaintiff in the suit; or by causing pos- session of the estate or effects demanded by the Bill to be delivered to him, or otherwise, as the nature of the case shall require; and may likewise order the plaintiff to be paid his demand of the estate so sequestered, according to the decree ; hut the plaintiff shall first give sufficient security in a sum to he mentioned by the Judge, to abide such order touching the restitution of such estate, and payment of costs, as may be made in ease of the defendant's appearance in such suit. If the plaintiff shall refuse or neglect to give such security, the Judge shall order the estate to remain under the direction of the Court, by appointing a receiver thereof, or otherwise, until the appearance of the defendant, or such order shall be made therein as shall he just. 41. If any decree shall be made as herein last aforesaid, and the person against whom the decree may be, shall within two years after the making thereof come into the Province, within the knowledge of the plaintiff, he shall be served with a copy of the decree within a reasonable time thereafter. 42. If any defendant against whom such decree shall be made shall within two years after the making thereof happen to die without being served with a copy of the decree, his heir, if such defendant shall have any real estate sequestered, or whereof possession shall have been delivered to the plain- tiff, or if such heir shall have been a married woman, infant, or not in his right mind, the husband, guardian, or committee of such heir, or if the personal estate of such defendant be sequestered, or possessein thereof delivered to the plaintiff, his personal representative shall be served with a copy of the decree within a reasonable time after it shall be known to the plaintiff that the defendant is dead, and who is his heir or representative, and where he may be served therewith. 43. If any person served with a copy of such decree shall not Avithin three months after such service appear and petition to have the said cause re-heard, the decree shall stand abso- lutely confirmed against the party served, his heirs and execu- tors, and all persons claiming or to claim by, from, or under him. 44. If any person served with a copy of such decree shall within three months after such service, or if any person not 64 being served sliall within two years next after the making of such deci-ee, appear in Court and petition to be heard with respect to the matter of such decree, and pay down or give security for payment of such costs as may be deemed reason- able, the person so petitioning, his representative, or any person claiming under him, may be admitted to answer the Bill exhibited, and issue may be joined, and such other pro- ceedings, decree, and execution may be had therein as might have been if the same party had originally appeared ; but if no such petition shall be made, all such parties shall stand absolutely barred by such decree. 46. The practice of making deposits to answer costs on certain proceedings in the Court is hereby abolished, and the costs shall be allowed and taxed as in other cases. 46. The Forms in the Schedule to this Chapter, or to the like effect, with the explanations, shall be_ deemed the same as if incorporated in the Sections to which they refer. SCHEDULE OF FORMS. (A) Summons. Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, &c. To We command you, that within forty days after the service of this Summons on you, exclusive of the day of such ser- vice, you do cause an appearance to be entered for you in our Supreme Court at Fredericton, on the Equity side, in a suit wherein a Bill will be filed against you by [and another or others] for [the foreclosure and sale of certain mortgage land and premises, or the specific performance of a certain contract, or in the same brief manner for whatever may be the cause of suit,} and observe what our said Court shall direct in this behalf, upon pain of such Bill being taken against you pro confesso. Witness , Chief Justice, at Fredericton, the day of, &e. [day of issuing.] D. L. E., Okrk. [Note.— See 26 Vic. c. 16, s, 5, post. In foreclosure suits the names of the parties, the date of mortgage, and the amount claimed, mustlDe endorsed on the Summons.] 65 (B) Supreme Court, \ f A. B., Plaintiff, and Equity Side. / \ C. D., Defendant. E. i\, Counsel for FhrnUff. 1. The plaintiff complains ttat by virtue of an indenture duly registered, [or as the document may he^ dated the day of A. D. 18 , and made between [stating the parties'] he is a mortgagee [or assignee of a mortgagee, describing the date and consideration of the assignment, or as the case may be,'] of certain^roperty therein comprised, situate and des- cribed as follows : — [describe the property particularly] for securing the sum of £ and interest, which said mort- gage, and a bond given therewith, are now in his custody, (or as the case may be.) 2. That the time of payment thereof has elapsed, and that the defendant is entitled to the equity of redemption of the said mortgaged premises. 3. The plaintiff therefore prays to be paid the said sum of £ [whatever may be due] and interest, with the costs of this suit, and i*n default thereof, that the equity of redemption may be foreclosed, the mortgaged premises sold, and the pro- duce thereof applied in payment of his said debt and Costs, and for that purpose to have all proper directions given and accounts taken. A. B. [the PlainUff.] The above named , the plaintiff, was on the day of , A. D. 18 sworn to the truth of this Bill before me. G. H. Commissioner, ^c. in Equity. (C) Order of Injunction. Supreme Court, 1 -Rptwpen / ^- ^- ^^««^#» and Equity Side. / ^^^^^^""{CJ). Defendant. Before His Honor Mr. Justice , the day of , A. D. 18 . , To Mr. C; D. the above named defendant, hie workmen, laboureirs, servant&, and agents. You and each of you are hereby strictly enjoined and com- manded under the penalty of ■£1000to be levied cin your lands, goods, and chattels, and also of imprisonmeHt, to desist hence- 66 forth altogether and absolutely from felling or cutting down any timber, or other trees standing, growing, or being in or upon the premises situate and described as follows : — [describ- ing them as in the Bill, or according to the circiemstdnces] and from^ ooirajnitting or doing any other or further wiaste of spoil, in or upon the said premises, or any patt thereof, until order shall be made to the contrary. ,< By order of the Court, (or in esse of emergencj^. Given, under my hand the day of ,A.D.1B .) JX. 1,. R., Clerk. , Judge, ^c.. ' \:. ., J.^) '' ; Interrogatories for answer. In the Supreme Court, \ -r. x f A. B. Plaintiff, and , Equity Side. . / ^^^^^^"^XCD. Bfifend/mt.^ Interrogatories for thp examination, of the above named defen- dant in answer to the plaintiff's Bill of complaint. ; ^ 1. Has not a mortgage be^n made, given, and duly regis- tered to ,. of the date, for the sum, and on the premises in the said Bill m,entioned, and has not assignment thereof been made to the plaintiff of the datp and for the consideratpn therein ,5fLent-ioned, or some other .^nd what dates, sums and premises respectively ? , .r 2. Has not the time of payment thereof elapsed, .and is not the defendaint entitled to the equity of redemption of the said mortgaged premises ? ,. , ; ' - ""kh. &c. &c. {^Naffie of Counsel.J (E) Answer. " ''^Zt"'*' } Between! A. B. m^^, E. F. Counsel fo^ Defendant. The answer of 0. D. the above named defendant, to the Bill of complaint of the above named plaintiff. In answer to.ila^ said Bill, I, C; D. say as follows : — '- ' 1. I admit that the mortgage in the Bill arid interrogatories mentioned hais'beenn made, given,; and .duly registered as therein' stated {or as the case may be), and the assignment has also been made as in the.said'Bill mentioned. ^ ' . r 67 2. I admit the time of payment lias elapsed, and that I am entitled to the equity of redemption in the mortgaged premisesi. Sworn, &c. IDrfendant's name.^ (F) Summons^ In the Supreme Court, \ . , - Equity Side. ; / , , ! ' 2a;the matter of the Estate of late of the Parish of , in the County of j deceased, A.B. 1 against > CD. j Upon the application of , who claims to be a creditor on the estate of the above named , Let the executor of the said attend at my office in [or at my dwelling house,) on the day of , at ;- of the clock in the , and shew cause, if he can, why an Order for the administration of the personal estate of the said should not be granted.^ — -Dated, &e. ' , Judge in Equity. Note.— If the above named do not attend either in person, or by his Solicitor, at the time and place above mentioned, such Order will be made in his absence as the . Judge may think just. This Summons was taken out by J. K. the 'Solicitor for the above named , . (G) : ; .;. . Execution against the body, ^c. io enforce, Order or Decree. . Victoria, &c., ' .' To the Sheriff of "Whereas by a certain Order [or Decree) lately made in our Supreme Court in Equity in a certain cause there depending, wherein A. B. is plaintiff and C. D. defendant, it Wasordered (or decreed) that the^ said defendant should pay to the said plaintiff the sum of [or should convey to the said pidifitiff, ^c. a certain piece of land described as follows : or a certain, ship or vessel called the , or deUver' certain property as: the dase may be, describing it as in the Decree,) as by the said Order [or 68 Decree) remaining as of record in our said Coiiii; will more fully appear.* Therefore we command yom that jmi take the said defendant, and him safely keep in your custody until the said sum of be paid to you for the said plain- tiff, {or until the said land, or vessel, ^c. be conveyed according to such Decree,) and if the said defendant shall not within one month from such arrest, make the conveyance aforesaid, you are hereby commanded to take and give possession of \^ueh land, vessel, or j)roperty,'] to ^he said plaintiff; and make re- turn hereof when fally executed. — Witness J, G., Chief Jus- tice, at Frederieton, the day of A. D. 18 , [day of issuing.] D. L. R., Ojerk. (H) Execution against Goods and Chattels, Yictoria,, &c, To the Sheriff of Whereas, &c. {asiniht last preceding form to the asterisk,*] Therefore we command you, that of the goods and chatt«l8, lands and tenements, of the said defendant, you cause to be made th« sum of for the said plaintiff, and make re- turn hereof when fully executed;^- Witness &c. {as before in hstform.] D. L. R., ClerJi. (I) Affidavit as to produietim of Doeumeivts, See ante p. 46, note (g), settled by the Equity Judges in England. In Chancery. CEile.) I, of make oath and say as follows : — 1. I say I have in my possession or power,, the documents relating to the matters in question in this, suit, set, forth, in the, first ajidr second parts of the first Sclj^edule, teieto an- nexed. 2. Ifurthersay, that I object to produce the isaid docu- ments set fejrifli: in, the second part of tj^e said first Schedule .hereto* 3. I further say, [State upon what grounds the objection is made, and verify the facts so far as may be.] 69 4. I further say, ttat I have had, but have not now, in my possession or power, the documents relating to the mat- ters in question in this suit, set forth in the second Schedule hereto annexed. 5. I further say, that the last mentioned documents were last in my possession on [state when.] 6. I further say, [State what has become of the last mentioned documents, and in whose possession they now are.] 7. I further say, according to the best of my knowledge, remembrance, information, and belief, that I have not now, and never have had in my own possession, custody, or power, or in the possession, custody or power of my Solicitors or Agents, or Solicitor or Agent, or in the possession, custody or power of any other person or persons on my behalf, any deed, account, book of account, voucher, receipt, letter, miemorandum, paper, or writing, or any copy of or extract from any such document whatsoever relating to the matters in question in this suit, or any of them, or wherein any entry has been made relative to such matters, or any of them, other than and except the documents set forth in the said first and second Schedules hereto. NoTB. — If the party denies haying any, he Is to make an affidavit in form of the Tth, omitting the exception. Chapter 3. Of Proceedings on a Reference. Section. Section. 1. Reference, when made. 5. Accounting parties, how to proceed 2 WhatSammons or Warrant required. thereon. 3 When and how to proceed on Ee- 6. Accounts thereon, mode of proof. ference ''• Objections, how to proceed thereon. 4 Examinations, how to be tal^en 8. Exceptions to report, how to proceed thereon. „ „ thereon. 9. Subpoenas, how issued. 1. A Reference may be made by a Judge, on the application of either party, to any Barrister, or to any scientific person or accountant, not interested, for any enquiry or other purpose ; and the person so specially appointed, on being sworn, shall thereupon becbme for that purpose an officer of the QouvL (a) 2. No summons or warrant shall be issued by any officer on a feference other than to require the parties to proceed, which they shall do forthwith, if required by the officer, with power 70 of adjournment, and, on bniission to adjourn, with po'fr^er to proceed on notifying the parties. . !; ( a ) The person appointed under this Section Vrould , seera to stand' in the place of the Master in Chancery, which office is abolished, araJe, p. 36; and all proceedings before him, except where otherwise directed by this Act, must necessarily be regulated by the practice or proceedings in the Master's 6ffice, for Whibh'see Grant, Ch. Pr. 311; Smith, Ch. Pr. 96; 2Ban. Ch. Pr. 789, et seqq. - ' . '. ^ ' 3. If the party obtaining a decree or decretal order dir-ect- ing a reference, shall not within one month from the time of settling the same, proceed therewith before the. oAcer named therein, or if any unnecessary delay tate' place on any refer- ence, either party, or the. officer, may be ordered' by a Judge, oil good cause shewn, peremptorily to proceed with the same, on siich pain of dismissal of the cause, or excluding further proof, or payment of costs. Or ordering the return of the officer's proceedings and a new reference, sis he maydeem right. '' . r / ' ' 4. Ko interrogatories shall be filed on arefetende, cornihis- sibn of partition, or the like,' but the exarn^iriations shall always be viva voce by question and answer. '5. Accounting parties shall in all eafees be required to :6ie with the officer, on oath, a debtor and creditor account, unless the plaintiff rely oh the schedules to the answer.' 'In either case he may supply by a,dditional account and proof &nj omis- 'sions of the defendant, and the officer shall proceed thereon without requiring a charge from the plaintiff or a discharge from the defendant, unless no discharge should accompany the schedules. Any omissions may also be supplied by the defendant. Each party niay be examined on oath for or against his own or the opposite party's iaccount. The books or writings (6) of either party, or of any person or party represented by hirh, or under whom he claims, ma^ also be used in evidence for' or a,gainst the party producing them, the officer reporting as to the nature of the evideace, when objected to^ and the credit due to it. ' (6) These books and writings, when used in evidence on any reference, a];e, made evidence before the Court or a Judge thereof. 26 Yic. c. 16; s. 23, post'. This provision, however, is not. to extend -to suits or proceedings commenced orrpendlng.at the time of passing the said A6t. 27 V. c. 5, post. 6: 1^0 person shalU be required to proye his account, or=any part thereof,^ until the opposite party 'shall specify the objec- tionable items, and deny on oath their correctness^ and where there are accounts of deceased persons, or of those under whona any party claims, the denial of the representing party 71 shall be to the best of his knowledge and belief, except where he may have personal knowledge of the transactions. If the party refuse so to specify and deny, the officer shall pass the accounts on the oath or examination of the party producing them. 7. All objections on a reference shall be made and argued at the time of presenting the proof, unless postponed for fur- ther consideration, and when decided, shall be briefly noted in the officer's report, and no exceptions grounded thereon shall afterwards be filed with him or argued. ' ' ' " 8. Exceptions to the report shall be delivered to the opposite party within fourteen days after notice of the signing thereof, and if the parties.cannot agree upon the evidence from which any objection may arise, the officer shall furnish a copy thereof to the party requiring the same, or he may be compelled so to do, on the order of a Judge. On application to a Judge on motion or petition to confirm the report, or upon fourteen days notice to the opposite party by the party objecting, the excep- tions shall be heard and decided, without reference back to. the officer, unless the case require further investigation by him ; but in no case shall a reference back to ihe officer be ordered when the defective matter can be supplied by direct investigation of the Judge. 9. The Solicitors of the parties may issue subpoenas for the attteridance of any witnesses, with or without the production of writings, before any officer authorized to take any exami- nation, without an authority from him, on being signed and sealed by the Clerk ; and for any disobedience of any witness thereto, or for refusing to answer lawfnj questions before the officer, a Judge may grant an attachment against such wit- ness, and unless good cause be shewn, may order him to be committed on such attachment, or make such other order as may be reasonable. Chapter 4. Of Infants and Guardians. .. Seetion. Section. , ,; ' , 1. Guardian for Infant; how appointed. 5. Conveyance of, wKen valid, and 8. Infant seized in trust, iow to convey. report required.^ ■ ^^ S. Specific performance .of contract, 6. Infant, wlien deemed a Ward of tiie how contpelledby Intant. Court. , ,. , ^ 4 Sale or disposal of- Inlant's lands, 7. Sale not to alter the kind of property. how effected. ' ' 8- Conveyance, What evidence. 72 Section. Section. 9. Officer's report as to Guardians, 10. In. what case^ Guardians may be ap- how confirmed, and recognizance pointed without reference. &led, &c. 1. A guardian may be appointed for the defence of an infant in any suit in the said Court, on petition (c) of the infant, and proof by affidavit' of his signature freely given, together with the consent of the guardian written thereon, and proved in like manner. If the infant be not of sufficient age to write, his nanae may be subBcribed to the pe-tition by one of his nearest relations. (c) As to what the petition should contalu where a reference would be necessary, vide ante, p. 14. 2. Whenever any infant shall be seized or possessed of any lands, tenements, or hereditaments, by way of mortgage, or in trust {d) only for others, any Judge, on petition of the guardian of such infant, or of any person interested, may by order enable and compel such infant to convey the same to any other person as may be therein directed. Every con- veyance made pursuant to such order shall be as effectual as if made by such infant when of lawful age. ( . The -tSth sec. of IS & 16 V. c 86, which provides for the sale of mortgaged premises instead of foreclosure, differs materially from the provisions of this Act, and the decisions under it are so qualified, with the discretion given to the Coart and the consent of parties iaterestea,- that very few of these would be foimd applicable here. It has been held by V. C. Stuart, that mortgagee's in.trust may, under. the said, -tSth section, file a bUl for an account of what is due to them, and for a sale, although the mortgage contains, a power of sale, and a foreclosure is hot prayed for by the bill; Htrttonv Sealey, 4 Jur. N. S. '4J0; 6 W. K.'StO. See also Sporle v Wheyman, 20 Beav. 607; M';fia«v Ellison, 4 Jur. N. S. 967. As to cases where bill is taken pro cpnfesso, see Green v Harrison, 4 W. R. 696, The Court will not under this section order-a sale on an interlocutory ap- plication, "VVayn v Lewis, 1 Drew. 487; 22 L. J. Ch- Ip&l; and in the same case it was said that a sale cannot be directed after a decree of foreclosure, even on tbe application of the mortgagee; Girdieston v Lavender, 9 Hare, app. liii; bat in Laslett v Clifie, 2 Sm. & G.:278, V. C. Stuart considered that the Section gate' power to direct a sale after a decree for foreclosure had been made, beii^ of opinion that the Court ought not, when the plaintiff had obtained a decree, to Insist upon his proceeding against his wUl on a decree which he obtained for his own advantage, when he preferred a differ- ent course authorized by th6 legislature. Cf, Cook, 2 Cholmortiely,; 5 "W, R. 335, ( ft ) iSTotice not necessary when bin taken j)ro confesso for want of appear- ance, unless defendant apply for reference to a Barrister, 26 Vic. C'le, s. 7, post, ' . ' (i) See Rules aK<«, pp. 20, 24. If the Legislature intendedthat th« oiflicep' shOuM, without maMn^ a report of' his doings', proceed to a sale,' it -vvonid virtually abolish the practice whiidi gave the opposite party an opportunity of taking exceptions to the report, and would- in fact make officers' proceed- ings- final and conclusive. It would seem rather, that they intended to direcit the sale to be made after the officer's report had been confirmed audi ah order of the Court passBjd for such sale. See as to confirming ofilcer's report, ■ 2. Immediately upon sucb sale the said officer shdll execute in bis own name as such officer, and deliver to the purchaser, a conveyance of the land so sold, which conveyance shall briefly refer to the said decretal order, the advertising, and tbe sate, and then proceed to convey the same to the ■sai'd purebaser^ which conveyance shall vest in the purchaser tbe same estate as -tvouldi have vested in the mortgagee, if the equity of redeiiiption had been foreclosed, and such deed shall be a bar against all parties to the suit ill which such 76 decree was made, and all claiming under them (k); and every such convejance, duly acknowledged or proved and registered in the Registry Office of the County where the lands lie, shall be evidence of the execution, and that all the proceedings on which such conveyance was founded were rightly had. (k) See 26 Vic. c. 16, s. 11, where in any case a decree or order shall di- rect the sale of land, every person seized or possessed of such land, or enti- tled to any contingent Interest therein, being parties to the snit or otherwise bound by the decree or order, shall be deemed a Trustee, and the Court may make an order vesting such lands in any person they think fit, &c. 3. The proceeds of every sale made under the decree aforesaid shall be applied to the discharge of the debt and costs, and if there be a surplus it shall be brought into Court for the use of the person entitled thereto, subject to the order of any Judge, to be made on petition or motion and affidavit, with production of the mortgage or other securities, and notice to other parties interested, o>r other- wise, as may be ordered. 4. When any suit shall be brought for the foreclosure and sale, or foreclosure alone of any mortgage, the defendant may pay to the plaintiff at any time before sale or foreclosure absolute, the principal and interest with costs, and thereby terminate the suit ; bat if a decree of sale or foreclosure shall have passed, and any further amount may thereafter be due thereon, the same shall stand as a security for such further sum, and upon any subsequent default of payment, may be enforced by the further order of a Judge for the sale or foreclosure of the mortgaged premises, as the case may be, or of such part thereof from time to time, as shall be necessary, until the amount secured by the mortgage and the costs of the proceedings therein shall have been fully satisfied. 5. If it shall appear to a Judge that the sale of the whole mortgaged premises will be most beneficial to the parties, the decree shall be entered accordingly, or the Judge, if a reference be ordered, may direct the same to be ascertained by the officer, when the proceeds shall be applied as well to the payment of the amount due with the costs, as towards the residue not due at the time of sale ; and if such residue do not bear interest, the Judge may direct the same to be paid with a deduction of the legal interest for the time during which such residue shall not be due. 77 6. "Where subsequent incumbrances affect any mortgaged premises which may be sold under decree, the residue of the proceeds remaining after the discharge of the first mortgage, shall be subject, under the order of a Judge, to such sub- sequent incumbrances according to their priority, whether the same be due or otherwise, and to the like deduction of interest as in the last preceding Section. 7. "When any foreclosure shall be decreed, the order for the same shall allow such time for the payment of the money due, with interest and costs, as the Judge shall direct, not to be less in any case than three months, the amount of principal and interest up to the time of payment td be ascer- tained by him as in the case of a foreclosure and sale, and on non-payment of the amount so found due with the costs, and proof thereof by affidavit, any Judge on motion or petition may order the decree of foreclosure to be made absolute, unless on good cause shewn by affidavit and pre- vious notice to the plaintiff, a Judge may order a further extension of the time for payment of the money due, in which case such extension shall be allowed on such terms as may be prescribed, and so on as often as may be deemed necessary. 8. When the principal and interest of any mortgage, together with the costs (if any) shall be paid by the mort- gagor or any person claiming under him, whether the same shall be in suit or otherwise, a Judge may, en satisfactory proof by affidavit of such payment, and on hearing the opposite party, order the mortgagee or person receiving the money to enter satisfaction in the Registry Office where registered, or subscribe and acknowledge a certificate in discharge thereof, such entry or certificate having been first demanded at the cost of the applicant and refused, and may also award costs to such applicant, or prescribe such other terms as the Judge may think just. If the party disobey such order, the Judge, on proof thereof by affidavit, shall direct the Registrar of Deeds, at the cost of the party apply- ing, to enter the satisfaction in the same manner as if done by the party himself, and to enter the order in the registry books referring to the said satisfaction. 7^ Chapter 6: Of Partition of Lands, Section. ' '' Section, l.i^artitionbrrands, howtobeeffebted. 4. Partition, how to be made where 2, How, if iai;a!nt.)^e aparty. , . interests miante. . .,,. , 3: CbmmfssfoijerS, liow to be appointed. 5. Decree of Partition, howto'piss title. 1. TJie partition of land's, tenements, and hereditaments, held in co-parcenary, joint tenancy, or tenancy in common, shall be effected by the Supreme Court in Equity. (Z) (?) Partition was provided for, formerly in this Province by 5(J G. 3, c. 7, under -which Act the SupPetde Court, ■ upon petition,' examined the claims of the parties, and having, determined their respective rights,, " awarded a \vrit of partition as nearly as might be in the form for that purpose established m the register of judioiflii writs.?' -By 52 G. 3, c. 19, this Act wafe! aimerldedy and it was enacted that.alJ, proqeedi'ngs at law foi; partition shojild commence by. writ' issuing out' of the Supreme Court, as nearly as maybe in the form of the writ of partition issuing out of the Court of Chancery in England; :and» after directing the mode of proceedings incase of non-appearance, as well, as after the' tenants appeared to the Writ, the actual partition ■s^S.s directed' to be made) in the same manner as wasi provided; for by 50 G. 3, c. 7... This last mentioned Act.has not been expressly repealed, but by 2 Tic. c. 3(^ s. 1, (repealed Act, post) it Was provided that ^partition should " be eflfected by the Court of Chancery according tip the practice or proceeding^ establishedr or to be, established in that Court; 2'Vic. c. 35, s. 13, post), provided tlia£ the rules of practice in the High Court qf Chancery Jn England, ias theii es- ' isting, where not modified by, local provisi9ns,- should berthe practice of- the. Court of Chancery-'in this country. See as to English practice at thife tbhc,' 2r)an.,<3h. Pr. -7691 .etsegg.,,-! Grant Ch. Pr. 49; Smith Ch. Pr. >,; - .:-.. This section simply states that the " Supreme Court in Equity " shall make partition of lands, but it says nothing of the proceedings therefor .before the orderfor a cpmmissian.toissuej jt would spem therefore, that tiie proceifd- ings tb" be had prioT fe the, commission," as .-well as in all other particulars, when not regulated by this Chapter ,\ should be Carried on in the saBae manner in, the Sjipreme Court.in Equity, ^^^ formerly before the M. R. in Chancery^ See 2 Vic. b. 36, ijosf. ' ' ' ' '■ ' '-' ... ,' , . .. 2. If in any proceeding for a partition, an infant be a p^rty, any judge" mdy appoint k gudrdia'n for' such infant. ^^ 3. On the order for a Comrhission in partition, tte Judge shall appoint three disinterested Comtoissionefs to 'make the parti tion,/subject to any reasonable objection by either pait^.' 4. When from the minuteness of the parties' interests in the estate the Commissioners may find it difficul't to make a beneficiail partition thereof, they may sell the same by por- tion's or otherwise at public auction to the highest, bidder, giyifig'not less than ohe month's previaus notice in a NewW paper of the County where the land lies, or if none be pub- lished there, in the Eoyal Gazette, and convey the same toi the purchaser; and they shall forthwith make a !r6turn of their doings, with their dpinion as to the value of the several portions directed to be partitioned,, to enable the Judge on the confirmation of the return to decree the payment of the 79 several shares according to the proportions so certified. The conveyance made according to the provisions of this Chapter shall be valid notwithstanding any defects ia the return of the Commissioners, and when acknowledged or proved, and registered in the Registry Office of the County, the same, or a copy thereof as in other cases, shall be evidence that all the proceedings on which such conveyance is founded were rightly had. 5. The decree of a Judge whereby any portion of lands held in co-parcenary, joint tenancy, or tenancy in common, shall be decreed in severalty, shall transfer to such co- parcenor, joint tenant, or tenant in common, all the right, title, and interest of the other parties interested therein, as well infants and married women, as others being parties to such proceedings ; but a memorial of such decree shall be made and registered. Chapter 7. ■ • 0/ the repeal of Statutes. Section. Section. 1. Acts specifically repealed. 2; When this Acttocomeintooperation. Schedule. ^ 1. The following. Acts of Assembly, passed in the several years of the respective Reigns hereinafter mentioned, shall be repealed as soon as this Act comes into opei'ation : — 48 e 3, u. 2. An Act for making Process in Courts of Equity effectual against persons who reside out of this Pro- vince and cannot be served therewith-, 50 G. 3, u. 1. An Act to authorize the Sheriff, or other executive officer serving Process at the Parish of Saint Mar- tins, to convey any prisoner there arrested to the Gaol in the. City of Saint. John by way of the public road leading through part of King's County. 53G. 3, c. 19. An Act to amend an Act intituled An Act to pro- . vide. for the more, easy partition of LavAs in Co-Far- cenary, Joint Tenano;^, and Temanoy. in Common. 3i w. 4, c. ifl. An Act in addition to an Act for making Process •in Courts of Equity. effectual against persons who reside out. of thi& Province and cannot be served therewith, , ' 80 1 V. c. 8. An Act to authorize the appointment of a Master of the Rolls to the Court of Chancery in this Pro- vince and to provide for such officer. 2 V. o. 38. An Act to authorize the sale of Mortgaged Pre- mises by the Court of Chancery, and directing the application of the proceeds thereof. 2 V. c. 29. An Act relating to the sale and disposition of the Real Estate of Infants. 2 V. c. 35. An Act for the improvement of the Practice in the Court of Chancery. 8 v. o 36., An Act relating to the partition of Lands, Tene- ments and Hereditaments, held in Co-Parcenary, Joint Tenancy, and Tenancy in Common. 2 V. i,. 37. An Act in amendment of the Act relating to the appointment of a Master of the Rolls in the Court of Chancery. 10 V. .;. 39. An Act to simplify the proceedings in the Court of Chancery in certain cases. 2. This Act shall come into operation on the first day of September in the year of our Lord one thousand eight hun- dred and fifty four. SCHEDULE. TABLE OF FEES. Mrst — Examiner or other Officer. Second — Clerk. Third — Solicitor. Fourth- — Counsel, Fifth — ^Sergeant-at-Arms, Sixth— SheriS. Examiner, or other Officer. Summons, jEO 2 Copies of all writings before the Examiner or other officer, per folio, Report or certificate on hearing, ... If above ten folio, for every additional folio, Report or certificate on petition or motion. If exceeding five folio, for every additional folio. Every recognizance, per folio, An examination fee for each person, 6 1 1 6 10 1 6 1 6 3 80 1 V. e. 8. An Act to authorize the appointment of a Master of the Rolls to the Court of Chancery in this Pro- vince and to provide for such officer. 8 V. c. 28. An Act to authorize the sale of Mortgaged Pre- mises by the Court of Chancery, and directing the application of the proceeds thereof. 2 V. ^. 29. An Act relating to the sale and disposition of the Real Estate of Infants. 2 V. 0. 35. An Act for the inaprovement of the Practice in the Court of Chancery. 2 v. o. 36.. An Act relating to the partition of Lands, Tene- ments and Hereditaments, held in Co-Parcenary, Joint Tenancy, and Tenancy in Common. 2 V. u. 37. An Act in amendment of the Act relating to the appointment of a Master of the Rolls in the Court of Chancery. 10 V. ^. 39. An Act to simplify the proceedings in the Court of Chancery in certain cases. 2. This Act shall come into operation on the first day of September in the year of our Lord one thousand eight hun- dred and fifty four. SCHEDULE. TABLE OF FEES. Mrsi — Examiner or other Officer. Second— Clerk. Third — Solicitor. Fourth^— Coun sel. Fifth — -Sergeant-at-Arms. -Six^/j— Sheriff. Examiner, or other Officer. Summons, ... ^0 2 Copies of all writings before the Examiner or other officer, per folio, 6 Report or certificate on hearing, 10 If above ten folio, for every additional folio, ... 1 6 Report or certificate on petition or motion, ... 10 If exceeding five folio, for every additional folio, 16 Every recognizance, per folio, 016 An examination fee for each person, 3 ■61 Every exhibit signed by an Examiner or otber officer, every person shewn to, each Every exemplification exam inedbysaidE xamin er, Preparing and executing conveyance of land, ... For every folio in the conveyance above ten folio. Preparing advertisement of sale of land, or any other purpose. Attending a public sale under his direction. Examining and settling a conveyance to be exe- cuted by another, Swearing a witness. Appointing time and place for his examination, Taking interrogatories and depositions, per folio. Certifying the examination, Swearing a party to bill, answer, or other pleading. Short attendance on summons, Attendance over one, not exceeding two hours, Attendance overtwo hours, not exceedingfour hours Every recognizance taken by him, aerk. Drawing and entering all orders and rules, per folio, Filing and entering any bill, answer, or other pleading, Filing every report or other paper, Copies of all orders and reports, per folio, Drawing and engrossing on parchment, and copy- ing on paper, same fee as Solicitor for 'the like services. Signing every copy of affidavit,. Do. certificate, ... Setting down a cause for hearing, or on motion paper, ••• Every decree and dismission, Every search, Entering attachments, for each person, Do. of all amerciaments, Do. appearances, Signing and sealing any process, Every paper read, in evidence, ..... Taxing a bill of costs, 11 1 6 3 1 3 4 2 5 1 3 4 11 8 1 1 6 2 2 S 2 6 8 13 4 1 3 6 2 2 3 1 1 1 2 3 1 5 1 6 1 2 1 6 6 3 6 82 Solicitor. Eetaining fee in eacli cause, ... 15 Drawing bill, answer, plea, demurrer, or other writing not otherwise provided for, per folio Engrossing, per folio, on parchment. Copy, per folio, Fee for each term, only four allowed, Attending to get petition answered, Do. Court on every common motion, Do. on every special motion. Copy of every order, per folio, Serving the same, ... Atteudingthe Court on every hearing or argument, Abbreviating bill, answer, or other proceeding, per folio, Every process. Every copy, Attending Clerk on every Decretal order, Serving all papers, ... Attending Examiner to file any charge or dis- charge, Do. on summons or adjournment, For all other -services the like fees as are allowed to Attorneys on the Common Law side of the Supreme Court. Postage actually incurred. The Solicitor Geueral to have one fourth more in cases that concern the Crown- Counsel. Eetaining fee, ,, Perusing and signing a bill, answer, ptea, demur- rer, or other special pleading, interrogatories or exceptions, Every motion of course, Every special motion, ... Arguing every plea, demurrer, or other special matter before the Court or on the hearing, fee at the discretion of the Court. Attending the examination of, and examining each witness^ ... • 5 1 8 6 5 6 8 3 4 6 8 6 3 4 15 4 5 2 6 6 8 1 3 4 6 8 10 10 10 15 83 GouBsel fees on special matters, where their as- sistance is necessary and. not otherwise, pro- vided for, at the discretion of the Court, on the Examiner's certificate. Sergeant-cd-Ar7iM. Taking a prisoner into «ustody, 13 4 Mileage, per mil«, 3 Serving summons to attend an Examiner, ... 1 Serving process, 2 6 Poundage, as on process at Common Law. Sheriff, The same as at Common Law, 18 VICTORIA, CAP. IX, An Act concerning Tender in Actions at Law and Suits in Equity. Section. Section. 1. Consent to judgment for a sum 3. No consent not acMpttid io he certain. evi-dence. 2. Costs, if ao more be recovered. Passed Zrd April 1855. Be it enacted by the Lieutenant Governor, Legislative Council, and Assembly, as follows : — 1. From and after the passing of this Acit, wherieiver any defendant in any Action at Law, or in any Suit in Equity, wherein debt or damages only are sought to be recovered, pending (a ) in any Court in this Province, shall file in the oflice of the Clerk of the Court in which such suit or action is pending, or with the Justice in case the suit is pending in the Court of any Justice of the Peace, an offer and consent in writing to suffer judgment by default, and that judgment shall be rendered against him as debt or damages for a sum by him specified in the said writing, the same shall be entered of record, together with the time when the same was tendered, and the plaintiff or his Attorney may, at any time within ten days after he has received notice of such offer and consent, file as aforesaid a memorandum in writing of his acceptance of judgment for the sum so offered as debt or damages, and judgment may be entered t;ip accordingly, with costs ; or if after such notice any Judge of the Court in which such offer shall be made, shall for good cause grant the plaintiff a farther time to elect, then the plaintiff may 8i signify his acceptance aa aforesaid, at any time befor© the expiration of the time so allowed, and judgment may be rendered upon such acceptance as if the accreptance had been within ten days as aforesaid ; provided always never- theless, that nothing .herein c&ntained shall extend or be Qonstrued to extend to actions of replevin. i ■ ( a ) An offer to suffer judgment by default may be filed under tMs Act be- fore tie declaration Is filed. Gibson v Bateman, i Allan, S98. As to whethei- the plaintiff would be entitled to costs on filing a declaration S&x judgment/ the Court gave no opinion. 2. "Whenever in the final disposition of any such suit or action as is named in the preceding Section, such of^'r and consent as is therein named shall have been made by the defendant, and the plaintiff shall not recover a greater sum than the sum so offered, not including interest on the sum recovered in debt or damages from the date of stieh offer, the defendant shall have judgment against the plaintiff for his eoS'ts by him incurred after the date of euch offer, and execution shall issue therefor ; and the plaintiff, if he shall recover any debt or damages, shall be allowed his costs only up to the date of such offer and consent. 3. Noofffer or consent made in accordance with the afore- going Sections, which shall not be accepted, shall be evidence against the party making the same, either in any subsequent, proceeding in the action or suit in which such offer is made, or in any other action or suit.: , . 26 VICTOEIA, CAP. X VL An Act to amend the Act relating to the administratioa of Justice ia Equity. Section. Section. 1. Bili in Equity not (o he sworn to, 8. Memorial of absolute decree of fore- except in Injunction cases. closure to be registered ^ deftiiied 2. Bills filed for injunction to be sworn copy to be evidence. .lo, or facts proved by affidavit. - 9. Facts occurring after eomraence- 3. Causes set down for hearing.on 14 ment of suit, to be added to Bill a& ' days' notice, without' pubKcation an amendmem. of evidence. 17 V. c. 18, s. 16, 10. Power of Court to order sale of real sub-tbapter 2, repealed. estate in suits for administration' 4. Amount claimed tp be endowed, on of estates of deeeased persons. Summons in suits for foreclosure _ ! of Mortgages. ' ■ 11. A»y decree made for sale of land, the a. Bill taken pro eonfesao without notice person entitled thereto, and bound of motion, if no appearance. by the decree, t6 be a Trustee. 6. Causes heard viva voce after issue 12. Provisions ol 17 V. c. 18, sub-chapter joined, on 14 days' notice. Power 4, s. 2, to extend to constructive of Judge to postpone hearing. trusts. 7. Judge to assess amount due in fore- 13. Persons interested in questions cog- i' closure suits, without notice, nizabie in equity, to state speciat where Bill taken pro confesso, un- case for opinion of the Court. / less defendant appKes for refer- 14. Form of special case, and authorityl ence. of Court thereon. / 85 ^^"^''"n- Section, 15. How filed and set down for hearing. 19. Costs of special case. ^"Vf^tl'e'-'^tosnloect to jurisdiction 20. Suits pendin-, not affected by first 17 CnWrlf^A, ■ ■ seven Sections hereof. „„ t S '>^'"™'°? 'juestions raised, 21. Parts of Act 17 V. c. IS, inconsistent and declare opinion, without ad- herewith, repealed. ministeruig retef. Court may re- 22. Process to be served by Coroner. IS Fvl?,?, 'J,'^'^™'"^ V>estion, 23. Books or writings used on a refer- lb. Executor &c. protected, when acting ence, to be evidence before the in runformity with decree made Court. on a special case. Schedule of Form. Passed 20ih April, 1863. Bb it enacted by the Lieutenant Governor, Legislative Council, and Assembly, as follows : — 1. That so much of the fourth Section of Sub-Chapter 2 of an Act passed in the seventeenth year of Her Majesty's Keign, intituled An Act relating to the administration of Justice in Equity, [b) as, requires the bill to be sworn to by the plain- tifl" or his agent, is hereby repealed, except as hereinafter provided. ( 5 ) See sec. 4, Sub-<:;ap. 2, ante, p. 39. 2. Id. Lijunction causes the bill may be sworn to as direct- ed by the said Act, or if not sworn to, the facts stated in the bill may be proved by affidavit, according to the practice of the Court of Chancery in this Province prior to the passing of the said Act. (c) ( c ) See sec. 5, Sub-Cap. 2, ante, p. 39. 3. The sixteenth Section {d) of Sub-Chapter 2 of the be- fore recited Act is hereby repealed ; and in lieu thereof, be it enacted, — When evidence shall be taken before an Exami- ner, or the plaintift' proceeds after issue, on evidence fur- nished by the answer, or the defendant on evidence furnished by the plaintiff's answer to defendant's interrogatories, it shall not be necessary to move for publication ; but on four- teen days' notice by either party, the cause may be set down for hearing at Fredericton, and the evidence may be used without delivering out copies thereof at such hearing. {d) See ante, p. 46. 4. In any suit commenced for the foreclosure ( e ) of any mortgage, the date of such mortgage and the names of the parties thereto, shall be stated in the summons and copy served, and the amount which the plaintiff claims shall be indorsed on such summons and copy, (/) in the following form, or to the like effect : — " The plaintiff claims £ for principal on the within mentioned mortgage, and <£ for 86 interest, from [date of Mortgage, or as the case may be,'] to [date of Summons.] ( e ) Under the reBealefl Act, 2 Vic. c. 28, s. 1, post, It was exjpressly pro- vided tliat on a bill filed for the foreclosure or satisfaction of a mortgage, the Court should have power to decree a sale ; but tinder Sec. 1, Sub-Cap. 5, ante, the words used are, whenever a bill shall be filed, for the foreclosure and sale, the Judge shall have povt^fer t6 decree a sale. It might be open to some doubt, whether this sectioii rei^ders the endorseihent, &c. necessary on biUs for foreclosure and sale ; see sec. i, Sub-Cap. 5, ante, p. 76, where a distinc- tion is made between a suit for foreclosure only and for foreclosure and sale. (/) See Summons ante, p. 64. 5. if the defendaiit in any Siiit does not appear within one month after the filing of the Bill, (g) the plaintiff may move that the Bill be takfen pro confe'Sso, without giving any notice of such motion y so mUch of the seventh Section (5f said Suh- Ghapter 2, as requires fourteen days' notice of motion to be given to the defendant in case of no appearance, is hereby repealed, (h) ■• , ( jr ) This must mean one month after the time for appearance had expired, otherwise, where a bill is filed at the time the summons is issued, as in in- junction cases it may be, the plaintiff would obtain a decree pro eonfesso, be- fore the time given for appearance had expired. jSee sec. 4 &,7, Sub-Cap. 2, pp. 3S, 41. ' . , . ( fe ) feee sec. 7, Sub-Cap. 2, ante, p. 41.' 6. When a cause is at issue by filing a replication, (i) it may be heard on evidence takeii viva voce in open Court at one of the Monthly Sittings, on fourteen days"' notice thereof given by the plaintiff to the iJefehdant of his Sblicitoi-; pro- vided that any judge, oil sufficient ciause shewn, majf order the postponement of such hearing, or that the cause may be heard at' any Circuit Court, on such terms as he"may think iust. ■:'-■' (i) See sec. 15, Sub-Cap. 2, tf/ife, p. 45. ' 7. When a bill filed for the! fbi-eclosure of a ttiortgage is taken pro eonfesso for want of appearance, a Judge iflay assess the amount due on such moft^fage, without any notice therfeof given to the defendant, unless siieh defendant apply for a reference to a Barrister. ( A: ) ' ' (ft) See note (e) supra, and sec. 1, Sub-Cap. 5, ante, p. 74. 8. A Memorial ( I )'(A) of every absolute and unconditional decree of foreclosure, may be registered In the oflice of the Registrar of Deeds of the County where the lands mentioned in such decree are situated; and such Memorial, or a ^6pf thereof, certified by the Registrar, shall be evidence of such decree, in all Courts in the Province. (?) See sec. 38, Sub.'Cap. 2, ftnfe, p. 61, & sec. 2, Sub-Cip. 5, hnte,.p. 75. 87 9. ( m ) It shall not be necessary to file any supplemental bill (n) for the purpose only of stating or putting in issue facts or circumstances' which may have occurred after the commencement of the suit ( o ) ; but such facts or circum- stances may be introduced into the bill filed, by way of amendment, if the cause is in such a state as to allow of an amendment being made in the bill, {p ) and if not, the plaintiff ( q ) shall be at liberty to state such facts or circum- stances on the record, in such manner and subject to such rules with respect to the proof thereof, and the affording the defendant leave and opportunity of answering and meeting the same, as shall be prescribed by any general rule of the Court, (r) ( m ) This is almost a verbatim copy of 53rd sec. of 15 & 16 Vic. c. 86. ( » ) A petition is within the section ; Eobinson v Hewitson, 1 W. E. 100 ; 20 L. T. 154; when, therefore, a female petitioner married after the petition had been stamped and answered, it was held that the petition might be amended under this section, by making it the petition of the husband and wife, without a fresh stamp ; ib. But a fact inconsistent with an exis'ting order made upon a petition cannot be introduced by amendment. Ee Keen, 7 "W. E. 577. ( o ) Before the acts, matter occurring after the institution of the suit could not be introduced on the record by way of amendment ; and in such cases a supplemental bill, involving a new subpoena ^nd si new answer was neces- saiy ; but the Court under this section gave leave to amend a bill after plea allowed by the introduction of supplemental matter, which had occurred since the institution of the suit; Tudway v Jones, 1 K & J. 691 ; 24 L. J. Ch. 507. In Commerall v HaU, 2 Drew. 194 ; 23 L. J. Ch. 631 ; 18 Jur. 141, it was said by V. C. Kindersley that this section did not apply at all after decree, and that it did not apply before decree to bringing new parties before the Court, but only to the settlement of new facts between the same parties. So in an administration suit when the reference to the Master had been already directed, and one of the parties, a defendant, had since died, and administra- tion to his estate had been taken out, V. C. K. was of opinion that it would be necessary to file a supplemental bill against his administrator instead of appending a supplemental statement to the bUl; Heath v Chapman, 17 Jur. 570 ; 1 W. E. 244 ; Cf. Heath v Lewis, 18 Beay. 527 ; but see contra. Hart v Tultz, 2 W. E. 131 ; 22 L. T. 192, in which case, however, a supplemental bUl was afterwards filed. The second proposition laid down in Commerall V Hall, was foUowed in Williams v Jackson, 7 W. B. ip4 ; 5 Jur. N. S. 264 ; and in Nicholson v Gibb, 2 W. E. 337. (p ) The amendments or supplemental statements must not be of such a nature as to contradict the case made by the bill ; Tonso^ v Judge, 2 Drew. 414 ; 2 W. E. 574 ; 23 L. T. 217 ; but see AUen v Spring. 22 Beav. 615 ; and as to amendments of such a nature before the act, Marer v Dry, 2 S. & S 113 ; Watts v Hyde, 2 Ph. 406 ; or alter the nature of the suit, ex. qr. by addin" Butterworth v Bailey, 15 Ves. 358 ; or striking out, Cholmondely v ClintOTi 2 V. & B. 113 ; but see Severn v Fletcher, 5 Sim. 457, a prayer for reUef after answer. But when a biU was ffled asserting a legal right, which on the hearing the plaintiff was ordered to establish at law, it was held on appeal reversing the decision below, that he might introduce by amendment facts existing before, but discovered after t^he institution of the suit, which it was alleged would render the trial at law unnecessary ; Bolton v Eidsdale, 24 L J Ch. 70 ; 2 W. E. 488, overruling V. C. Stuart's decision in the same case, 2 W. E. 451 ; but see MoUett v Enequist, No. 2, 26 Beav. 466. fffS This section does not enable a defendant, even though he have the conduct of a suit, to file a supplemental statement. Lee v Lee, or Lyr v Lyr, 9 Hare, xci ; Langdale v Gill, 1 Sm. & G. 24 ; 16 Jur. 1041. 88 ( »• ) No rules or orders have been made either under this section or any section of 17 Vic. c. 18, ante, prescribing the mode or manner of proceedings thereon, as has been done in England. ' 10. Whenever a decree shall have been made in a euit^by a creditor, next of kin, or legatee, or other party, for the administration of the estate of a deceased person, and it shall appear that the personal estate is insufficient for the payment of the debts of such estate, the Court may direct a sale of the real estate (s) for that purpose ; and in case the Court shall think fit so to order, the costs of the suit, or of such part thereof as may be so directed, may be ordered to be paid out of the proceeds of such sale. (s) See sec. 31, Sub-Cap. 2, ante, p. 58. 11. When any decree or order shall have been made by the Court directing the sale of any land for any purpose whatsoever, every person seized or possessed of such land, or entitled to a contingent right therein, being a party to the suit or proceeding in which such decree or order shall have been made, and bound thereby, or being otherwise bound by such decree or order, shall be deemed to be so seized or possessed or entitled (as the case may be) upon a trust ; and in evefy such case it shall be lawful for the Court, if it shall think it expedient for the purpose of carry- ing such sale into effect, to make an order vesting such land, or any part thereof, for such estate, as the Court shall think fit,, either in any purchaser, or in such other person as the Court shall direct ; and every such order shall have the same effect as if such person so seized or possessed or entitled, had been free from all disability, and had duly executed all proper conveyances and assignments of such land for such e8tate.^[See 15 & 16 Vic. c. 55, ^. i.] 12. The word " trust" {t) in the second Section of Sub- Chapter 4 of the above recited Act, shall extend to and include implied and constructive trusts. CO See sec. 2, Sub-Cap. 4, ante, p. 72. 13. ( M ) It shall be lawful for any person interested or claiming to be interested in any question cognizable on the Equity side ot the Supreme Court, as to the construction of any Act of Assembly, Will, Deed, or other instrument in writing, or any article, clause, matter or thing therein con- tained, or as to the title, or evidence of title, to any real or personal estate contracted to be sold, or otherwise dealt with, or as to the parties to, or the form of any deed or 89 instrument for carrying any contract into effect, or as to any other matter falling within the jurisdiction of the said Court, to concur in stating such question in the form of a special case ( » ) for the opinion of the said C!ourt, in the manner and under the restriction hereinafter contained ; and it shall be lawful for all executors and trustees (w) to concur in such case. ( w ) lliis section is almost a literal copy of 1st sec 13 & 14 Vic c. 35, an i^' Act to dimimsJi tite delay and expense of proceeding In the Hlgt Court of - ' Chancery in Engiand, en unnecessary. 19. Comparison of disputed with genu- ine writing. 20. Affidavit in answer to affidavits in- Tolvingjiew matter. 21. On bearing any motion or summons, production of documents or wit- nesses may be ordered ; 22. Older to have force of Rule of Court ; adjournment and conduct of j)ro- ceedings. 23. Affidavits obtainable by Rule of Court when party refuses ;. . 24. Proceedings on such order. ?5. Production of jiocuments in posses- sion oi adverse party. 26. Act 3 V. c. 65, as to proof of records and Letters Patent, extended to Crown ' inquisitions,* judgments, &c. and records of Court, pf,: Chancery. 37. First four Sections Qf this Act to come in force, on 1st January 1857. Passed 1st May, 1856. Be it enacted by the Lieutenant Governor, Legislative Council, and Assembly, as follows : — 1. On the trial of any issue joined, or of any matter or question, or 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, no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest, from giving evidence either in person or by depo- 93 sition, according to the practice of the Court ; and the parties thereto, and the person in whose behalf any such suit, action or other proceeding 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, shall, ex- cept as hereinafter excepted, be competent and compellable 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 proceeding. 2. ISTothing herein contained shall render any person who, in any criminal proceeding, is charged with the commission of any indictable ojffence, or any offence punishable on sum- mary conviction, competent or compellable to give evidence for or against himself, or shall render any person compellable to answer any question intended to criminate himself; and nothing herein contained shall render any husband compe- tent 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. 3. No husband shall be compellable to disclose any com- munication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communica- tion made to her by her husband during the marriage. 4. Nothing herein contained shall apply to any action, suit, proceeding, or bill, in any Court of Common Law or Court of Marriage and Divorce, instituted in consequence of adultery. 5. All Proclamations, Treaties, and other Acts of State (e) of any Foreign State or of any British Colony, and all judg- ments, decrees, orders, and other judicial proceedings of any Court of Justice in the United Kingdom of Great Britain or Ireland, or in any Foreign State, or in any British Colony, and all affidavits, pleadings, and other legal docunients 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 here- inafter mentioned, that is to say : If the document sought to be proved be a Proclamation, 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 94 Britisli Colony to whicli the original document belongs ; and if tlie document 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 authen- ticated copy, to be admissible in evidence, must purport either to be sealed 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 eyidence 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 s'uch signature and statement. ( e ) Acts of State shall be held to extend to all Acts or Statutes of any Legislature or other governing body of such Foreign State or British Colony. 21 Vic. c. 3, post. See also 22 Vic. c. 20, post, as to the construction of such Acts or Statutes, &c. by a Judge on a trial. 6. Every document which by any law now in force is or shall be admissible in evidence of any particular, in any Court of Justice in England, without proof of the seal or stamp, or signature authenticating the same, or of the judi- cial or official character of , the person appearing to have signed the same, shall be- admitted in evidence t© the same extent and for the same purposes in any Court pf Justice in this Province, or before any person having therein, bylaw or by consent of parties, authority to hear, receive, and ex- amine evidence, without proof of the seal or stamp, or sig- nature authenticating the same,, or of the judicial or official character of the person appearing to have signed the same. 7. All affidavits for the purpose of holding, persons to bail in this Province, or having relation to any judicial proceed- ing in any Court of Justice therein, purporting to be made before a Judge of any Court of Justice in the United King- dom, or in any, Foreign State, or in any British CQlony, if 95 in other respects conformable to law and the practice of the Court in which they are designed to be used, may, notwith- standing 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 law- ful authority in this Province, provided that the same pur- port to be sealed with the seal of the British, Foreign, or Colonial Court, before one of the Judges of which they pur- port to be made, or in the event of such Court having no peal, 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 signa- ture of the Judge and seal of the Court where a seal is ne- cessary, 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. 8. Every register of or declaration made, in respect of any British ship, in pursuance of any of the Acts relating 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 certified under the hand of the person having 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 the payment of the sum of one shilling ; 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 purporting to be signed as required by law, shall be received in evidence in any Court of Justice, or before any person having, 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 96 aforesaid is produced, and of all the matters contained or recited in or endorsed upon such certificate of registry when the said certificate is produced* 9. If any officer authorized or required by this Act to fur- nish 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 be, he shall be guilty of a misdemeanor, and be liable upon con- viction to impirsonment for any term not exceeding three years. 10. Every Court, Judge, Justice, Officer, Commissioiier, Arbitrator, or other person now or hereafter having by law 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 res- pectively. 11. If any person shall forge the seal, stamp, or signature of any document in this: Act mentioned or I'efei'red to, or shall tender in evidence atly such document with a false or counterfeit seal, stamp, or signature thereto, knowing the same to be false or counterfeit, he shall be guilty of felony, and shall on conviction be liable to imprisonment for any term not exceeding three years, nor less than one year; and whenever any such' document shall have been admitted in evidence by virtue of this Act, 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 impounded 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 who shall be charged with committing any offence under this Act, 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 appre- hended or be m custody; and every accessory before or after the fact to any such offence, maybe 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. 12. If any person called as a witness, or required, or de- siring to make an affidavit or deposition, shall refuse or be 97 unwilling from alleged conscientious motives to be sworn, it shall be lawful for the Court, or a Judge, or other presiding presiding officer, or person qualified to take afiidavits or de- positions, upon being satisfied of the sincerity of such objec- tion, to permit such person, instead of being sworn, to make • his or her solemn afiirmation or declaration in the words fol- lowing, videlicet: — ' I, A. B., do solemnly, sincerely and truly affirm and de- ' clare, that the taking of any oath is, according to my reli- ' gious belief, unlawful ; and I do also solemnly, sincerely ' and truly affirm and declare,' &c. Which solemn affirmation and declaration shall be of the same force and effect as if such person had taken an oath in the usual form. 13. If any person making such solemn affirmation or decla- ration shall wilfully, falsely, and corruptly affirm or declare any matter or thing, which if the same had been sworn in the usual form, would have amounted to wilful and corrupt perjury, every such person so offending shall incur the same penalties as by the laws of this Province are or may be enacted or provided against persons convicted of wilful and corrupt perjury. 14. A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall in the opinion of the Judge prove adverse, contradict him by other evidence, or, by leave of the Judge, prove that he has made at other times a state- ment inconsistent with his present testimony ; but before such last mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the par- ticular occasion, must be mentioned to the witness, and he must be asked whether or no he has made such statement. 15. If a witness upon cross-examination as to a former statement made by him relative to the subject matter of the cause, and inconsistent with his present testimony, 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 supposed statement, sufficient to designate the particular occasion, must be men- tioned to the witness, and he must be asked whether or no he has made such statement. 13 98 16. A witness may be examined as to previous statements made by bim in writiDg, or reduced into writing, relative to the subject matter of the cause, without such writing being shewn to him ; but if it is intended to contradict such wit- ness by the writing, his attention must, before sue purposes of the trial as he shall think fit. It. A witness in any cause may be questioned as to whether he has been convicted of any felony or misdemeanor, and upon being so questioned, if he either denies the fact or refuses to answer, it shall be lawful for the opposite party to prove such conviction, and a certificate containing the sub- stance and effect_only (omitting the formal part) of the indict- ment and conviction for such ofi:enee, purpiortiBg to be signed by the Clerk of the Court, of other officer having the custody of the Records of the Court where the offender was convicted, or by the deputy of such Clerk or officer, (for which certifi- cate a fee of five shillings and no more shall be demanded or taken,) shall upon proof of the identity of the person be suf- ficient evidence of the said conviction, withoat probf of the signature or official character of the person appearing to have signed the same. 18. It shall not be necessary to prove by the attesting wit- ness any instrameDt to the validity of which attestation is not requisite, and such instrument may be proved by admis- sion or otherwise, as if there bad been no attesting witness thereto. 19. Comparison of a disputed writing with any writing proved to the satisfection of the Judge to be genuine, shall be permitted to be inade by witnesses; and such writings, and the evidence of vritnesses respecting the same, may be submitted to the Court and Jury as evidence of the genuine- ness or otherwise of the writing in dispute. ■ 20. ¥pon motions founded upon affidavits, it shall be law- ful for either party, with leave of the Court or a Judge, to make affidavits in answer to the affidavits of the opposite party, upon any new matter arising out of such affidavits. 99 subject to all sucli rules as sliall hereafter he made respecting such affidavits. 21. Upon the bearing of any motion or summons it shall be lawful for the Court or a Judge thereof, at their or his discretion, and upon such terms as they or he shall think reasonable, from time to time to order such documents as they or he may think fit to be produced, and such witnesses as they or he may think necessary to appear, and be examined viva voce either before such Court or Judge ; and upon such evidence to make such rule or order as may be just. 22. The Court or Judge may by such rule or order, or any subsequent rule or order, command the attendance of the witnesses named therein, for the purpose of being examinedj or the production of any writings or other documents, to be mentioned in such rule or order; and such rule or order shall be proceeded upon in the same manner, and shall have the same force and effect as other rules or orders of the said Court now have, and be enforced in like manner; and it shall be lawful for the Court or Judge to adjourn the exami- nation 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 maybe in the mode now in use with respect to the viva voce examlination of wit- nesses. 23. Any party to any civil action or other civil proceeding in the said 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 examined upon oath before a Judge, or a person to whom it may be most con- venient to refer such examination, as to the matters con- cerning which he has refused to make an affidavit; and a Judge may, if he think fit, make such order for the attend- ance of such person before himself or before the person therein appointed to take such examination, for the purpose of being examined as aforesaid, and for the production of any writings or documents to be mentioned in such order, and may therein impose such terms as to such examination, and the costs of the application and proceedings thereon, as he shall think just. 24. Such order shall be proceeded upon in like manner as other orders are now proceeded in, and the examination thereon shall be Conducted, and the depositions taken down 100 and returned, as nearly as may be in the mode now used in viva voce examinations. 25. Upon tlie application of either party to any cause or other civil proceeding in the said Court, upon an affidavit by such party of his belief that any document to the produc- tion of which he is entitled for the purpose of discovery or otherwise, is in the possession or power of the oppjosite party, it shall be lawful for the Court or a Judge to order that the party against whom such application is made, or if such party is a body corporate, that some officer to be named of such body corporate, shall answer on affidavit, stating what documents he or they has or have in his or their possession or power, relating to the matters in dispute, or what he knows as to the custody such documents or any of them are in, and whether he or they objects or object (and if so on what grourid) to the production of such as are in his or their pos- session or power, and upon such affidavit being made, the Court or Judge may make such further order therein as shall be just. 26. The provisions of an Act passed in the third year of the Eeign of Her present Majesty, (/) intituled An Act to amend the Law of Evidence in regard to the jproof of Records and Letters Patent, are hereby extended to all inquisitions, surrenders, escheats, leases, licences, judgments, and con- veyances by, to, or from, or in favour of or against the Crown, and to the Records or Rolls of judgment and decrees here- tofore had or obtained in the Court of Chancery by or against the Crown in this Province, or which may hereafter be had or obtained on the Equity side of the Supreme Court by or against the Crown. (/) See 3 Vic. c. 65, post. 27. The first four Sections of this Act shall not come into operation until the first day of January in the year of our Lord one thousand eight hundred and fifty seven. 22 VICTOKIA, CAP. XX. An Act relating to the Law of Evidence. Questions as to construction of Foreign or British Colonial Statutes, how to be dealt with. Passed IZth April, 1859. Be it enacted and declared by the Lieutenant Governor, Legislative Council, and Assembly, — When upon the trial of 101 any cause, civil or criminal, any question shall arise juponl ■• the true meaning or construction of any Statute, Act, oV"'" Ordinance of any Foreign State or G-overnment, or erf the Legislature of any British Colony, Island, or Possession, it shall not be deemed misdirection in the Judge, before whom such trial may be pending, to express his opinion to the Jury upon such meaning or construction in its bearing upon or application to the issue or matter before him for trial, but a Bill of Exceptions may be tendered to the Judge, to be by him sealed as in other cases, or the Court may review and deal with the matter in like manner as if the question had arisen under an Act of the General Assembly of this Pro- vince ; provided always, that no evidence in relation to the construction or meaning of any Foreign or Colonial Law, which would be admissible before the passing of this Act, shall be excluded by reason hereof. 27 VICTORIA, CAP. XL. An Act relating to Affidavits, Declarations and Affirmations made out of this Province for use therein. Section. Section. 1. Appointment of pprsons to take Afii- 5. Affidavit of any Deed, &c. forregis- davits, (fee. out of the Province, tration, hovr made. how made. 6. Informality in form of document not 2. Title of Commissioners. to affect as evidence. 3. Affidavits, &c. taken before certain 7. Tendering false or counterfeit docu- parties, to be valid. ments; penalty. 4. Documents signed and sealed by 8. This Act not to affect Sec. 7, 19 Vic. Commissioners, to be evidence cap. 41. without proof of such signalAire. 9. Not to affect Affidavits Arc. hereto- fore made. Passed 13th April, 1864. Be it enacted by the Lieutenant Governor, Legislative Council, and Assembly, as follows : — 1. The Lieutenant Governor in Council, by one or more Commission or Commissions under his hand and seal, from time to time shall and may empower such and so many per- sons as he may think fit and necessary, to administer Oaths and take and receive Affidavits, Declarations and Affirma- tions in the United Kingdom of Great Britain and Ireland, or in any Colony or Dependency thereof, or in any Foreign State or Country, in or concerning any cause, matter or thing depending in, or in any wise concerning any of the proceedings had or to be had in Her Majesty's Supreme Court of Judicature, at the law or equity side thereof, or in 102 any of the Inferior Courts of Coinmon Pleas,; or in any Sur- rogate's Court, or in any other Court of Record in this Pro- vince, whether now existing or hereafter to be constituted ; and every Oath, Affidavit, Declaration or Affirmation taken or made as aforesaid, shall be as valid and effectual, and shall be of the like force and effect to all intents and pur- poses, as if such Oath, Affidavit, Declaration or Affirmation had been administered, taken, sworn, made or affirmjcd before a Commissioner for taking Affidavits therein, or other competent authority of the like nature. 2. The Commissioners so to be appointed shall be styled Commissioners for taking Affidavits in and for the Courts in the Province of JS'ew Brunswick. 3. Oaths, Affirmations, Affidavits or Declarations adminis- tered, sworn, affirmed or made out of the Province of New Brunswick, before any Commissioner authorized by the Lord Chancellor to administer oaths in Chancery in England, or before any Notary Public, certified under his hand and official seal, or before the Mayor or Chief Magistrate of any City, Borough or Town Corporate in Great Britain orlre- land, or in any Colony of Her Majesty, or in any Foreign State or Country, and certified under the Common Seal of such City, Borough or Town Corporate, or before a Judge of any Court of supreme jurisdiction in any Colony belong- ing to the Crown of Great Britain and Ireland, or any Dependency thereof, or. before any Consul, Vice-Consul, Acting Consul, Pro-Consul, or Consular Agent of Her Majesty, exercising his functions in any foreign place, for the purposes of, and in or concerning any cause, matter or thing depending or in any wise concerning^ any of the pro- ceedings to be had in any of the said Courts of this Pro- vince, shall be as good, valid, and' effectual, and shall be of like force and effect to all intents and purposes, as if such Oath, Affirmation, Affidavit or Declaration had been admi^ nistered, sworn, affirmed or made in this Province, before a Commissioner for taking Affidavits therein, or other com^ petent auth&rity of like nature. 4. Any document purporting to have affixed, impressed or subscribed thereon or thereto, ■ the signature of any such Comniissioner, or the signature and official seal of sihy such Notary Public, or the seal of the Corporation, and the signa- ture of any such Mayor or Chief Magistrate as aforesaid, of 103 the seal and signature of any such Judge, Consul, Vice. Consul, Acting Consul, Pro-Consul, or Consular Agent, in testimony of any such Oath, Affidavit, Affirmation, or Decla- ration having been administered, sworn, or affirmed, or made by or before him, shall be admitted in evidence without proof of any such signature, or seal and signature, being the signature or the seal and signature of the person whose sig- nature seal and signature the same purport to be, or of the official character of such person. 5. Any Affidavit, Declaration or Affirmation proving the execution of any Deed, Power of Attorney, Will, or Probate," or memorial thereof, for the purpose of registration in this Province, may be made before the Commissioner appointed under this Act, or other person authorized hereby to admin- ister or take Oaths, Affidavits, Declarations and Affirma- tions. 6. Xo informality in the entitling or heading, or other formal requisitesof any Affidavit, ( g ) Declaration or Affir. mation made or taken before any Commissioner or other person under this Act, shall be any objection to its reception in evidence, if the Court or Judge before whom it is tendered think proper to receive it. ( §> ) An affidavit if made in a suit, must be correctly entitled in the suit, May V Prinsep, 11 Jur. 1032 ; Saloman v Stalman, 4 Beav. 243, •where a mis- nomer of the defendant in an affidavit of service, was held a ground for dis- charging with costs the order obtained on the motion ; but see Hawes v Bamford, 9 Sim. 653. But in Pearson v Wilcox, 10 Hare, app. xxxv ; 1 W. E. 492, affidavits erroneously entitled were allowed to be taken off the file and resworn without a fresh stamp. If made on a petition under an Act of Parliament (^fx. qr. the Trustee Act) they must be entitled in the act, Mac- kenzie V Mackenzie, 5 DeG. & S. 338. But affidavits filed under a petition, the heading of which has been altered, need not be resworn, Ee Varteg Iron Works Wesleyan Chapel, 10 Hare, app. xxxvii; but may be made evidence in the petition under the new title by a short affidavit referring to them, ib. As to allowing affidavits wrongly entitled to be filed, see Fisher v Coffey, 1 Jur. N. S. 956, where the name of one of -the defendants having been omit- ted in the title, the Court, on proof that no such suit as that described in the title existed, gave leave to file the affidavit. The affidavit must be signed by the party making it ; and when such signa- ture was omitted in an affidavit sworn before a Justice of the Peace In Ame- rica, whose signature was duly certified, the Court nevertheless refused to order it to be filed, Anderson v Stather, 9 Jur. 1085. A marks-man ought not to sign his name at flill length, though his hand be guided, v Chris- topher, 11 Sim. 409. The affidavit of a marks-man may be read though the jnrat does not certify- that it was read over to the deponent, who appeared to understand the same, and inade his mark thereto in presence of the Master, Coy v Gardiner, Parker, M. K. at the Bolls, 7th Aug. 1852. It has been held that if the affidavit contain erasures, such erasures must be proved to have been made before it was sworn, Gill v GlUard, 9 Hare, app xvi ; but see Vorweig v Bareiss, 5 W. R. 250, where interlineations ; and Savage v Hutchinson, 24 L. J. Ch. 232, where erasures, in the recital of the contents of an exhibit were permitted. Sums must be stated in words, 104 Crook V Crook, 1 Jur. N. S. 654. Documents referred to in affidavits, if not set out at length, must be made exhibits, Hewetson v Todhunter, 2 Sm. & G. app. ii. ' The omission of the words "make oath" in the affidavit makes it inad- missible, Philips V Prentice, 2 Hax-e, 542 ; followed, in Be Newton's will, 2 DeG. F. & J. 3 ; 8 W. R. 426 ; 2 L. T. N. S. 350. As to deponent's description of himself in his affidavit, see Boddington v Woodley, 12 L. J. ST. S. Ch. 15, where he described himself as W. S. T. S., Clerk to Messrs. A. B. & C. of &c. Solicitors, and it was held sufficient. An affidavit containing scandalous and irrelevant matter maybe ordered to be taken off the ffle, Goddard v Parr, 24 L. J. Ch. 783. 7. If any person shall tender in evidence any such docu- ment as aforesaid, with a false or counterfeit seal or signa- ture thereto, knowing the same to be false or counterfeit, he shall be guilty of felony, and shall be subject to the punishment by law provided for felony. 8. ISTothing herein contained shall affect or be construed in anywise to affect the provisions of the seventh Section of an Act made and passed in the nineteenth year of the Reign of Her present Majesty, intituled An Act in further amendment of the Law. — [See 19 Vic. c. 41, s. 7, ante.] 9. Nothing in this Act contained shall" affect or be con- strued to affect or make good any Affidavit, Affirmation, Oath, or Declaration, or any other act, matter or thing here- tofore made or done, but the same shall have the same and no other effect than they have or could have, had this Act not been passed. 21 VICTORIA, CAP. III. An Act to compel the attendance of Witnesses under Commissions from other Countries, and in further amendment of the Law of Evidence. Section. Section. 1. Authority for order to attend and 5. Authentication ol acts done by produce papers. Mayors, &c. of Cities. 2. Summons to shew cause for neglect 6. Testimony, when admissible from a to appear. Judge's Notes. 3. Attachment on failure to shew good 7. Copies, without proof of official cause. • character of the Certifier, admis- 4. Certain Acts of State extended to sible in evidence. Acts of Legislature. Passed 12th March, 1858. Bb it enacted by the Lieutenant Governor, Legislative Council, and Assembly, as follows : — 1. Whenever any Commission or Commissions shall be issued from any Court of any other Province, State, or King- dom, for the examiijation of any witness or witnesses in. this Province, by any Cotamissioner or Commissioners named in such Commission, it shall be lawful for such Commisaioner 105 or Commissioners to make an order for the attendance of STich witness or witnesses, with such books, papers, docu- ments, or writings of any kind as may be in the custody, power or possession of such witness or witnesses, to be mentioned in such order, at such time and place as such Commissioner or Commissioners shall appoint. 2. If after any such order shall have been served on any such witness or witnesses, and reasonable expenses ten- dered in the manner prescribed by Law or the practice of the Supreme Court of this Province, for the service of sub- poenas in actions depending in the said Court, such witness or witnesses shall not attend in obedience to such order, and produce and give in evidence such books, papers, docu- ments, or writings, or having attended shall without suf- ficient cause neglect or refuse to give evidence of the matters in question, such Commissioner or Commissioners, or any of them, or the Attorney or Agent of any of the parties to the action, proceeding or suit in which such Commission shall be issued, may apply to a Judge of the said Supreme Court, who shall forthwith, upon an affidavit of such service, refusal, or default, order such witness or witnesses to appear before him at such time and place as he shall appoint, to shew cause why an attachment should not be issued against him cr them for such neglect, refusal, or default. 3. Such Judge shall have full power and authority to issue such attachment, and is hereby required to issue the same, unless good and sufficient cause be shewn to the contrary, and to make such further order in the matter with reference to such witness or witnesses and such examination, and the costs and expenses thereof, and of such neglect, refusal, or default, as he may deem proper, and may order such witness or witnesses to pay all costs and expenses incurred by such neglect, refusal, or default, and enforce such pay- ment by attachment. 4. All Acts of State of any Foreign State or British Colo- ny, mentioned in the fifth Section of the Act of Assembly passed in the nineteenth year of the Eeign of Her present Majesty, intituled An Act in further amendment of the Law, (A) shall be held to extend to all Acts or Statutes of any Legis- lature, or other governing body of such Foreign State or British Colony, and to all written enactments or Laws of the same ; and all the provisions of the said fifth Section of the 14 106 said Act shall be applicable to this Section as folly as if the same were hereby re-enacted. ( 7i ) See ante, p. 93. 5. Whenever it may be necessary to authenticate any act done by any Mayor or Chief Magistrate of a City, under the Corporate Seal of such City, whether to be used as evidence in any Court, or for the purposes of Eegistry in any Registry of Deeds in this Province, or otherwise, the Seal of the Mayor of the said City, or Chief Magistrate, shall be a suffi- cient authentification of such act, unless the act done be a corporate act. 6. On the trial of any cause, the testimony of any witness given on a former trial thereof, may be given in evidence between the same parties from the Judge's notes, if the Judge on the subsequent trial shall be satisfied that the wit- ness is dead or out of the Province, or from sickness or infir- mity is unable to attend, subject to all legal exceptions ; Whenever such notes shall be required on any trial, notice thereof shall be given to the Judge who took the same, and the said Judge may produce and read the same in Court, or transmit them to the presiding Judge, to be read by him on such subsequent trial. 7. A copy of any record, document, writing, or any part thereof, filed or deposited in any public office in this Pro- vince, certified by the officer having charge thereof, or his deputy, to have been carefully compared with the original, and to be a true- copy, shall, without proof of his official character or hand writing, be evidence in any Court of Law, in lieu of the original, or an exemplification, or an examined copy of the same. 3 VICTORIA, CAP. LXV. An Act to amend the Law of Evidence in regard to the proof of Eecoids and Letters Patent. Section. Section. 1. Parts of Reeords when exemplified, 4. When copy of Plan may be annexed. and evidence. 5. Nova Scotia O-rants, how copies to 2. Record of Grants, when copy evi- be evidence. dence. 6. Costs of, how allowed. 3. When part thereof sufficient. Passed Slst March, 1840. Whereas unnecessary expense is frequently incurred in the exemplification of Judgments in the Supreme Court; — 107 Be it enacted, ^c— 1. When parts only of Records or Eolls of Judgments in tbe Supreme Court may be necessary to be given in evidence, exemplifications of such parts which may be so necessary may be received in evidence in any Court in this Province, without requiring the whole of the Record or Roll to be exemplified. 2. And whereas much expense is often incurred in pro- curing exemplifications under the Great Seal of Grants of Land by the Crown in this Province ; — A copy from the Record of any such Grant in the Office of the Secretary and Register of the Province, duly certified under the hand of euch Oflicer, as having been examined by him with the Record, and found to be correct, or duly proved by any wit- ness who shall have examined the same with the Record, shall be deemed and taken to be as good and sufficient evidence of such Grant or Letters Patent as an exemplifi- cation thereof under the G;reat Seal. 3. In the proof of title from the Crown by an exemplifi- cation under the Great Seal, or by a certified or an examined copy as is hereinbefore provided, it shall not be necessary to exemplify or copy the conditions contained in such Letters Patent, on the part of the grantees, their heirs and assigns, to be observed and performed, or any other clause in the said Letters Patent which may not be pertinent or relevant to the matter in question ; and that no such exemplification or copy shall be rejected in evidence on account of the omission of such clauses, provided such omission do not prejudice the opposite party, or affect the merits in question. 4. Provided always, that when the said Letters Patent or Grant refer to any Plat or Plan as annexed thereto, no exem- plification or copy of such Letters Patent or Grant shall be received in evidence, unless there be annexed thereto a true transcript or copy of such Plat or Plan, unless it be proved by the certificate of the Secretary and Register, or otherwise to the satisfaction of the Court at which the evidence may be tendered, that there is no such Plat or Plan entered with the said Grant or Letters Patent in the said Ofllice of the Secretary and Register. 5. Grants of Land heretofore made under the Great Seal of Nova Scotia, prior to the erection and establishment of this Province, and registered in the Office of the Secretary and Register pursuant to an Act passed in the twenty sixth 108 year of the Iteign of King George the Third, intitled An Act for the registering of Letters Patent and Grants made under the Great Seal of the Province of Nova Scotia, of Lands now situate within the limits of this Province, may be proved by certified or examined copies thereof, or of the material parts thereof, in like manner as hereinbefore provided in respect to Grants passed under the Great Seal of this Province. 6. . The expense of any exemplification, or copy of any Roll, Record, or Letters Patent, or any part thereof, or of any Plat or Plan given in evidence by virtue of this Act, may be charged and allowed in the taxation of costs in whole or in part by the taxing officer of the Court wherein the suit may he pending, whose decision thereupon may be reviewed by the Court as in ordina;ry cases. STATUTES REPEALED BY 17 VICTOEIA, CHAPTER XVin; Sub-Chapxer 7, ante, p. 79. Note. — Wliere any Section of these Acts is not published in full, the marginal reference only is given. 1 VICTORIA, CAP. VIII. An Act to authorize the appointment of a Master of the Rolls to the Court of Chancery in this Province, and to provide for such Officer. Passed 9th March, 1838. "Whereas it is deemed expedient that a Master of the Rolls should be appointed to the Court of Chancery ; — 1. Be it tljerefore enacted by the Lieutenant Governor, Legislative Council, and Assembly, That it shall and may be lawful for His Excellency the Lieutenant Governor, and he is hereby fully authorized and empovt^ered immediately after the passing of this Act to appoint, and in case of a vacancy by death, resignation or other cause, to appoint anew, a Master of the Rolls to the Court of Chancery in this Province, who shall hold his office during good behaviour : Provided always, that such person so from time to time appointed shall be a Barrister of at least ten years standing. 2. And be it enacted, That the Master of the Rolls to be appointed under the provisions of this Act, shall have the like powers and authority, in respect to the Court of Chan- eery in this Province, that the Master of the Rolls in England has in r.espect to the like Court in that country, except so tar as the same shall or may be altered, enlarged, curtailed, or regulated, by any enactment of the Legislature of this Province, at this or any subsequent Session. 3. And be it enacted. That the Master of the Rolls for the time being, in all cases, except on appeals from his decision and hearings thereon before the Chancellor, shall be and be deemed the responsible adviser and judge of the said Court of Chancery, and shall sign all rules, orders and decrees made by him therein, and the signature of the Chancellor, except in the cases aforesaid, shall not be necessary to the validity of any such rules and orders in any cause, or to any 110 decree made in the absence of the Chancellor from Frede- ricton : Provided always, that the enrolment of all decrees shall be signed by the Chancellor, to whom the same shall be presented to be signed for enrolment. 4. [£800 per annum granted as a salary.] 5. [To be paid quarterly by Warrant on the Treasury.] 6. And be it enacted, Thafethe said salary so to be allowed and paid as aforesaid, shall be in full and in lieu ot all fees and emoluments whatsoever as such officer ; nor shall it be lawful for such Master of the Rolls hereafter to take and receive any fee or emolument for or in respect of his said situation as Master of the Kolls, or as a Master in Chancery, other than the salary granted by this Act. 7. [Master to be ineligible to a seat in either Council or House of Assembly.] 2 VICTORIA, CAP. XXXVII. An Act in amendment of the Act relating to the appointment of a Master of the Rolls in the Court of Chancery. Passed 23rd March,, 1839. 1. [Right of appointment of the Master of the Rolls vested in the Queen's Majesty.] 2. [Act not to authorize the cancelling of the appointment already made ; proviso for provisional appointment in case of vacancy.] 3. And whereas it is deemed necessary for the conve- nience of suitors and the despatch of business, that the Master of the Rolls should reside where the Court of Chan- cery sits ; — Be it therefore enacted, That from and after the first day of October next, the usual place of residence of the Master of the Rolls shall be in the place where the Court of Chancery sits, and not elsewhere. 2 VICTORIA, CAP. XXXV. An Act for the improvement of the Practice in the Court of Chancery. Passed 2Srd Mmrch, 1839. Whereas the Practice of the Court of Chancery is in many respects dilatory and expensive, and ill adapted to the state of the Province, and requires extensive alterations and amendr ments; — Ill 1. Be it therefore enacted by the Lieutenant Governor, Legislative Council, and Assembly, That the Chancellor, by and with the advice and consent of the Master of the Rolls, shall have full power and authority from time to time to direct and declare the forms of process, and to prescribe, modify, alter and amend the practice and proceedings to be observed in all matters of which the said Court now has or hereafter may have cognizance and jurisdiction. 2. And be it enacted. That there shall be three Terms of the said Court in each year, that is to say : Hilary Term, to commence on the last Tuesday in January and to end on the Saturday then next ensuing; Trinity Term, to commence on the first Tuesday in June and to end on the Saturday then next ensuing; and Michaelmas Term, to commence on the first Tuesday in October and to end on the Saturday then next ensuing ; and that causes and other matters to be heard in the said Court may be brought to hearing and heard and determined in vacation as well as in term, under such regulations as may be established in that behalf by the rules and orders of the said Court. 3. And be it enacted, That the common gaol of the County of York shall be the prison of the said Court ; pro- vided always, that in case it shall be expedient and the ends of justice be thereby answered, any prisoner of the Court may be committed to the common gaol of any County within which he may have been arrested, in case the Court shall so order and direct. 4. [Sherifis of the several Counties to serve writs, &c.] 5. [Sheriffs, &c. to be aiding the Court.] 6. And be it enacted. That in case the plaintiff, in any suit commenced or to be commenced in the said Court, shall neglect to proceed in the same in due time, according to the practice of the said Court, the Bill may be ordered to be dismissed, and in case the defendant shall neglect to appear in due time after service of process, or shall neglect to put in his answer, or to take any other necessary step in the cause, within the time in that behalf limited by the practice of the said Court, the Bill may be ordered to be taken against him as confessed, subject nevertheless to such regulations and restrictions as may be established and provided in that behalf by the rules and orders of the said Court. 112 7. And be it enacted, That tHe several Masters in ordinary in this Court now appointed, or hereafter to be appointed, shall have power to act as examiners in the said Court ; and in any case where, from the remoteness of residence of any examiner from the place of residence of the witness, or other circumstance, it may be deemed expedient, the Chancellor or Master of the EoUs shall have full power and authority, by order of the said Court, specially to appoint some other person or persons pro hac vice, who shall have power to administer the oath to the witnesses and take the examina- tion in such cause : Provided always, that no examination be taken by any examiner, until such examiner shall have been first duly sworn according to the rules and regulations of the said Court to be established in that behalf. 8. And be it enacted. That the examination of witnesses in matters pending in the said Court to such extent and subject to such rules and regulations as may in that behalf be prescribed and established, may be conducted on questions suggested and proposed at the time of examination, and be attended by the parties, their Solicitors and Counsel. 9. And be it enacted, That all moneys that shall become subject to the control and distribution of this Court, shall be paid into the hands of such person or body corporate or politic as the Master of the Eolls shall from time to time direct, or be vested in such securities as the Master of the Eolls shall approve, and all interest or increase accruing thereon shall be added to the principal and distributed therewith to the person entitled to the same, subject to such rules and regulations as may be established in that behalf. 10. And be it enacted, That where in any suits pending in the said Court the cause of action shall survive, such suit shall not abate by reason of the death of one or more of the plaintiffs or defendants, but upon suggestion of such death to the Court the suit shall be allowed to proceed in favor of or against the surviving party as the case maybe; and in case of the death of one or more plaintiffs or defehdaiits in any suit where the cause of action shall not survive, it shall only abate as to the person or persons so dying* and not otherwise. 11. And be it enacted, That in all cases where it shall be necessary to revive a suit against the representatives of a deceased defendant, no bill of revivor shall be necessary, 113 bnt the Court may by order direct that the same stand revived, upon the petition of the plaintiff, subject to such rules and regulations as may be made in that behalf. 12. And be it enacted. That the said Court shall have power to enforce performance of any decree, or obedience thereto, by exegution against the body pf the party against whom such decree is made^, or against the goods and chattels, and in default thereof the lands and teiiftments of such; which execution so issued shall have the like effect as exe- cutions issuing out of the Supreme Court of the said Pro- vince ; and every person so imprisoned under. aj1y execution issuing out of the said Court of Chancery shall be entitled to the like benefit of any statute made for tli'e relief of insolvent debtors, as if arrested under process of the said Supreme Court. .13. And be it enacted, That iu all matters relating to the practice of this Court, not otherwise particularly prUvid&i for by Legislative enactment or the rules and orders of this Court, the rules of practice of the High Court' of Chancery in Eng- land, as now established, shall be in force, subject neverthe- less to the like exceptions, limitations, restrictions and rules of construction in the application of the same as the practice of the said High Court of Chancery prevailing, j^nd in force at the time of the erection of this Province haVe heretofore been, and subject to be altered, modified and restricted by • such rules of practice as may be hereafter from time to time introduced and. established in the Court of Chaiicery of this Province by any Act or Acts of the General Assembly, Or the orders of the said Court. 14. And be it enacted. That from and after the passing of this Act it shall and may be Jawful for the Chancellor, by and with the consent of the Mastier of the Rolls, to prepare and make a proper table of fees for the Court of Chancery in this Province, iii lieu of the table of.fees at present estab- lished in that Court, which table of fees so to be made and established as aforesaid shall be in full force and effect from the time notice thereof shall be given by the jVfaster of the Rolls iu the Royal Gazette, until altered by any Legislative enactment in ttis Province. 15 114 52 GEOKGE III, CAP. XIX. An Act to amend an Act intituled An Act to provide for the more easj partition of Lands in Coparcenary^ Joint Tenancy, and Tenancy in Common. Passed Ith March, 1812. "W^HERBAS by tte first section of an Act made and passed in the fiftieth year of His present Majesty's Reign, intituled An Act to provide for the more easy jpariiiiori of Lands in Co- parcenary, Joint Tenancy, and Tenancy in Common, it is enact- ed, ^' that upon the petition of any one or more coparceners, joint tenants, or tenants in common, to ■^he Supreme Court, praying a division of the lands in which they may he inter- ested, to the proprietors in severalty, according to their res- pective shares and rights, it shall and may he lawful for the said Court to examine the title of the petitioners preferring such petition, and the quantity of their respective parts and purparts, and accordingly as they shall find their respective rights, parts and purparts to be, to award a writ of partition, as nearly as may be in the form for that purpose established in the register of Judicial "Writs :" And whereas the said recited part of the said Act has been found to be incon- venient ; — 1. Be it therefore enacted by the President, Council, and Assembly, That the same part of the said Act be and the same is hereby repealed. 2. And be it further enacted, That from, and after the first day of May next, all proceedings at law for partition betweea coparceners. Joint tenants, and tenants in common, shall commence by Writ issuing out of the Supreme Court, as nearly as may be in the form of the "Writ of Partition issuing out of the Couft of Chancery in Engknd, and after such Writ of Partition returned, and affidavit being made by any credible person, of due notice given of the said Writ of Par- tition to the tenant or tenants to the action, and a copy there- of left with the occupier, or tenant or tenants, or if they can- not be found, to the wife, son, or daughter, (being of the age of twenty one years or upwards) of the tenant or tenants, or to the tenant in actual possession, by virtue of any estate of freehold, or for term of years, or uncertain interest, or at will, of the lands, tenements, or hereditaments, whereof the partition is demanded, (unless the said tenant in aotual pos- session be demandant in the action,) or if no such person can be found, by publishing such copy in the Royal Gazette at 115 c ast thirty days before tlie day of the return of the said writ of partition, if the tenant or tenants to such writ, or any of them, or the true tenant to the messuages, lands, tenements and hereditaments as aforesaid, shall not in such case, on or before the first day of the term next after the return of such writ, cause an appearance to be entered, then in default of such appearance, the demandant having entered his declara- tion, the Court may proceed to examine the demandant's title and quantity of his part and purpart, and accordingly as they shall find his right, part and purpart to be, they shall for so much thereof give judgment by default, and award a writ to make partition, and such proceedings shall be had thereon in every respect as are directed in and by the said herein before recited Act, any thing herein before contained to the contrary thereof in any wise notwithstanding. 3. And be it further enacted. That if such defendants or tenants shall appear, the cause shall proceed according to due course of law, and upon judgnaent that partition be made between the parties to such action, a writ to make partition shall be in like manner awarded, and the same shall be executed in euch manner and form as are particularly mentioned and directed in and by the same Act, any thing in the same Act contained to the contrary thereof in apy wise notwithstanding. 4. And be it further enacted, That the Sheriffs respectively shall give twenty days' notice of the writ to make partition, instead of forty days as required by the first section of the said in part recited Act. 5. And be it further enacted. That the said herein before recited Act, and every clause, matter and thing^herein con- tained, not altered or amended by this Act, shall be and remain in full force, any thing herein before contained to the contrary thereof in any wise notwithstanding. 2 VICTORIA, CAP. XXXVI. An Act relating to the partition of Lands, tenements and hereditaments held in coparcenary, joint tenancy, and tenancy in common. Passed 23rrf Marph, 1839. Wheebas the present mode of proceeding for the partition of lands,; tenements, and hereditaments, held in coparcenary, joint tenancy, and tenancy in common, has been found incour venient; — 116 i. Be it etiaeted by the Lietitenant Governor, Legislative Council, and Assembly, That from and after the passing of this Act, the partition of lands, tenements, and heredita- ments, held in coparcenary, joint tenancy, or tenancy in common, shall be effected by the Court of Chancery accord- ing' to the pfadtiee and proceedings established oi to be established in that Court. ' ' 2. And be it enacted, That in ease any of tb6 parties to any proceeding iil the' said Court of Chancery for a partition, shall be infairits under the ag^e of twenty one years, it shall and may be lawful for the siaid Court to appoint a guardian or guardians ad litem for such infant, in like mannei* as such guardian- miay be appointed' in any other suit in the said Court. ' 3. And be it endcted. That the decree of the said Court, whereby any part or portion of lands,' tenements Or heredita- ments held in I cb^arcenary, joint tenancy-j Or ten&ricy in common, shall be decreed to any coparcener, joint teCant, or tenant in common, in severalty, shall operate and be effectual to cokvey iahd transfer to such Coparcerier, joint tenant, or tenant in common, all and singular the right, title, interest property, claim and demand of dll and every other of the crijiarcehers,' joint te'nants, ' or tenants in eommoii, as such interested therein, as well infants and feme coverts as bthei-s being pities to such proceeding, in as full and ample a taiannef as if the same had be^n conveyed arid transferred by deed or coiiveyatlce, dtily Signed; sealed- and delivered by such othep coparceners,, joint tenatrti, and tenants in com- mon, and duly proved or acknowledged, and' registered in the County'where such part, of portion- of the 'Ikfi'dg may lie, and in the case iqf iiifants iii like manher as if such infants were at the time of full age^' Provided alwp,ys, that such decree shalll have been first duly signed arid enrolled, arid registered in the OflSce of Eegister of Deeds of the County where the lands may lie, acbording to the pi-ovisions herein- after contained, j 4. And be it enacted. That any decree of the said Court of Chancery, hiaving been first duly signed and enrolled, may be registered in the Office of the Register of Deeds for any County in like manner and order, as any deed or con- teydiiicfe/, tiybri pi-odtiction to the Register of Deeds of a copy thereof, with a certificate indorsed thereupon, of the Regi^trai- 117 of the Court of Chancery, under the seal of the said Court, that the same is a true copy of a decree of the said Court, and that the same has been duly signed and enrolled ; and the Register of Deeds shall indorse upon such copy a certifi- cate of such registry in like manner as is required by law, in respect of any deed or conveyance duly registered, and for his services in that behalf shall be entitled to the like fees and emoluments as are provided in the case of the registry of deeds and conveyances ; and such copy of such decree, with such certificates thereon, shall he evidence in all Courts of Law and Equity in this Province, of such decree and of such registering thereof; and a copy from the County Registry of such decree, duly certified by the Register of Deeds, shall be admitted in evidence in such cases and under such rules and restrictions as a copy of a registered deed taken from such County Register would be so admitted. ■" i 2 VICTOKIA, CAP. XXVIII. An Act to authorize the Sale of Mortgaged Premises by the Court of Chancery, and directing the application of the proceeds thereof. Passed 2Brd March, 1839. Be it enacted by the Lieutenant Governor, Legislative Council, and Assembly, — That whenever a Bill shall be filed in the Court of Chancery for the foreclosure- or satisfaction of a mortgage, the Court shall have power to decree a sale of the mortgaged premises, or such part thereof as may be sufficient to discharge the amount due on the mortgage and the costs of suit. 2. [Sales aid conveyances to be made by a Master under direction of the Court ; conveyances may be registered in the County Register, and ■when given, in evidence to be evi- dence that all the proceedings were rightly had and done.] 3. And be it enacted, That the proceeds of every sale made under the decree of the Coitrt of Chaticery as aforesaid shall be applied to the discharge of the debts adjudged iby such Court to be due, and of the costs awarded ; and in daee there shall b6 any surplus, it shall be brought into Court for the use of the Mortgagor Or of the person who may be entitled thereto, subject to the order of the Court. 4. And be it enacted, That when any Bill shall be filed for the foreclosure or satisfaction of any mortgage upon which there shall be due any interest or portion only of the 118 principal, the Bill maybe ordered to be dismissed, upon the defendants bringing into Court, at any time before the decree, the principal and interest due, with costs ; and in case the same shall be brought into Court after a decree, and before a sale, further proceeidings thereupon shall be stayed ; but the decree shall stand as a secuTity for such further sums as may thereafter fall due on the moftgagie, and upon any subsequent default of payment thereof, may be enforced by the further order of the Court for the sale of the mortgaged premises, or of such part thereof as shall be necessary from time to time, until the amount secured by the mortgage, and the costs of the proceedings thereon, shall have been fully paid and satisfied. 5. And be it enacted. That if in any of the foregoing cases it shall appear to the Court that the mortgaged premises are so situated that the sale of the whole will be most bene- ficial to the parties, the decree shall in the first instance be entered for the sale of the whole premises accordingly ; and in such case the proceeds of such sale shall be applied as well to the payment of the amount due and of the costs of suit, as towards the residue of the sum not due at the time of such sale ; and if such reBid,i;ie do not bear interest, then the Court may direct the same to be paid with a deduction of the rebate of legal interest; for the time during which such residue shall not be due and payable. 6. And be it enacted, That in case of subsequent incum- brances affecting any mortgaged premises whiqh may be sold under the decree of the said Court by virtue of this Act, the residue of the proceeds which may rema,in after the discharge of the first mortgage thereon shall be subject, under the ordet and direction of the said Court, to the claims of the holders of such subsequent incumbrances according to , their due priority, whether the same be due and payable or otherwise, subject to the like rebate of interest in case of sums not payable, whep thjB same do not bear interest,' as is provided in the fifth section of this Act. 7. And be it eniacted,, That all sales of any mortgaged premises made under the authority of this Act, shall be made by public auction, of which not less than thrfeie months notice shall belgiyen. ' i, 119 26 GEORGE III, CAP. XIV. An Act for prevention of Frauds and Perjuries, (a) (ff) Eepealed by Title il, Cap. 162, 1 Eev. Stat. 468. at^^ml^!^"^^^ *""* interests of Freehold shaU have the effect of Estates 2. Except leases not exceeding three years. 3. Leases, &c. not to be assigned, &c. but in writing. 4. Ko action to be brought on special promise of Executors, &c. on promise to answer debt of another; on sale of Lands, &c. on agreement not to be pertormed m one year, or promise of marriage, unless in writing. 5. Declarations of trusts of Lands, not in writing, void. G. Trusts, &c. arising, transferred or extinguished by operation of Law G XC6pi6 CI • 7. Grants, &c. of trusts not in writing, void. 8. Sheriff to deUver Execution of Lands, &c. of which other persons are seized in trust for him against whom such Execution is sued. If cestui que trust die leavmg a trust in fee simple, such trust shall be deemed assets by 9. Heir not chargeable out of his own Estate by reason of an Estate or trust made assets by this Act ; but such assets liable as at Common Law. • ^Z' ?^*^*^ P""^ ^^^^^ ^ie, deviseable by WUl ; and if no devise chargeable m the hands of the heir to whom it comes by special occupancy, if no special occupant shall be assets in the hands of Executors or Administrators. 11. Judge or officer of Court signing Judgments to set down the day of the month, &c. 12. Such Judgments as against bona flde purchasers to take effect from the time of signing. 13. Writ of fieri facias, not binding but from the time of delivery to the Sheriff, such time to be endorsed on the same. 14. Contracts for sale of Goods, &c. 15. And bo it iurther enacted, That the day of the month and year of the enrollment of the recognizances, shall be set down in the margent of the roll, where the said recognizances are enrolled, (b) and that no recognizance shall bind any Lands, Tenements or Hereditaments, in the hands of any purchaser bona fide, and for valaable consideration, but from the time of such enrollment, any Law, usage or course of any Court to the contrary notwithstanding, (c) ( & ) The inrohnent of a recognizance would seem to be the same as that of a decree, viz., engrossing the same word for word on parchment, and filing with the proper ofi3cer, together with the recognizance itself, (see infra ;) without inrolment a recognizance is not a matter of record, but remains only as a simple hgnd against the parties executing the same. Glynn v Thorpe, 1 B. & Al. 153 ; Barthomley v Fairfax, 1 P. Wn. 334, 340 ; and cannot take priority as a record in the administration of assets, ib. A record is a memo- rial or remembrance on rolls of parchment, of the proceedings and acts of a Court of Justice, which hath power to hold plea secundum legim et consuetu- dinem angles. 1 Inst. 260 ( a ) ; 4 Inst. 79 ; 2 Com. Dig. Chan. 213. If a recognizance be not properly vacated by the Court, and the order fbr such vacation duly inroled, the parties thereto, under certain circumstances, may at any distant period be held liable for subsequently discovered errors, &c. 1 Tur. Chan. 471. By analogy to the proceedings in the inrolment of decrees or orders, (see infra,) it would seem necessary that the proceedings of the Court under which the recognizance is taken, should be formally drawn up and signed by 1-20 the Judge who made the order, and these proceedings copied on parchment, signed by the Clerk, and filed in his office. By Rule of Court 1674, (still in force in this Province,) and now incorpora- ted in the consolidated orders in England, it is ordered " that no recognizance acknowledged in this Court, of what nature or kind soever, shall be enrolled therein after six months from the ficknpTvledgment thereof, except under special circumstances, and by an order made "by the^Court upon motion for the enrollment thereof after that time," Morg. 592 ; and by another Rule of the last mentioned Order, the .Clerk of the inrblments shall attend with the recognizance to be vacated ; *.. In making an order for inrolment after the expiration of six months the Court vrUl always take care not tolivirt an intervening purchaser, 1 P. Wn. 3^4, areie ; 1 othergill y Hendrick, 2 Vern. 234. . Upon a recognizance given by a Beceiver, the practice' was that the receiver and his sureties must pefrsOnaHy iattend' and enter into the recognisance be- fore the Master; and the sureties must justify by affidavit of their sufficiency ; in the country the recognizance, &c. may be taken before a Master extraor- dinary, the recognizance is then oai:ried bythe Master'.?, clerk, to the Enroll- ment Qflice In Chancery, enrolled there, and a receipt taken,. 1 Tur. Chani. 456. A feiiognizarice upon a ue.' exeat. regno, is prepared upon instructions from the defen^kht's solicitor, by the clerk to the senior Master, before whom the recognizance IS to be acknowledged, andby Whiom itisinfolled, I'Tur.Cha. 990. A recognizance by guardian to infant's person and property would seem to be subject to the same rules. ' On the hearing of the petition an order will be inade confirmingthe report, and appointing the person proposed guardian on his entering into a recogni- zance duly to account for the infant's property and fortune. The order must be drawn up, passed and entered at the Register's office, and a copy left with the Master, vhose ?lerk wiU prepare the recogniza,nce.an.d. see that. the same is duly entered, 1 Tur. Cha. 676. , Enrolment of a deed under 27 Jlen. 8, c. 16, Is by engrossing on parchment and depositing them wllli the proper officer in one of the Supreme Courts, or by the Clerk of the Peace with fhe Gustos Botulorum of the County. ' Enrolment of decrees only having' been abolished (vide ante, p. 60,) the following directions may be found useflil for the' purposes of ascertaining what maybe still necessary in reference to preliminaryjproceedings in matters of decree as well as in avders, especially as it w^ould seem necessary still for the Clerk before he makes entry of hfi substituted abstract in the book, to make up the de " A decree is the final orderof the Court determining the rightof the matters in qnestion upon a full hearing, agreeable to equity, and ordering tl^e parties accordingly. It is pronounced m oppn Couft by the Lord Chancellor, J^eeper, Eirst Commissioner, or Master of the Rolls; and it is minuted down by the Register thei;i sit(;iij^ in Court;, wto afterwards usually re^ds the same to the Court, and if any mistake do thereupon appear, the same is forthwith recti- fied. Afterwards, the Register being applied to, and a brief of the pleadings being le^ with him at the office, he, thereupon .draws up tiie decree in form, according to the pleadings and m^inutes in the cause, and commonly issues a note to the adverse party that Jip may take a copy, if he tiinks fit, and attend him before the same is passed." 2 Har. CKan. 161, 121 " Tlie decree being passed, is to be left mtli the cnterinc; Kegister to be entered within months, or else you will be obliged to obtain an order that the same may be entered mine pro tunc ; after which it may be signed and inroUed ; and until it be sig-ned and inroUed it has only the power of an interlocutory order ; and is not tinal, and may be altered on a rehearing, or sometimes upon motion or petition." 1' Har. Chan. 162. The Court pronounces the decree, minutes of which are taken down in writing by the Register, which tlie Rules and Orders direct to be read openly in Coiu-t. 1 Tm-. Chan. 309. Every decree before it can be enrolled must be signed by the Lord Chan- cellor, although made by the Master of the Rolls, Vice Chancellor, &c.— 1 Tur. Chan. 734. Enrollment is the engrossing the decree on parchment, and leaving it with the proper officer. 2 Mad. Chan- 464. Any person (although not a party to the suit) if interested in, and a party to an order, may enrol that order. The party desirous of enrolling a decree or order, leaves the same, or an office copy duly passed and entered, with his Clerk in Court, who wUl inform him what orders, reports and papers will be required. From these and the pleadings in the cause, the Clerk in Court prepares the docquet of the eni'olment, which is examined by the senior Clerk, and signed by him. The docquet is then left with the Secretary of Decrees for signature. If the decree or order was made by the Master of the Rolls, the Secretary procures his signature to the docquet, after which he procures the signature of the Lord Chancellor. If the decree or order was made by the Vice Chancellor, or Ijy the Lord Chancellor, it is only signed by the Lord Chancellor. The docquet when signed is returned to the Clerk in Court and is afterwards copied on rolls of parchment. These rolls' and the docquet are preserved among the records of the Court. 2 Smith, Ch. 2nd ed. 3. As soon as the decree is signed by tie M. R. (which he always does if he pronounced the decree) and also by the Lord Chancellor, (which must be done in all cases) you carry the decree to the ClerJc of the C hapel of the Bolls, who, according to" the length of the decree, gives you as many parchment roUs as will inrol the decree ; the Clerk of the Rolls usually writing upon 'the last sheet of the decree, which is called the docquet, the day and year and his name thereto, as a memorandum that he has delivered such rolls, on which rolls the plaintiff's clerk in Court, or his clerk or agent, engrosses the decree in a strong Secretary hand, (which before the late Act of Parliament were always enrolled in a good Chancery hand,) which must be word for word as in the docquet or decree ; but there is no occasion to write in the enrollment the M. R. or the Lord Chancellor's names, but only to conclude with the' end of the decree; and when the enrollment is carefully examined with the docquet of the decree, the plaintiff's clerk in Court may carry both over to the Clerk of the Rolls Chapel, who will receive them, and give you a receipt for them if you desire it ; in whose custody both the docquet and inroUment are to remain for any one at any time to inspect and take a copy thereof if he requires it, upon paying the Clerk of the Chapel for the seal thereof, and also for such copy." 2 Har. Chan. 173. (c) By the repeal of this section recognizances (as before the passing of this Act) would bind the lands, &c., from the date of the recognizance, see liowever Tit. 3, Cap. 6, 1 Rev. Stat. 24, s. 3. where it is enacted that— " The lands of the debtor shaJl be bound in cases of specialties from the date thereof, which date shaU be set forth in the proceedings and judgment, and in case of simple contract debt from the time of signing the judgment." By the repeal of this A«t the titles of purchasers from cogrdzors after the date of the recognizance, are rendered more liable to be impugned by cognizees, as they lose the protection of the Court when enrolment is delayed for six nionths. The docket is adraft copy of the decree, from which the enrolment is taken, and must be carefully compared with the several pleadings and records which it recites, by th« same Clerk who prepares it; and who certifies its correct- ness by his signature on the last sheet, previous to its bemg presented to tlie Lord Chancellor. Lub6, Analy. Eq. PI. 166. ^ „ „ . The enrollment is that which gives the decree its full efficiency; previous to which it has only the force and effect of an interlocutory order ; where- fore the decree is not pleadable until after it is enrolled. lb. 167, citing 3 Atk. 809. 16 122 As to enrolment of deeds under 27 Hen. 8, c. 16, see Doe dem Hanningtoa V M'Fadden, Bert. E. 153, where tlie Court gave very full and elaborate judg- ment, and held that that Act, as well as the Statute of Uses, was in force in this Province. Although some of the proceedings upon forfeited recognizances, now that the Court of Chancery has been abolished, an4 its jurisdiction and powers transferred to the Supreme Court, must necessarily become obsolete, yet the following extracts in reference to such proceedingis may nat be found unac- ceptable to the profession. All debts due the King bind feom the time the same are contracted ; for the debts that were of record always bound the lands and tenements, and the debts not of record by 33 Henry 8, c. 39, bind as a Statute Staple ; for all lands being held mediately or immediately fpom the King, when therefore any debt was recorded of any person, it laid the estate as lk,ble to such debt as if it had been a reservation on the first patent ; and therefore as the King eould seize for the non-payment of the reserved rent, so he could seize the land for any debt with which the land was charged. Ch. Baron Gilbert's Excheq. 88. When an obligation is acknowledged in a Court of Record, such recogni- zance is the same as a judgment. The conusor is personally present, and the Court is supposed to know him as much as a defendant against whom they give judgment ; and hence it is that the levari issues, and all the other pre- rogative process, and that deot cannot be discharged till there be a receipt upon record ; but when the King's ministerial oflScer takes an obligation to> the King, such obligation is not of record, and when the officer delivers such obligation into Court the time of delivei^^ is recorded ; so that if that obliga- tion be just, and the conusor has nothing to say against it, no body can con- trovert the tune of its lien, because the delivery is of record, and therefore it ought to bind from that time ; but the obligation is no more than a Warrant o/^Wornej/ for the ministerial or other person to deliver it of record; for being an act in Pais, and not of record, the conusor may come in upon the re- turn ofthesc»Ve/ac4as and traverse the obligation, Gilb. Ex.97; bonds in pais are now by 33 H. 8, c. 39, made statute staple, and therefore the lien is from the time of the acknowledgment^ and a levari may issue at any time within a year after the day that the money in the obligation is payable ; but if they exceed the year then there must be a scire facias as in the case of a common Statute Staple, ib. 102. The King's Chancellor for the time being, causes the Clerk of the Chancery, to whom it doth appertain, to inroH or cause to be inroUed, distinctly and plenarUy, in the Patent Rolls in the Chancery, all and singular Charters, &c. GUb. Ex. 103 ; the Master of the Rolls, yearly from time to time transmits Es- treats of Parchments, prestwise, in a conform measure, and of one assize, writ- ten upon one side only, aU and singular the said Charters, &c., out of the said Patent RoUs, and the same Estreats the said Chancellor, or Master, or Keeper of the RoUs, for the time being, shall deliver in their own persons, yearly to the Barons of the Exchequer in the Terms of Mich, and Easter, for execution and process to be made and had thereupon for the King, ib. 104 ; after the Estreats of the Chancery, by the hands of the Chancellor, &c., the Chief remem- brancer of the Exchequer shall take the same by delivery of the Barons, and shaU number and make a roll, &c., ib. 105 ; this original roll out of Chancery was the foundation of the King's Court of Revenues of the Exchequer, and upon this roll process was made out for the getting in aU manner of debt and duties contained in the same, ?6. 106. There are no recognizances for the performance of decrees of the Court of Chancery estreated into the exchequer, because they are taken to the Master of the Rolls and one of the Masters of the Court, and not to the Crown ; and therefore are sued there and nothing is estreated ; and the Statute Merchant and Statute Staple are estreated into Chance]?y by the Statute, and firom thence execution is to go, Gilb. Ex. 128. Before the time of Henry 8 there were very few bonds given to the Crown, but recognizances might be taken to the Crown, for they were matters of record, and the King could not take any debt, but by matter of record, but it seems to have been the method before the time of Hen. 8, whenever they gave bond to the Crown, to give a Warrant of Attorney to confess a judg- ment ; and then, though the King could not take by the bond, which was no matter of record, yet he could take by the judgment confessed unto Mm ; but 123 by 33 Hen. 8, c 39, a bond gif en to the King was made in the nature of a Statute Staple, &c. If it be doubtful whether the bond or recognizance be forfeited, then a scire/acicts shall issue, so if after a year and a day there be any prosecution upon such bonds it seems a saire facias shall issue i GUb: Ex^ 166. See as to Estreats from King's Bench, Justices in Eyre, Common Pleas, and Clerk of the Session into the Exchequer, ib. 129; Man. Exch. Pra. 316, • and Eeg. V Appleby, Berton's Eep. 399, where the question of an estreated recog- nizance is very fully discussed, the Court dividing in opinion upon it. 33 Hen. 8, c 39, is not in force in Ireland. Gilbert Exch. 98 ; Mania. Ex. Pr. 23. The 7901 sec. of 33 Hen. 8, c. 39, provides as follows : — " That if any per- son or persons of whom any such debt or duty is or at any lime hereafter shall be demanded or required, allege, plead, declare, or shew, in any of the said Courts, good, perfect and sufficient cause and matter in law, reason, or good conscience, in bar or discharg* of the said debt or duty, or why such person or persons ought not to be charged or chargeable to or with the same, and the same cause or matter be alleged, pleaded, declared, or shewed suffi- ciently proved in such one of the said Courts as he or they shall be impleaded, sued, vexed or troubled for the same ; that then the said Courts, and every of them, shall have fall power and authority to accept, adjudge and allow the same proof, and wholly and clearly to acquit and discharge all and every person and persons that shall be so impleaded, sued, vexed or troubled for the same; any thing in this present Act before mentioned to the contrary notwithstanding." In ex parte Usher, 1 Ball & Beat. 197, the Lord Chancellor said that Recog- nizance by a guardian in the matter of a minor, was not a debt due to the Crown. Also when the debt to the Crown is not of a public nature^ the Crown process should not issue, as the form of the security does not alter the nature of the debt. In the above case a petition had been presented on behalf of the sureties, praying that mortgaged premises belonging to the principal, a bankrupt, might be sold, and the surplus be applied to satisfying a debt due by the bankrupt to the minor's estate, and secured by the recog- nizance of the minor. Becognizance by a guardian in the matter of a minor, not being a real debt due to the Crown, but a mere form of security, the person secured by it can derive no preference in banimptcj over other creditors. In Be Dalton, 2 MoUoy, 442. 124 ADDEIS'DA ET COEElGENDA. The following Rule was omitted, page 32. Hilary Term, 25 Viciobia, A. D. 1862. It is Ordered, That from and after the first day of Easter Term next, the article called or known as Patent Parchment, be not nsed for the Writs, Bills, Answers or Pleadings of this Court in Equity. Amendnient of Bills, ante p. 44. By the practice of the Court of Chancery in England, as adopted in this Province, ante p. 34, a suit in Chancery was commenced by filing a bill engrossed on parchment, upon which a subpo?na issued to the defendant to aippear and answer within a time specified therein. By 15 and 16 Vic. c. 86, s. 2 and 3, engrossing on parchment was discon- tinued, and printed bills were substituted, a copy of which latter, with an indorsement thereon, commanding appearance &c. within u, certain time, was to be served upon the defendant, and the subpoBna to appear was abolished. By 17 Vic. c. 8, ante p. 38, all suits in Equity, except injunction cases before hearing,' must now be commenced by summons, and the bill of com- plaint is not to be. filed until after forty days if no appearance is put in. There would seem to be some difficulty under this Act in applying the old practice as to amending bills before appearance, by adding plaintiffs without notice, and proceeding to taKe the amended bill pro confessq. It does not clearly appear from the books of practice whether the amendments allowed before appearance, were made after the time for appearance had expired or not; but the Tifhole tenor of the authorities would seem to require that notice of an amendments, in some Way or other, should be given to the defendant. Where the defendant is within the jurisdiction of the English Courts, no decree pro confesso for want of appearance can be had against him without his being fUUy aware of the whole proceedings j but by 26 Vic. c. 16, s. 7, ante 86, in mortgage cases a decree pro confesso can be had for want of appearance without notice to party. The question here arises whether, in such cases, a plaintiff" can amend his bill by adding co-plaintiffs when defendant has not appeared, and proceed to decree ^ro confesso, when the summons served on the party remain^ unamended and shews a dfeierent suit ? Should not the summons be amended and re-served, or notice of the motion to amend given to defendant or a new summons issued? If not, a defendant who might be advised not to appear to the summons served, would be concluded by a decree obtained in a suit of which he never had notice. The case in Equity, Cases Abr. 29, which is cited in some of the books of practice as authority for adding a plaintiff before appearance, is verbatim as follows : — " A biU may be amended where there are not proper parties made defendants to the suit. 3 Chan, Ecp. 92." The marginal note is—" If there be any oversight or mistake in the bill which requires amendment before the defendant appears, it may be amended upon motion, without paying costs ; but if it b6 amended after appearance, costs must be paid." In HIchens v Congreve, 1 Sim. 500, where two of the defendants had put in their answers, the bill was amended by adding plaintiffs ; on motion to have the amended bill taken off file and the amendments struck out, it was said arguendo that the defendants might be prejudiced by the adding of a plain- tiff after they had answered the bill, inasmuch as they might have been able to defeat the original plaintiff, and under that impression might have made admissions which they would not have made if the additional parties had been plaintiffs originally, or might have qualified those admissions, &c. But the Vice- Chancellor said that no injury could fall upon the defendants, for after the bill is amended, a defendant has an opportunity of adding explana- tory circumstances in his answer to the amendments. Nowunder 17 Vic. c. 18, ante 38,which makes a summons the commencement of a suit, if where a party has allowed the time to pass for his appearance to a summons issued by one party, the plaintiff can amend his bill by adding a new plaintiff without giving notice to the defendant, and have it takeB pro con fesso 125 by tlie amcndecl title ; the dofouaant would sui'ely come within the reasoning and ruling of the above case, inasmuch as |he summons to the defendant would shew cue title and the decree another, and to which latter, if notice had been given, the defendant might have appeared. Under an order made at the hearing, the cause should stand over with liberty for the plaiutiff to amend his bill by adding parties as he should be advised, on shewing why he was unable to bring aU proper parties before the Court ; the plaintiff is not entitled to add parties or co-plaintiffs, and introduce new statements and charges in the bill relating to such plaintiffs. Milligan v Mitchell, 1 M. & C. 433. In Sopers v Myers, 3 L. J. Cli. 49, an objection having been taken at the hearing for want of parties, the cause stood over in order that parties might be added, and the usual order for that purpose had been obtained. The plaintill' amended by making E. Wright a co-plaintiff'. The cause having come on again the question arose, whether under the usual order giving leave to amend by adding parties, a new plaintiff could be introduced into the suit. The. Vice Chancellor " was of opinion, that by the amendment the record had been rendered altogether irregular, and he apprehended that the' Court would be obliged to dismiss the bill." The cause, however, was allowed to stand over, in order to search for authorities in. support, of such an amend- ment. VThen the cause came on again, it was admitted that no authorities had been found. Vice-Chi-ncellor — " If special leave to add a new plaintiff had been applied for, I could not have granted it. How can a stranger to aU former proceed- ings come in to pray for relief in so late a stage of the suit ? The dismissal of this bUl wUl not preclude a new suit ; but no decree can be made upon the first record." > Nothing having been done after the amendment, and the suit being in all other respects the same, it was suggested that the Court would now permit the amendment to be made properly. Vice- Chancellor — " Leave may be granted to amend by making E. Wright a defendant. !As nothing has been done in the suit since the record was altered, there wiU be no irregularity on the face of the proceedings." When, as in this Court, the summons is the commencement of the suit, can an amendment of the bill by adding plaintiffs (at least) without notice to the defendant, be made without altering the record of the summons ? Or can the Clerk, under an order to amend the bUl by adding a co-plaintiff, amend also the summons ? • Prom Hand's Ch. Sol. 9, the following order is taken :— " Upon motion this day made into this Court by Mr. , of Counsel for the plaintiffs, it was alleged that the plaintifis having exhibited their bill in this Court against the defendants, are advised to amend the same; and in regard none of the defendants have appeared to the plaintiffs' bill, it was therefore prayed that the plaintiffs may be at liberty to amend their bill as they shall be advised, without costs, which is ordered accordingly." An amended bill is considered as an original biU, and new subpcenas are not necessary, unless where there is a new engrossment of the bill ; for where there is not a new engrossment, the plaintiff undertakes to amend the defendant's copy, and that gives him notice. 1 Mad. Ch. 369. An original and an amended bill are as one, and the records are always fixed together; but when the amendments are so large as they cannot be added, then there is a new engrossment, and the parties ought to be men- tioned over again and to be served with notice of it. Vernon v Vaudrey, 2 Atk. 119. An amendment was allowed by striking out the names of several plaintiffs between the hearing of the cause and giving judgment. Palk v Ld. Clinton, 12 Ves. 48. ^ . ^ T,- -u The amendment of a bill puts an end to all process of contempt which may have been sued out against the party ; because an original and amended bill are one and the same record; and therefore when the bill is perfected by amendment, the proceedings must be commenced de novo. This rule is carried to the extent of where even the amendments are only the addition ot necessary parties. Lube's Anal. Eq. PI. 83, (citing 2 Cox 411). But an an amendment by merely adding new parties will be permitted at any time, even at the hearing of the cause. lb. 85, (citing 1 Atk. ul, 289 ; J Atk. v}70.) 126 If the plaintiff conceives from any matter offered by the defendant's plea or answer, that his bill is not properly adapted to his case, he may obtain leave to amend the biU. 1 Tur. Ch. 161. If the application to amend the bill be before appearance, the plaintiff pays no costs. lb. (citing 1 Eq. Ca. A^r. 29, supi'a.) A bill may be amended before or after the defendant has appeared. 2 Mad. Ch. 246, (citing also Eq. Ca. Abr. supra.') Two folios of amendment introduced continuously in any one part of the record, renders a new engrossment necessary. K the amendments are not of sufficient length to require a new engrossment, the plaintiff's Solicitor leaves the draft of the bill with his- Clerk in Court, (now the Clerk in Equity, ) as altered and signed by Counsel, together with the order to amend, and the Clerk in Court amends his record of the bill. 1 Smith Ch. 297. If there be not much new matter to be introduced, it may be by interpo- lation ; if much, it must be done on another engrossment to be annexed to the bill, in order to preserve the record from being defaced. WiUls v Evans, 2 Ball & Beat. 225. If any irregularity arise in any alteration of the bill by way of amendment, it may be taken advantage of by demurrer or plea. 1 Tur. Ch. 165. See sec. 18 of 17 Vic. c. 18, ante p. 49. — This section does not enable the Court of Chancery to determine a mere question of law, unnecessary to be determined previously to the determination of the question of SlqUity. Trus- tees of Birkenhead Dock v Laird et al., 23 L. J. Ch. 457, 18 Jur. 883 ; The Shewsbury and Blrm. Ry. Co. v Stour VaUey By. Co., 2 De G. M. & G. 866. See note to sec. 38, p. 56, ante. Where some of the parties were infants, and therefore unable to bind them- selves, it was held that the Court had no power, even by consent, to decide a purely legal question, so as to bind the infants, Webb v Byng, 3 Jur. N. S. 1242; see also Dufour v Sigel, 4 De G. M. & G. 620, 22 L. J. Ch. 678, 681. See note (n) p. 57. — The words " change of interest " have been held ap- plicable to the case of a necessary party coming into existence during the pending of the suit, FuUerton v Martin, 1 Drew. 238 ; 1 W. R. 49 ; Phlppen V Brown, 1 K. & J. 1 Jur. N; S. 698 ; Pickford v Brown, 1 R. & J. 643 ; and in Jebb v Tugwell, 20 Beav. 461 ; 24 L. J. Ch. 670 ; 25 L. T. 171, the principle was extended by making a supplemental order, binding the interest of an in- fant, born just before the decree, but through inadvertence,. not made a party to the suit. " Note (a) p. 90. — Infants are not capable of being made parties to a special case under this Act. The English Statute contains special enactments which seem to have been purposely left out of this Act. As to sec. 7 of 21 V. c. 3, p. 106, ante, see Burgoyne v Moffatt, S Allen. KULES ox COMMON LAW SIDE OF THE SUPREME COURT, FROM MICHAELMAS TERM, 11 Victoria, 1847, to MICHAELMAS TEEM, 1865, BOTH INCLUSIVE. MADE SIXCE THE PUBLICATIOX OF ALLEN'S RULES. Michaelmas Term, 11th Victoria, A. D. 1847. Admission of Barristers, Attomeys and Students. Whereas certain Eules and Regulations, touching the Examination of persons as Students at Law, and Attorneys, and the admission of Attorneys and Barristers of the Supreme Court, were duly made by the Barristers' Society in Hilary Term last, at a Meeting of the said Society holden at Fre- dericton, pursuant to the Act of Assembly, 9th Vic. cap. 49, which said Rules and Regulations have been sanctioned by the Judges of this Court, in conformity to the said Act, and are as follows : — " At a Meeting of the Barristers' Society of New Bruns- wick, holden in the Supreme Court Room, at Fredericton, this eighth day of February, A. D. 1847, the following Rules were adopted : — Rules touching the Examination of persons as Students at Law and Attorneys, and regulating the admission of Attorneys and Barristers of the Supreme Court. " I. That before any person is presented to the Barristers' Society for the purpose of being examined, in order to his being entered as a Student in the Office of any Barrister of this Society, he shall present a Petition to the Benchers, setting forth his age, place of birth, residence, place of education, the branches in which he is prepared to undergo an examination, and the name of the Barrister with whom 17 Ije purposes studying; which Petition shall be subscrited by the applicant, and certified by such Barrister, as to hisi character and habits, and that he verily believes him to be a proper person to be admitted as a. Student at Law ; and upon such applicant being approved of by the Benchers, h© shall be fully andstrietly examined in the English and Latin Languages., Mathematics, Geography and History, by the said Benchers, or any three of them, at Fredericton. " IL That upon the applicant passing such examination, and the Benchers being satisfied as to his, moral character, good habits, and fitness to enter upon the study of the Law, he shall receive a Certificate' to 'that effect. " III. That every Student making application for admis- sion as an Attoi-ney, shall give a Term's notice thereof to this Society, («) and shall undergo a full and strict examination before.the Bene]jers, or any threp of them, in the Elemen- tary principles of tlie Law of Eeal and Personal Property, Eorms of Action, Pleading, Evidencfe, and Practice. '{'a) The Eiile of Mich. T: isST, (Allen's Eiiies, 31,) is consMered to be still In. force., an^;th,e fpnn of petition -there prescribed is; required, to be ' presented by Students applying &r admission. "IV. That uppu the Student, passing such examination, and the Benchers being fully satisfied us to his moral charac- ter, habiteand ponductduringthe term of hisstudy, (6)heshall be recommended for admission as aii Attorney; provided always, that in case any Stud^ent shall not pass his exami- nation before three of the Benchers as aforesaid, such Benchers shall report the fact to the whole body of Benchers, apd, he may be heard before them against the refusal of his Certificate. (6) See Act 36 Vic. c. 23, reducing the term of study j also Rule bf Hilary T. 1858, as to Graduates. " V: That every Attorney applying to be calleid to the Bar, (c) shall give to this Society a, Term's notice of such 'his intention ; and if, during the period siiice his admission as an Attorney, his practice and conduct have been professional and honorable, and no objections are made to his moral character and habits, he shall be recommended accordingly; but if objections be made, an enquiry thierein shall be insti- tuted by the Benchers, or a Comiiiittee of them ; and upon 'such inquiry, the said Benchers, or a Committee as aforesaid, shall either grant or withhold a Certificate; of recommen- 131 dation for such Attorney's admission as a Barrister, as to them may appear just; and right in the premises." (c) See Rule of Hilary T. 1S5S. as to Graduates ; and Eule of lEaster T. 1806, as to the ibdmission of Barristers from other Colonies, I. It is Ordered, That theExamination of persons desirous of becoming Students, or being admitted as Attorneys of this Court, shall be con-ducted by 'the Benchers of the Barris- ters' Society, as provided for by the said Rules and Regula- tions ; and that no person be entered as a Student, or sworn and enrolled as an Attorney of this Court, or admitted as a Barrister, unless he produce a certificate to be granted pur- suant to the said Rules: Provided that this order do not extend to Barristers from other parts of Her Majesty's _Pominions, applying to be admitted Barristers here ; and provided also, that nothing herein contained shall extend or be construed to impair or interfere with the general super- inteHding power and authority of this Court over all or any of the matters aforesaid. II. It is further Ordered, That such of the Rules and Orders of this Court as are inconsistent with the said Rules and Regulations of the Barristers' Sv>ciety, or so far as they regulate matters therein provided for, (excepting as afore- said,) be suspended until the further order of the Court in the premises. Nisi Prius Sittiv.gs in the County of York. m. It is Ordered, That after the present year there shall be Sittings of Nisi Prius for the, County of Yprk after the Hilary and Trinity Terms of this Court only, that is to say : Sittings after Hilary Term on the third Tuesday in February in each and every year {d) ; arid Sittings after Trinity Term on the fourth Tue-'day in June in each and every year ; the said respective Sittings to continue for so long a time, as in the opinion of the Judge holding the same, may bo necessary for the dispatch of the business depending, (c) And it is further .Ordered, That all the parts, of the General Rule of Michael- mas Term in the sixth year of the Reign of K^ing William the Fourth, which relate tolTisi Prius Sittings for the County of York, shall remain in force, excepting the appointment of such Sittings -after the Michaelmas Terta of this Court. (/) \d) By the Act 22 Vic. c. 2, the Sittings in York are to be held on the second Tuesday in January instead of the third Tuesday in Ffebruary. (e) See Eules of Easter T. 1865, and Hilary T. 1860, post, if) Sec .Allen's Rules, 2.3. 132 Papers annexed to Affidavits. IV. It is Ordered, That from and after the last day of Hilary Term next, the Judge, Commiasioner, or Officer taking any affidavit to which any other paper or papers may bo annexed, do at the time of taking such affidavit, mark every such annexed paper with his name, or the initial letters of his name, {g) {g) This Rule does not apply to affidavits of the serrice of writs. See Rule, Eas.ter T. 1848, infra. IIiLAKY Tekm, 11th Victoria, A. D. 1848. Affidavit of illiterate person. I. It is Ordered, That from and after the first day of Easter Term next, where any affidavit is taken by any Commis- sioner of this Court, made by any person unable to write or appearing to be illiterate, the Commissioner taking such affidavit shall himself read over, and if necessary, explain the affidavit to the party making the same ; and shall cer- tify or state in the jurat, that the affidavit was read by him to the deponent, (A) who seemed perfectly to understand the same, and also that the said deponent wrote his or her sig- nature, or made his or her mark, in the presence of the Com- missioner taking the said affidavit. ( A)_See eoc parte Irvine, 2 Allen, il2. Where more than one deponent. II. It is further Ordered, That after the time aforesaid, where there are two or more deponents in the same affidavit, the names of the deponents who are sworn thereto shall be specified in the jurat. Easter Teem, 11th Victoria, A. D. 1848, Clerk's Office. I. It is Ordered, That the following Eegnlations be ob- served in the Office of the Clerk of the Pleas : — Entry of Cause. Ist. No Judgment, interlocutory or final, to be signed in any cause until it is ascertained, upon search, that the cause has been duly entered (i) ; provided, that where there is an interlocutory judgment, the search need not be repeated when final judgment is signed ; and provided also, that entries may be made as heretofore accustomed in cases of Warrants of Attorney to confess judgment. 133 (i) By Rule of Tl-iulty Terra, 1810, (AUeu's Rules, 41,) the process and affldavit of service must be on file before interlocutory judgment can be signed. If the plaintiff does not enter his cause in due time, according to the Rule of Hilary Term, 1837, he must shew a good reason for the delay, or he Trill not be allowed to enter it afterwards. Thus, where the defendant appeared within the time limited for entering the cause, but the plaintiff did not enter it in consequence of a proposal by the defendant to settle, as it was alleged, the Court refused, after a lapse of two terms, to allow the cause to be entered. "Wetmore v Briggs, 4 Allen, 590. And where the writ was returnnble in Trinity Term 1857, and the cause defended and tried, and a verdict for the plaintiff affirmed in Easter Term 1860, an application made in the following tenn for leave to enter the cause and sign judgment was retUsed, though the Attorney ?wore that the omission arose from an over- siiilit, and not from any intention of violating the Rule of Court. M'Auley v Ueddes, 4 Allen 591. Warrant of Attorney. 2nd. No Judgment to be signed on a Warrant of Attorney after one year from its date without the order of the Court, or of a Judge. (A:) ( i- ) See AUen's Rules, 30. Where a Judge's order to sign judgment on a Warrant of Attorney had been granted on an affidavit which was not strictly sufficient, the Court refused to set aside the judgment, it not appearing that any injustice had been done, and the defendant's affidavit on the motion supplying the alleged defect. Smith v LeBergue, 1 Allen, 266. Confession of Judgment. 3rd. No Judgment to be signed upon any confession, cog- novit, or retraxit, after one year from the date thereof, or from the Term whereof the same is granted, without the order of the Court, or of a Judge. Seeognizance Roll, ^c. 4th. No Eecognizance Eoll or a Recognizance of Bail to be received or filed until it is ascertained, upon search, that the Eecognizance or Bail-piece is on file. Judgment Molls. 5th. All Judgment Kolls to be endorsed with the title of the Term wherein final judgment is awarded; and when judgment is entered in vacation, then to be endorsed of the Term next preceding, and the Rolls are to be numbered con- secutively as they are brought in and filed of such Term, and to be referred to in pleading as the Rolls of such Term. Affidavits. n. It is further Ordered, That the General Rule of Mi- chaelmas Term last, in regard to marking papers annexed to any affidavit, shall not extend to affidavits of service of writs returned by the Sheriff, or other officer, to whom the writs are respectively directed. 134 Michaelmas Term, 12tli Victoria, A. D. 1848. Notice of Countermand. It is Ordered, That no ]!^otice of countermand shall be deemed sufficient to save costs, if any there be, for not proceeding to the execution of a "Writ of Inquiry of dama- ges pursuant to notice, unless it be given at least ten days before the time appointed for such' Inquiry.'^i) (?) See Allen's Rules, 16. Easter Term, 12th Victoria, A. B. 1849. Taccaiion of Costs. It is Ordered, That the following Regulations be observed in the Office of the Clerk of the Pleas : — 1st. Every Affidavit .used before.the Clerk, on the taxation of costs, to be retained .and, .filed on a file, to be ;kept for this purpose. , , ' 2nd. The names of witnesses, the days attendance and mileage of each .witness, to be specified in every Bill of .Costs brought for. ta;xation, (w?^. '■ . (ro) Before this- H-Hle the names of .tl^e.witnessesj should properly. have b?en stated in the bill of costs, or in the aflidavit pf the attendance of wit- nesses f hut where they were riot stated' in the" hill of costs, and no copy of the affidavit of their attendance was serve,d on the defendant's Attorney, and he attended the taxation without 'making any objection ori that ground, it was held that he had waiyed his right to apply for a review of the taxation, though the affidavit on which the witnesses' expenses were allowed was afterwards contradicted, in iseveral particulars, -.Chaee vPawoett^il Allen, 566. And where a ^party has, been served .with a regular copy of a bill ,of costs'arid affidavit of atteihdance of witnesses; and has attended the taxation without objection, he cannot aftprwarclg, apply for a review an the discovery of facts which he might have known at the time of taxation, unless, perhaps, a fraud has been practised on him. :5'la,glor y Eichards, 1 Allen, 699. Itis Ordered, That w^&cq partj.es;whO;ar.e not Attorneys of this Court, prosecute or, defend' any action in person,'jnQ pa- pers, writs or records be ,receiyed or filed in the Clerk's Office, or.entries ipade,,>!i'ithput the, fees, being paid .]thergc}ri,at,the time of such filing op entering. ■ . ■ . ? ; Trinity Term, 12th Victoria, A. J). 1841' " ^ud^ment ^qucifi no^n.s'iiU. It is Ordered, That in, the ^otjce, of motion f9r judgment, ,as in .case, of ;a , nonsuit, i the ^.copy of A^ffidavit, , jas requi,rpd by Rule 3^ Hilary Term, ,6th. WilUa,m 4, ^\&\\ be,de,emed sufficient if served on Tuesday the four teerith day preceding the Term, so as to make the notice of motion in this case 185 conform to the other notices of motion upon the Motion Paper, (n) ( n ) See Allen's Rules, 26. See also Kule of Miohs. T. 1859, post, as to the necessary statements in the affidavit, and the Kule of Hilary T.- 1865, as to the service of notices. Subpcena to frove the execution of Deeds in order to be Begistered. Whereas by the Act of Assembly 10th Victoria, cap. 42, it is enacted, " that proeessof Subpoena may be issued out of the Supreme Court of Judicature as in ordinary cases, (and in such form as the said Court maybygeneral rule or order prescribe,) to compel the attendance of any witness, or the production ot any conveyance or instrument for the due proof thereof, in order to be registered agreeably to the pro- visions of this Act; and such Court shall have the like power to punish disobedience to any such Subpeeria, in the same manner and to the same extent as in other cases ; provided that no such witness shall be. compelled to produce, under such Subpcena, any writing or other document that he would not be compelled to produce on a trial :" It is Ordered, That the several processes of Subpcena to be used under and in pursuance of the above recited Act, shall be in the form or to the effect following : — Xo. 1. Subpcena ad Testificandum. Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To A. B., \_names of the witness or u-itnesses'] Greeting : — We command you that, laying aside all and singular busi- ness and excuses, you and every of you be and appear in your proper persons before \name and description of the Court, Judge, or other Officer before whom proof is to be made,'] at [the place or office where proof is to be made,] on the day of , at of the clock in the noon of the same day, to tes- tify all and singular those things which you or either of you know concerning the execution of a certain [describe the con- veyance or instrument to be proved,] purporting to be made be- tween [the parties to the deed or instrument,] and bearing date the day of , A. D. 18 , to which [deed or instru- ment'] you and each of you were severally a subscribing wit- ness or witnesses ; and further to prove the execution of the eaid — *, in order that the same may be. duly registered according to the provisions of the Act of Assembly in such 13G case made and provided; and this you or any of you shall in no wise omit, under the penalty upon each of you of one hundred pounds. — "Witness Esquire, atFredericton,the day of , in the jear of our Eeign. No. 2. Subpoena duces tecum. \_Tlie same as the above to the asterisk *, then thus'] — and also that you bring with you, and produce at the time and place aforesaid, the said [describe the deed or instrumen(] hereinbe- fore mentioned and described, in order that the same may be duly registered, &c. [conclude as in the preceding form.] Hilary Term, 13th Victoria, A. D. 1850. Trial by the Record. I. It is Ordered, That if the party who may have given the Ifotice of Trial by the Eecord, pursuant to the Eule of Trinity Term, 9th Victoria, (e) shall not enter the same for Trial on the first day of Term, as required by such Rule, the other party may move to enter the same for Trial on the sedond day of Term, and proceed to trial at such time as the Court may thereupon appoint, on delivering to the Chief Jus- tice a Paper Book, in case such Book should not already have been delivered. (o) See Allen's Eules, 50. II. It is further Ordered, That either party may give N'o- tice of Trial by the Eecord, and enter the same pursuant to the Eule of Trinity Term, 9th Victoria — but that if Notice be given by both parties, the Notice of the party seeking to perfect the Eecord shall have precedence, provided he duly enter the case, and deliver the Paper Book to the Chief Justice. ■ Easter Term, 13th Victoria, A. D. 1850. Service of Process- a,t Dv^elling. I. Whereas by the Act of Assembly 12th Victoria, cap. 39, sec. 44, the Act of Assembly 7th William 4, cap. 14, allowing service of Process to be made at the usual place of abode of the defendants, is repealed ; and the said Act of 12th Victoria limits and restricts service of Process at the dwelling to cases where the -defendant shall be within the jurisdiction of the Court, at the time of such service ; and the Rule No. 2 of this Court of Trinity Term, 3rd Victoria, is thereby vir-tually superseded : It is Ordered, That such Rule be rescinded, 137 and that the affidavit of such service shall he in the follow- ing form, or to that effect, in order to entitle the plaintiff to an order (p) for perfecting such service : — " A. B., Sheriff of , (or A. B., of , aBeputy of the Sheriff of ,) maketh oath and saith, that he, this depo- nent, did, on th« day of , deliver a true copy of the annexed writ or process at the house of C. D., the defendant named in such writ or process, {or the house of any other person, as the <^ase may he,) situate in the Parish of , in the County of , unto E. F., the wife of such defendant, {or to G. H., an adult person residing in the said house, and known to this deponent as a member or inmate of the family of such defendant) ; and this deponent further saith, that the said house was at the time of such delivery the usual place of abode of such defendant, [and that the said copy of the said process was accompanied with an English notice in writing to the defendant, of the intent and meaning of the service of such process, pursuant to the Statute in such case made and provided] ;* and this deponent further saith, that the said defendant was at the time of such service within the limits of this Province, as this deponent knows, for the following reasons, (here state the parUcidar means of knowledge the deponent has of the defendant's being within the Province ; if this fact is not knx)wn to the serving officer it 7na.y be proved, hy the affidavit of another person ; and the affidavit of the serving officer may omit the words after the * and conclude asfolloics: — ) and this deponent further saith, that he verily believes that at the time of such service the defendant was within this Province." (The clause between brackets may be omitted in the ser- vice of Summary writs.) (p ) Where a writ was not served personally, and no Judge's order was obtained to perfect the service, according to the Act 7 Wm. i c, 14, (which in this respect was similar to tlu3 Act 12 Vic. c. 39,) and tiie defendant denied any knowledge of the suit, the judgment and execution were set aside, though the defendant's affidavit of ignorance of the suit was contradicted. James v Dupres, 1 Allen 506. In this case, Chipman C. J. is reported to have said— " The law requires a Judge's order to make the service perfect, and we can- not dispense with it.'" But it is clear that a Judge's order may be dispensed with ; and in that case, both Carter J. and Street J. admit that It might be waived by the conduct of the defendant, and state as their reasons for setting aside the judgment, tlwt the affidavits did not clearly make out the waiver. In O'Kegan v Berrymount, 1 Kerr 167, which was very ftiUy argued, and where all the English authorities were reviewed, the Court refused to set aside the judgment, though the service was not perfected, where it appeared that the defendant knew that the suit was going on, and after final judgment gave a new security for the amount. In O'Leary v Graham, decided in Hilary Term 1861, the judgment was sustained though there was no Judge's order, and the defendant denied any knowledge of the existence of the suit until h(j 18 138 was arrested on the execution — the Co'urt being satisfied that he had received the copy of process left at his house, and knew that the suit was proceeding, his' explanation of the matter not being satisfactory. It is, perhaps, difficult to define exactly what will amount tb a waiver of the irfegularlty ; each case must, depend upon its own particular circumstaiices ; and though a judgment obtained without personal service of process, or an order to perfect the service, is clearly irregular, the inclination of the Gourt appears to be to sustain the judgment wherever it appears that the writ came to the know- ledge' of the defendant in tinie to eTia;We him. to appear, if.he wished to defend the suit. II. It is further Ordered, That in order tp entitle the plaintifi" to an order fqr making a service at the dwelling good service, the writ or process shall be delivered to the Sheriff of the County into which it is issued for service, and that such service he effected, and the affidavit thereof made hy the Sheriff, or his general or special Deputy. , III. It is further Ordered, That the3e Rules shall apply mutatis mutandis to -writs directed tathe Coroner. IV. It is further Ordered, That these Rules apply to every writ or process issued after the end of the present Term. Trinity Term, 13th Victokia, A. D. 1850. Notice of Matter of Defence, 13 Vic. c. 32. It is Ordered, That a copy of the notice of any matter of defence delivered with the plea, pursuant to the Act 13th Victoria, cap. 32, and a copy of any order of the Court or a Judge which shall have been made touching such notice, shall he filed with the Nisi Prius record at the Court of Nisi Prius, and be annexfed to such record, (q) (g) A special plea cannot operate as a notice under the Act. Robinson v Palmer, 2 Ailen, 223. The notice' should state the grounds of defence with reasonable certainty, and shew in substance that the matter alleged would have been pleadable in bar. LeGal v Duffy, 3 Allen, 57. But a notice in an action for libel, stating that the allegations ' contained in the writing com- plained of are true, is sufficient, it not appearing that tlie plaintiff was mis- led by the generality of it. LangvGilbert, 4 Allen, 359. Proof of the matter stated in the notice wHl not entitle the defendant to a verdict, unless it amounts to a legal defence ; Whelpley v Eiley , 2 AUen, 275 ; and if the matter stated is no defeilce, the notice will be set aside with costs. Dowllng v Trites, 2 AUeti, 520; Wilson v Sti'eet, fftia. 629. Where defendant pleaded two pleas and gave a notice of defence of other matters; it was held that the plaintiff should have applied to a Judge to set them aside, and was not justified in treating them as nullities. Oulton v Palmer, 2 Allen, 364. See also Eule of Easter T. 1859, post, as to the time and manner of objecting to the sufficiency of notices. ' Hilary Term, 15th Victoria, A. D. 1852. AiiaeJjiment. It is Ordered, That in future no attachment do issue unless taken out in the' Term during' which the same may h3,ve been granted, or in the vacation next succeeding the same, without the order of the Court, or a Judge. Easter Term, IStli Victoria, A. D. 1855. Neio Trial from York Sittings. It is Ordered, That when a Rule nisi for a new trial — or of the like kind — has been granted in a cause tried at the Sittings for the County of York, the case shall be entered by the Clerk on the special paper for the Term at which the Rule is granted, without its being necessary to serve the Rule nisi as in other cases, unless the Court shall order the same to be served ; and the cause shall be called on for argument in the order in which it is entered, (r) ( r ) See Allen's Rules 33, as, to the notice of motion. In reference to the Act of Assembly 18th Victoria, Chapter 24, intituled " An Act relating to Jurors," it is ordered as follows : — Dv.ty of Clerk as to Jury. 1. The Clerk at any Circuit Court or Sittings, shall enter on the Minutes the time when the Jury retire to consider of their verdict, and also the time when the Jury return into Court to deliver their verdict. 2. If they return within two hours, the verdict shall be taken and entered in manner heretofore accusttimed. 3. If they return after the lapse of two hours, after they are called over by their names and answer thereto, they shall be asked thus — Gentlemen of the Jury, are you all agreed on your verdict, or how many and which of you are agreed thereupon ? K they shall answer that they are all agreed, the verdict shall be taken a,nd entered in the usual manner. If they shall answer that they are not all agreed, but that five (or six) are agreed, the names of the Jurors by whom the verdict is so returned shall be taken and entered in the Minutes, and the verdict shall be recorded as follows : — The Jury having considered of their verdict, and not being able all to agree within two hours, five (or six) of their number, namely, A. B., [the names to be here s^pe ' .i '* And now, pursuant to thfe Act of Assembly J)assed in the eighteenth year of the Reigniof Queen Victoria, entitled ' An Act concerning Tender in Actions at Law and Suits in Equity,' on the — — day of ill the yfear of our Lord — the said defendant C. D., files in the Office' of the Clerk of the Pleas of this Court, an offer or consent in writing in the words following : — [insert the'dffer] — whitjh offer and consent the said plaiiltiff A. B,, has not accepted ;; therefore the issue joined between the parties remains to be tried : Therefore let a jury therettpon, come, &c.'\-^as.'i^ ordinary cases^ jto -the conclusion of iAejJosfeaJ-^nd then proceed ag foilqwfs : — "And inasmuch! as it appears by;the said return, ijiiat the debt [a^damigesj was ;riot igreatec in iamount than the sum &r which the saidjC D. offered to suffer j udgmenti by default, it ia considered that the said A.,B. do recover: hife'saiddebjt [^or damages'] so assessed at -the suin of j 'togetheir with his costs iand charges fey him abfeut his suit in this behalf expended,, up to the saidp— — : day of — —, andfpr these costs and charges to , which. said debt, [or damages'] costs and charges in the whole, afti^ount to -, and that. |the.sa,id A. Behave execution 'thereof. And itia further coip^s^de^ied. that the said C. D^ 3o recover agalnst,the said A. B. for his cpsts and charges l^y him incurred after t'he ^id — — day o:^ '" . , and ftiat he have execution thereof." ., C y y An offir to' suffer juigment'under tiis J4ct jaay be filed "before dedla- riUnn. ..Gibson v Bateman,' 4 AlKB ,538. f Tlie Off* must be' signed; 'by/tJie' defendaiil; in. the cause, and not by 'Ms. Attorney,,, Wetmore v i)esBpisaF^, itM -356. : An offer -^liifeli'MS notbeen accepted', will riot prevent the dS&ilff-'^ ant ^ppa loit^in^ j udgiiejit ais .in; c4se of a ntoirfiriit. Thomas ,v D emiU, 1 3 Ail'en407. . , ,,,. • u; Surmvinc/^^vlks..j,: ;. , . .., r. _•,,, ; 2. In siimmary causes, when one of the several plaimtiflfe or defendants shall happen to; dije affi^r the commencemrep.t fff, the acliop, the subsequent proceedings ,sh,allbein t]ig name of, or against,, the, ^ur:viving plaintiff or plaintiffs, or defend- ant or' d)efendants,,,a^ the fia?^ may ie;, describing, ^hn,, or;: them re8pectively,;,as:8uryivor or survivor^, of, A. B., who, hath died since the commen(|ement ot-this suit, and who was a joint plaintiff or defendant ,,v;;,/ ' '(d) igee drone V feoodine, 4 Alien ^7^.' ^ , , r 14(5 MiCHAELiiAS Teem, 23rd,, Yictoria, A. D. 1859. ; . Judgment) as in: ease of a nonrSuU. It is Ordered, That in future the affidaviton which motion is made for Judgment as, ia case of a nprv-rsuit ;for nQt^ pro- ceeding to .trial according tp the practice ,of.the Court, (where notice , qfr.trial has nptj^eein givenj) ,do st^teithe particiilar. Tfixmii;! or )3efore/5yhic)a issue has, been joined, or do state some particular day in x^cBjtion on or before which issue has been joined., (a), ,-,^ , . , ^.,, ( a ) ,Sep Eule.cif Trinity Tem, 1849, ante p. 1J4. HitAKT Term, 23rd Victokia, A. D. ISSU^ - Mw TVialg for Y&rk. ' •''- It is Ordered, That the Rule of Court of Michaelmas Terra 1st Victoria, No., 10, relating to motions for new triails in causes ifcriedat the Sittings for the County of York, shall not apply to eanses tried at'the Sittings holdeu in January in each year^ but that motions' for ;new trials in causes, tried at the said lai&t-mention>ed .Sitlingsy shall bema'de as in causes tried at anyofthe-^ircuitCouTtslffr) '- J ( 6 ) See^nle of Eas^e? Term, 185S, ant4. p. 139 j algq AUen's IfuteB, 23, 33i TRmTT-TEUM, 28rd TlCiORlX,-A. D. 1'86(JV ' ^ ' Crown Office. . . ' \. It is Ordered, TEat the follo\ting Eegulations be observed in the Office of the Olei-k of th6 Crown in this Cip6tt :— ' ' . r JBhnk Writs issued hy 'cierU. '. '."''. '1. Blank Writs of Habeas Corpus, and! any; others which require the fiat of a Judge to tie endorsed thereon 'bef()re they can be issued for the purpose ofi being executed, and Blank Writs of Subpoena, may be delivejfed to the respective Attorneys of this Court signed and sealed, to be by them filled up as occasion may require ; they accounting to the Clerk therefor, and forwarding to his bffice proper prcecipes f6r such of the^said Writs as they may from time to time-:fell npi and 'isstte, 'stating in the praecipes the name of the Jdd^ whose fiat hasiieen indorsed, Where a fiat is'nec^ss^ry:^ ' '^' ' 2. No other j&lank Writs than thosV^above' specified; to bfe signed and sealed ; ' nor shall any mere blank piec6s of parch- ment be signed and sealed by the Clerk of the Crdvs^n. '"'■ Writs of Attachment. ; / 3. Where Writs of Attachment or other 'Writs are issued" out of the Crown Office upon a Eiife of Gourt therefor, or 147 by order of a Judge, the Clerfc shall at the time of signing and Bealihg the Writ, put at the foot thereof, or indorse thereon, a memorandum in the foi-m following, or to that effect, as the ease may be : — " By Rule of Court of Term, A. D. 18—," or "By Order of the Chief Justice or Mr. Justice , dated , filed in the Crown Office." HitAUT TiRM, 25th Victoria, A. D. 1862. It is Ordered, That from andL after the first day of Easter Term next, the article called and hnown as paieni parchmerf.i, be not used for the "Writs and Records of this Court, (c) (c) Spe Bums V Burns, 4 Allen, 229. ' •■"'•- HiiiABY Tbbm, 26th VicioRiA, A. D. 1863, Tt is Ordered, That no person shall be held to Bail upon the Judgment of the Court of any Fbfeign Country, or of any British Colony, without a Judge's order. IHsorce and Mairimpnicd Appeal Papers. It is Ordered, That the Clerk of the Pleas do keep a Paper, to be called the Divorce and Matrimonial Appeal Paper, in which shall be entered all Appeals from decisions of the Court of Divorce and Matrimonial Causes ; such entries to be made on or before the first day of the Term next after the decisions in the said Court ; such appeals to be heard next after the Equity appeal paper. Divorce and Matrimonial Causes. It is Ordered, That upon hearing of an appeal from the Court of Divorce, and Matrimonial Causes, pursuant to the Act of Assembly, 23rd Victoria, cap. 37, it shall be the duty of the appellant to procure and file with the Clerk of the Pleas in this Court, certified copies of the libel and answer and Decree ; and that on hearing the appeal, the evidence be received from the Report of the Judge of the Court of Divorce and Matrimonial Causes. Hilary Term, 28th Victoria, A. D. 1865. Service on an Attorney. Ordered, That no service of any paper on an Attorney in any cause, shall be deemed good service by leaving such paper at his dwelling house or last place of abode, unless it -.shall; appear by the affifevit pf p§rppe that the Attorney haB no Office, ,or,if haying gn Office, th^|; the s^me; wasi clo8e4, or if <:>penv;:^a.t.thei;e •vs'a^SiUP, person in ^sRc^ferO.^iie! upon, whom service could be made; in anyiof wbi(^ caseiSji,lpa,yiQg the samei^t'the.(^w4^og h«iu^e jorJaat place,©5i"epidenpe, ofthe ^Attorney, shalUbe deempdiRiUfficient ^^j;vicp thereof. («?): (d) ThisrestrainsthellthRiileaf !E^sterT,erjp,fl7^5j,,SeeAUiEp'^Eules^ 4- MlGHAp.SJAS..TEB]Vt; 2^th ^IGTOBIAj-A. JD., 1865. Motion Day. It js Ordered, That Tuesday in the second week (e) of each Term shall be the regular day for inotions,; instead of Satur- day of that week ; on which d^y, 'mpypns'sljipll have th,e^pre- cedence of the ordinary business, which however shall be proceeded- with after the motibns arelCOE'clttdiisdi;— ;i, r.rc^ij(|p(|,j however, ;tli^ pne. prr;tnprf!,-pf JJb-e Judges will .?|t.ip Coifrt on ^li^.pj^cpnd Sati;irda,y,- yvji,ene-v;er, occapion naay require". .-.,.,■;,,, ■/,■,-,: .„ ■: ,:eii,i'v ACTS OF ASSEMBLY PEACTICE AND EVIDENCE. 21 VIGTOKIA, CAP. XX. A,ni Aot to amend tte Practice of the Law Section.. ; Section. 1. Writs may bear teste on the day of 4. Common bail pieces unnecessary ; . , issue-., , ' ^ ^UfliQient appearance,. what. 2. Bill of \ork abolished. 5. Declaration in trespass j or trespass 3. Appearance; judgment by default ; ':; on the case. :'!?.' j . ; . special bail. 6. Signing Judgment in summary cases. Ihssed 6th April, 1858. Be it enacted by the Lieutengiiit ^pvjemor, Legislative Council, and Assembly^ as follcsys :^ 1. That firom and after the passing of this Act, all "Writs to be issued from any of the-Oourts in thia Province, may bear teste to, the day on which such Writs shall be issued, any law, usage, or custorn to tb« contrary thereof in atiy wise notwithstanding.. _ ,;;. ;. '2, That v?rits of capias, bailaWp or npn-baila-ble, may issue #pd;,take eflect in tb.e County of Toi;l:,in like manner iasi in ottter Counties ; .andthe^pil l p,f York is he r eby abolished ,. .3, That the defendapt in all casr^s shall hay;^ thjTty days tq appear to a non-bail*ble process, ^nd, to enter special .bail to a bailable process^ from, the return day:of i^qch.vpwcess,; and. in, summary aetipns, ifthe defendant donfft enter, his appearance and plead Tj^thin tiip time aforesaid, Judg.rpent m4ybe entered against him by default ; or, if.. the case be baUaWe, and thci defendant jshould fail to enter special bail within thirty day? after the return ^^ 0,f thp. writ, the plaintiff may proceed against thp Sheriff, or on the bail bOnd^ as iu ordinary cases. 4. / That common bail piec/e^ shall n oj;i,;^necesBaryjjQ^^ny case, nor shall any costs beja xedforjtejame ; that notice 'of^p'earance served on tETpaSitiff's attorney, and a copy of the same filed in the office of the Clerk of the Court out of which the process issued, for which copy to be filed a charge of six pence only shall be allowed, shall be deemed a sufficient appearance. 150 6. That in all actions of trespass and trespass on the case, 'the declaration shall be equally goo^ and valid to all intents and purposes, whether the same shall be in form a declaration in trespass, or trespass* on the case, (a) (a) Befer to. Brown v Thompson, 4, Alien, 228, apdijLipsett.v M'Laggan, (not reported,)' -Judgment Easter Term-, 1863. ' "• -^ 6. That the party^ in whose favour the verdict may be given in summary actions^ shall be entitled to sign judgment thereon immediately aftrer the verdi<3t, any thing in the Act passed in the fifth year of the Rei'gn of iKslate Majesty King William theJFpurth, intitjiled ^nAct iQ,;pr;Q^.i4e for the more convenient administration of Justice in, t}\,e Supreme Court, to the contrary notwitlistanding. ' i, . ' : . , i^; ;..; /- 21 VICTOKM, OAP. XXFV^. - An Act in addition to CEapfer'liS, of Title XXX, of the EeVise'd i , Statates, ' Of Judgments, lExeeutions, and Proceedings thereon.' Savf Registry of Mei&orial of Jud^iAenlHd be cancelled', when judgnient set aside. f [• ' !; I • ' ir-' Passed QthApfU,l%b%. Be it enacted by th'f Record in the County where the offence may 'be eomnlitted, which actifVTi ph.aU be brought. within twelve months from the time of,s]iqh^,offence. ^ ■■,,.) j •;-,.! ri!;'ii,.7 ■ ;• v-! j.j.-\ -o -; ^F 5. Nothing in this Act sh^ll.erxtend, rtq.'pr b^e eonstrued,tO; extend,, to. coatracts or securities entericd into .before the passing of this Act, 6): to legalize any uSjUr,iou9 contract, security, pr loan, rHiade, entered ^into, given, or taken.before the passing of this. Act, but all;Suc|i, contracts, (Securities, or loanSjShall-be construed, considered, and dealt with'as well in civil suits^as in proceedings i^r penalties, a^ if .this Act had. not been passed ; and for all such cases, Chapter 102, of Title XXIII, of the Revised. Statutes, ' Of Interest and Usury, 'rshalLlje considered in force, and yinj^ealed, 6. That nothing in, thig Act co^ntained s^all extend or, be Construed to extend tp [liQtto.mry Bonds, or Contracts ,on, thf ^^ bottom of any Vessel, damages, pr .protested Bills allowed by law, penalties incurred for the .npnJulfiliiient of any eon- t;^act, jWherp su^ch, penalties ^r^^ , niu.jtijially Ijmfl.ip^);, i^-Q^^ coi- tr^(;'|;s,,fpi;,|;Jie loau o^r birepf any grain, .cattle, pr live.sto^. of pa!guallbi^s uppn ^hipas^lf^ iq,j^hicb,case thejb.o;^rowe.r,8hali not avail himself ,pf any lpsSi,s.uffere4.^tbrpugh^hii 'wil|u^^^ neglect, or any voluntary damage which. mp,y. be, ppmmitted. by him. . - . , ■;oi J II An A6«& anlena<4iedPttPOl4|)Wi* 116, titlteiXSJXiiof ihe- RfevisM^c^ ■ -i'i fStebut^'i'-OftBilte^iNotes, atfd:(&lios4s'iB Actiotii;' ".i;,, ■ " - • ■ , - . • . -- _... -_ . ndPi . 1. Damages on Foreigh and Colon.ial , 3l Wken BiUs of Excljange and Pro- 2.,3^fi, l,,6ap,n,6, ilev,rStat„reppa4efl.j.|f.,^,U,taia,c^6^s,'] 'ii^.oru ;, i.cj' '■ . ' ' ' '4. Evmehce of presentment and diV' .urii.'; r ■ '.' "'ijiir ijioop, 'i.i /jhexmt..*' ro .ir'rir, jjiiotscI ; . cl'iij;.! , ' .:t ifassedl3thApeillT:B[t9.-:r;i iBiE it enacted byi^he Lieutenant ■ Govern or^ IjiegiM^tilefJ Council, ;and AssetnbSiy, ae 'Ml otvs :—i- ^ 7' ^ v.f ; ■ lol ii'/lioi 153 1. "Whenever any Bill of Exchange drawn or indorsed within the Province, and payable in any part of North America without the Province, or in Prince Edward Island, or in the Island of ]S"ewfoundland, shall be returned pro- tested, the party liable for the contents of such Bill shall, upon due notice and demand, pay the same with damages at the rate of two and one half per cent, upon the contents thereof, with lawful interest and charges on the said con- tents, to be computed from the date of the protest to the time of payment; and whenever any Bill of Exchange so drawn or indorsed, and payable in Europe, or in the West Indies, or in any other place without the Province than as first recited, shall be returned protested, the party liable for the contents of such Bill shall, on due notice and demand thereof, pay the same at the current rate of exchange at the time of demand, and damages at the rate of five per cent, upon the contents thereof, with lawful interest and charges on the said contents, to be computed from the date of the protest to the. time of payment, and such respective amounts of contents, damages, interest, and charges, shall be in full of all damages, charges, and expenses. 2. The first Section of Chapter 116, Title XXX, of the Revised Statutes, ' Of Bills, Ifotes, and Choses in Action,' is hereby repealed. 3. From and after the first day of Jurle next, Where Bills of Exchange and Promissory Notes become due and payable on the first day of January Commonly called New Year's Day, Christmas Day, Good Friday, or Day appointed by Proclamation of the Governor of this Province for a Day of Fast, Thanksgiving, or general Holiday, the same shall be payable on the day next preceding such New Year's Day, Christmas Day, Good Friday, Day of Fast, or Day of Thanks- giving, or general Holiday, unless the day p'receding such New Year's Day, Christmas Day, Day of Fast, or Day of Thanksgiving, shall happen to be Sunday, 'in which caSe such Bills of Exchange and Promissory Notes shall fall due on the Satutday preceding ; and such Bills of Exchange and Promissory Notes, in case of non-p'ayrhent, may be noted and protested on the d^y preceding such New Year's Day, Christmas Day, Good Friday, Day of Fast, or Day of Thanks- giving, or general Holiday, unless the preceding day be 154 Sunday, and then the same Billa of Exchange and Promis- sory Notes may be noted and pi-otested on the preceding Saturday; and that as well in such cases, as in the cases of Bills of Exchange and Promissory Notes becoming due and payable on the day next preceding such New Year's Day, Christmas Day, Good Friday, Day of Fast, or Day of Thanks- giving, or general Holiday, it shall not be necessary for the holders of such Bills of Exchange and Promissory Notes to give notice of the dishonor thereof, until the day next after such New Year's Day, Christmas Day, Good Friday, Day of Fast, or Day of Thanksgiving, or general Holidiay ; and that whensoever such New Year's Day, Christmas Day, Day of Fast, or Dsxj of Thanksgiving, or general Holiday, shall happen or be appointed on a Saturday, it shall not be neces- sary for the holder or holders of such Bills of Exchange or Promissory Notes, as shall by virtue Gf this Actor otherwise be paj'able on the preceding Friday, to give notice of, the dishonor thereof until the Monday next after such New Year's Day, Christmas Day, Day of Fast, or Day of Thanks- giving, or general Holiday, respectively; and that whenso- ever such New Year's. Day, Christmas Day, Day of Fast, or Day of Thanksgiying, or general Holiday, shall happen or be appointed on Monday, it shall not be necessary for the holder or holders of such Bflls of Exchange or Promissory Notes, as by virtue of this. Act or other^yise shall be payable on the preceding Saturday, to give notice of the dishonor thereof until the Tuesday next after such New Year's Day, Christmas Day, Day of Fast, or Day of Thanksgiving, or general Holiday, respectively ; and from and after the said first day of June next. New Year's Day^.. Christmas Day, Good Friday, and every such Day of Fast, and Day of Thanksgiying, or general Holiday, so appointed by the Gov- ernor of this Province, is and shall, for. all other purposes whatsoever, as regards Bills of Exchange and Promissory Notes, be treated and considered as the Lord's Day, com- monly called Sunday. 4. "Where any Promissory Note. or Bill of Exchange shall be payable at any place put of this Province, whether the same be drawn in or out of this Province, a Notarial protest of the presentment and dishonor of such Promissory Note or Bill, of Exchange ^hall be deemed and taken in all Courts 155 of this Province as evidence of the fact of presentment and dishonor stated in such protest, in the like manner as in cases of a protest of non-payment of a Foreign Bill of Exchange. 23 VICTORIA, CAP. XXX. An Act in further amendment of the Law. 'Action. Seciion. 1. Bail may render principal to County 2, Sheriff may take new bail. gaol any lime before letum of 3. Sheriff of St. John may reside within process. three miles of the Court House. Passed 9ih April, 1860. Be it enacted by the Lieutenant Governor, Legislative Council, and Assembly, as follovs^s : — 1. That any person being bail to any Sheriff for the ap- pearance of any person arrested under any mesne process issued out of any Court, may at any time before the return of such process, render the principal to the gaol of the County in which such process was executed, as provided in Sections thirteen, fourteen and fifteen of the Act of Assembly twelfth Victoria, Chapter thirty nine, intituled An Act to consolidate and amend various Ads of Assembly relating to the further amend- ment of the Law. (b) ( 6 ) In ScovU V Burk, Trin. Term, 1864, the Court held that nnder the 13th sec. of 12 Vic. c. 39, bail to the Sheriff might render the party after the time for putting in special bail had expired, without putting in special bail. 2. The Sheriff, upon such render being' made, may take new bail for the appearance of such person as if no previous bond had been entered into. f' 3. That the Sheriff of the City and County of Saint John may be permitted to reside within three miles of the Court House in the said City and County. lD(i 23 VICTORIA,, CAP. XXXI. An Act to amend the Law relating' to Guarantees, Bills of Exchange, and Promissory Notes. SectioD. Section. 1. Written guarantee not avoidable be- 2. Effect of change in constitution of a cause consideration not stated in Firm. writing. 3. Judge may order loss of a negotiable -instrument not to be set up. Passed.9th April, 1860. Bb it enacted by the Lieutenant Governor, Legislative Council, and Assembly, as follows : — 1. No special promise to be made by any person after the ' passing of this Act, to answer for the debt, default or misn carriage of another' person, being in writing and signed by the party to be charged therewith, or some person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding, to charge the person by whorn such promise shall have been made,' by reason only that the consideration for such promise does not appear in writing, or by becessary inference from a written document. 2. No promise to answer for the debt, default, or miscar- riage of another, inade to a Firm consisting of two or more persons, or to a single person' trading under the name of a Firm, and no promise to answer for the debt, default or mis- carriage of a Firm consisting of two or more persons, or of a single person trading under the name pf a Firm, shall be bindipg on the jperson making such promise, in respect of any thing don§ or omitted to be done after a change; sj^iall have taken place in the constitution of the.^^irm, by the in- crease or dirninutipn of thq members, thereof, unless the in- tention of the parties tha|; such promise sh^^l continue to be binding notwithstanding su,ch change, shall appear either by express stipulation, or by necessary implication from the nature of the Firm or otherwise. 3. In case of any action founded upon a Bill of Exchange, or other negotiable instrument, it shall be lawful for the Court or a Judge to order that the loss of such instrument shall not be set up, provided an indemnity is given to the satisfaction of a Court or Judge, or the Clerk of fhe Pleas, against the claims of any other person upon such negotiable instrument. 157 25 VICTORIA, CAP. XXV. An Act in amendment of the Law relating to Judgments, Executions, and proceedings thereon. Section. Section. 1. Interest to run after judgment signed. 2. Interest, how recovered. Passed 23rd April, 1862. Be it enacted by the Lieutenant Governor, Legislative Council, and Assembly, as follows : — 1. That in all cases after the passing of this Act, in which judgment for any debt or damages should be duly signed in any Court of Record in this Province, interest may be reco- vered thereon from the time of signing of such judgment. 2. Such interest may be recovered by being endorsed to levy on the execution issued on such judgment. 27 VICTORIA, CAP. XLI. An Act relating to Foreign Judgkients. Passed 13th April, 1864. Be it enacted by the Lieutenant Governor, Legislative Council, and Assembly — That in any action now pending or hereafter to be insti- tuted in any Court in this Province on a Foreign Judgment, where the defendant was not personally served with the original process or first proceeding in the suit, within the jurisdiction of the Court where the said judgment may be obtained, it shall be competent for the defendant to enter into the subject matter of such Foreign Judgment and to avail himself of any matter of law or fact which would have been available as a defence, had the action on which such judgment was had and obtained been originally brought and prosecuted in any of the Courts of this Province ; provided always, that notice of such defence shall be given in like manner as is required by the course and practice of the said Courts, any law, usage or custom to the contrary notwith- standing. LIST OP SOME OF THE MODERN REPORTERS, &c. 4 COURTS. ABBREVIATIONS. EEPOETEKS. APPEAL. House of Lords, H. L. Cas. Clarke, New Series. CI. & Pin. Clark and Finnelley. Dovr. P. C. Dow. Dovr & CI. Dow and Clark. House of Lords, Macq. H. L. Cas . Macqueen. (Scotch Appeals.) Privy Council, Moore, P. C. C. E. F. Moore. Privy Council, Mioo. Ind. App. E. F. Moore. (Indian Appeals.) Privy Council, Lush. Lushington. (Admiralty Appeals.) DeG. M.&G. De Gex, Macnaughten & Gordon. Chancery, De G. P. & J. De Gex, Fisher and Jones. DeG. &J. De Gex and Jones. Divorce & Matrimonial, S. &T. Swabey and Tristram. Bankruptcy, DeG. M.&G. DeGex, Macnaughten & Gordon. De G. & J. De Gex and Jones. Exchequer Chamber, ) C. & L. C. C. Cave and Leigh. Crown cases reserved, 5 Cox, C. C. COK. Eegistration Election K; & G. Keane Jind Grant. Appeals, COMMON LAW. i Queen's Bench, El. & EL- Ellis sind Ellis. EL B. & El. Ellis, Blackburn and Ellis. EL & Bl. Ellis and Blackburn. El. B. & Si Ellis, Blackburn and Smith. B. &S. Best and Smith. D. &M. Davison and Merrlvale. Q.B. Adolphus and Ellis, New Series. G. &D, Gale and Davison. Har. & W. Harrison and WoUaston. N. &M. NevUe and Manning. N. &P. NevUe and Perry. P. &D. Perry and Davis; W. W. & H. Willnipre, WoUaston and Hodges Common Pleas, C. B. Mannipg, Granger and Scott. C. B. N. S. Scott. M. & Sc. Moore and Scott. Marsh. Marshall. Exchequer, H. &C. Hurlestone and Coltman. \^ H. &N. Hurlestone and Norman. si Exch Kep. Welsby, Hurlestone and Gordon. M. &W. Meeson and Welsby. ^^"•^ M'Clel. & Y. M'Cleland and Younge. Tyr. & Gr. Tyrwhit and Granger. Y. & C. Ex. Younge and CoUyer. C. &J. Crompton and Jervis. Youn. Younge. 159 COURTS. EQUITY. Chancery, generally, ABBREVIATIONS* Cf . & I-h. Coll. Coop. JMck. llaU & T. Jac. & W. Myl. & K. Myl. & Cr. Mac. & Gord. Tur. & Euss. Y. & C. Ch. V. Johns. Lord Chancellor's Court )De G. M. & G. Lords Justices Court, ) I'e G. & J. De G. F. & J. DeG. d. &S. REPORTERS. Craig and Phillips. CoUyer. Cooper. Dickens. HaU and Twells. Jacobs and "VValkef . Myln and Keen. Mylne and Craig. Macnaughten and Gordon. Turner and Russell. Younge and Collyer. H. R. Vaughan Johnson. De Gex, Macnaughten & Gordon, De Gex and Jones. De Gex, Fisher and Jones. De Gex, .Tones and Smith. Beavan. Vice Chancellor's Court , Hare, Hare. V. C. Kinderley's Court, 1 Drew. & Sm. Drewry and Small. V. C. Wood's Court, Hem. & M. J. &H. K. & J. Kay, John. Hemming and Miller. Johnson and Hemming. Kay and Johnson. Kay. Johnson. V. C. Stuart's Court, Giff. Sm. & G. Giffard. Small and Giffard. OTHER COURTS. Divorce & Matrimonial, S. &T. Swabey and Tristram. Probate Court, S. &T. Swabey and Tristram, Admiralty, Lush. Rob. Adm. Dods. Adm. Swa. Lushington. Dr. Robinson's Reports. Dodson. Swabey. Nisi Prlus, Circuits, and Chambers, F. &F. C. & Kir. C. & Marsh. Foster and Finlason. Carrington and Kirwin. Carrington and Marshman. All the Courts, Jut. N. S. W. R. L. T. N. S. L. M. & P. Jm-ist, (New Series.) Weekly Reporter. Law Times, (New Series.) Lowndes, Maxwell and Pollard, (Practice Cases.) Common Law, Equity, f Matrimonial, Admiralty >L. J. N. S. and Probate, 5 Ecclesiastical, Dea.&Sw.Ecc.E. Hag. Registration Elections, Knapp & O. Per. & K. Ball Court Cases, L. & M. -GeoMBeB Cases reserved, Dear. & B. ^^^U»^ci:^j ■ Eew'.C.C. p. &D. Law Journal, (New Series.) Deane and Swabey. Haggard. Knapp and Ombler. Perry and Knapp. Lowndes and Maxwell. Dearsley and Bell. Denison. Lewin. Pearce and Dearsley. COURTS. Bankruptcy, ABBREVIATIONS. Mont. & AjT. Mont. &B. Mont. D. & D. Mont. & M'Ar. Dea. & Ch. REPORTERS. Montague and Ayrton. . Montague and Bligh. Montague, Deane and X)e Gcx. Montague and M'Arthur. Deacon and Chitty. IN THE IRISH COURTS. COMMOJSr LAW. Queen's Bench, Exchequer, EQUITY. Chancery, Jebb ,& iSy. ' FoX&Sm. Cooke & Ale. Batty, Ale. & Nap. Jones,- Long & T. Hayes, Hayes &;Jon. Jones & 1/at. Drury, Dr. & War. Ball & Beat. Moll. Sch. & Lef. Lloyd & G. Jebb and Bourke. Jebb and Symes. Fox and Smith: Cooke and Alcock. Batty. Alcock and Napier. Jones. i ■ . Longfleld and Tpwnsei^df Hayes. , " ' ' Hayes and Jones; Jones and Latouche. Drury. Drury and Wa;rren. Ball ahd Beattie. JVIolloy. SchoaWs and.Lefroy. Llo^yd and Gould. INDEX TO EQUITY RULES AND STATUTES. JSTote.— -Where italics are used, it denotes that the Rule, &c. referred to would seem to have been expressly or impliedly rescinded or becomTobsoTete ^"°^'!--5of « "^J^" later "decisions and references set out in the notes to the several Sections of the Act 17 Vic. c. 18, have been taken from Morgan^s (chancery Act and Orders, or Seton on Decrees, 3rd Ed. Abatement. Practice in cases of, generally, 56 ; on transmission of interest, or liability or death of a party, no biU of revivor or supplementary biU necessary 57, 126, ' Absent Defendant. Appearance where not si-med with, process, 14; proceedings against 38- when he has a known place of residence abroad, order for appearance and proof of service, 81 ; on decree against, sequestration may be or- dered or possession given to plaintiff, &c. 62 ; if he return to the Pro- vince within two years, copy of decree to be served on him, if dead his heir to be served, and how and when decree confirmed, 63; how and when reheard, 64; when the heir of, is a married woman, infant, or non compos; or if the personal estate of, has been sequestered, who shall be served with copy of decree and when, 63. Administration Ad litem. When granted, to whom, and in what cases, 51. Admissions in PLEADrsG. Sow settled, 45 : Section referring to, repealed, 31, Affidavit. How to be drawn, and when filed, 56 ; copies, except in Injunction cases and ex parte petitions, to be served, and those in reply and answer, when, 56 ; when no appearance, not necessary to serve copy of, unless ordered by a Judge ; nor copy of, of service of process, notice, or other paper, 32 ; answer, when used as, 39 ; general requisites of, 103 ; in- cludes affirmation, 25 ; for injunction, 39. Amendment. To bill and plea, 43, 124, 5, 6 ; application for, to bill may be by petition, and state the nature of, 22; at hearing, 54; new facts maybe added by, 87; when misjoinder of plaintiii renders modification of decree necessary, 54; making a plaintiff a defendant, ^4. Answer. How sworn to, 8 ; to be endorsed with Solicitor's name and filed, 8 ; when necessary to amend, and it is not done, bill may be taken pro con- fesso, 8 ; what defendant not bound to, ,17; general terms of, 24; after service of hill, time to, 7 ; time to file miless flirther time given, 42 ; defendant though not required, may, 4S ; any thing material to defence may be insisted on, 43 ; documentary evidence only to be referred to, 43 ; where defendant might have demurred, may decline by answer, to, 19 ; when exceptions to, must be filed and submitted to a Judge, 44 ; taken and filed same as affidavits, 45 ; impertinence in, what, 17 ; not bound to, unless particularly interrogated, 17 ; defendant may put in, although plaintiff does notchoose to file interrogatories with the bill, 22 ; must traverse such parts of interrogatories as are not intended to be admitted, 43. See Churton v Frewen, 35, L. J. Ch. 97, as to filing sup- plemental answer to correct a statement which defendant has subse- quently discovered to be erroneous. The Court must be satisfied that the statement was a mistake when it was made. 21 lOi; [_ii/QuiTy. Atpzxl. From decision of a Judge, 34 ; time for, 60 ; and how and when to be made, 61; what pleadings, evidence, papers, to be used on, 61; no writ of error or appeal from the Court, except to the Queen in Conncil, 61 ; from decision of a Judge of Probate, 61. Aepeaeanoe. Time for, 6; mode of, 6; order for, when party out of Province, 14; order for, when party has known residence abroad, and hotv obtained, 31 ; proof of service of order for, 31 ; when party out of the limits of Pro- vince, order for, 38 ; of executors in administration suft, 58 ; of party where decree has been obtained against him whilst absent, and he seeks a rehearing, 63 ; of infant defendant, 23, 72. Assistance. Writ of, when ordered in certain cases, 16. Attachment. With proclamations, not necessary, 7 ; writ of, unnecessary in certain cases, 16. Bill. General contents of, and when to be filed, 39 ; to be endorsed with name , of Solicitor, 6, 8 ; form of, 65 ; with whom filed, 36 ; prayer for general relief not necessary, g& ; may be sworn to, but not necessary, 40, 85 ; before wbom sworn, 8 ; when to beserved on defendant's Solicitor, 41 ; if no demurrer, piea or answer filed, when to be taken pro eonfes$o, 42 ; where no appearance, may be taken pro confesgo without notice, 86 ; further time to appear, plead, answer or demur to, 42 ; dpfects in, how amended, 43, 54 ; suggestions of death entered on, 56 ; new facts, how added to, 22, 87 ; of foreclpsure oi", mortgage, proceedings in, 74 ; of p-artition, 78; under repealed Statutes, "■ -BiQUITY.] 1(J5 Exceptions. For impertinence abolished, 44 ; to answer, or to answer of plaintiff to interrogatories, how and when determined, 44; for insufficiency of answer to bill, 44. Execution. To enfore decrees and orders, 61 ; form of,. 67. Executors. Administration summons against, 58 ; by and against in administration suits, 49, 50, 51 ; when they represent cesttiis que tmsts, 51 ; revivor by and against, 56, 7, 8 ; may concur in special case, 89 ; protected in act done under declaration in special case, 91 ; when out of the Province how proceeded against, 38; with power of sale when considered trustees, 51. Fees. Of Examiner or other officer, 80; of Clerk, 81; of Solicitor, 82; of Counsel, 82 ; of Sergeant at Arms, 83 ; of Sheriff, 83. Foreclosure. Whether cestuis que trusts necessary parties to, 51 ; proceedings under bill for, 74, 5 ; deed of officer on sale, its effect, 75 ; how proceeds dis- posed of, 76 ; defendant may pay aU moneys due and costs before sale or, 76 ; decree to stand for Security for what may not be due, 76 ; sale of whole or part may be ordered, 76 ; who entitled to surplus, 77 ; date of mortgage, &c, inserted in, and amount claimed, endorsed on sum- mons, for, 85 ; when Judge may assess without notice, 86 ; when memorial of decree registered, copy of, evidence, 86. Forms. Of summons, 64 ; of biU, 65 ; cf order for injunction, 65 ; of interroga- tories for answer, 66 ; of answer, 66 ; of summons in administration suit, 67; of execution to enforce decree, 67; of execution against goods and chattels, 68 ; of affidavit as to production of documents, 68 ; of memorial of decree, 91. Frauds, Statute of Whether to be pleaded where no answer is required, 43, Future Eights. Court will not declare, 56, 91. Gaols. Common, to be the prisons of the Court, 37. Guardian to Infant. Appointment of, generally, 14 ; what petition must set forth, 15 ; report of master how confirmed, 15 ; when infant's property not rnore than £300 no reference necessary, 15 ; when not more than £1,000 no reference necessary, 73 ; ad litem, how made, 72 ; when to give bond, 72 ; when recognizance, 73. Hearing. On viva voce evidence at Monthly Sittings or Circuit Court, 45 ; order for, how made, 32 ; on evidence taken before Examiner or in answer, &c., 46, 85; after Issue by replication, 86; notice of, 11. Impertinence. How objected to, 44. Indemnitt. , To Executors, &c. acting on declaration made in a special case, 91. Infant. , . , When notice of decree binding on, 50 ; cestui que trust when represented by trustee, 51 ; not Included In special case, 89, 126 ; when seized of land in trust for others may be ordered to convey, 72 ; maintenance and education of, 72; real estate of, sold, unless contrary to terms of will or conveyance giving it, 73 ; conveyance by guardian of, 73 ; when considered a ward of Court, 73; general guardian of, 14; ad litem, 72; when property does not exceed £1000 no reference required to appoint guardian, 78 ; when decree made against, for want of appearance, or of a plea, answer, or demurrer, 23, lG(i [Equity. INJUNCTION. Before hearing, granted on special cause shewn, and by order, instead of writ, 39 ; ■\\lien and how order for, obtained, 39 ; papers used on application for, left with Judge or filed, 39 ; immediate order for, may be granted without notice, 40 ; order for, of same power as writ, 40 ; breach of, 41 : cases and decisions on application for, 40, 1 : where necessary to have legal right tried for purposes of, how done, 48 ; may be granted in administration summons case, 59 ; answer used as affidavit on application for, 39 ; to restrain from making public, docu- ments produced under order of the Court, 48 ; not affected by amend- ment unless the record be changed, 41 ; to sta}' proceedings at law, 12. Interrogatokies. Not to be inserted in hill, 17; how entitled, &c., 18; for examination of defandant, when to be filed, 41 ; how made up, 42 ; ou order to revive, 58 ; none to be filed on reference,' commission of partition, &c. 70 ; filed by defendant, for plaintiff to answer, 44. Insuffioienct, Exceptions for. To defendant's answer, and plaintiff's answer, to interrogatories, and how disposed of, 44; ' Issue. . , At la,w may be ordered by Judge, 48 ; if necessary to determine legal right in injunction. Judge may direct the Sheriff to summon Jury, &c., 48 ; if case necessary to be stated, Judge may settle it, 49 ; new facts, how put in, 87. Judge. The meaning of the term in Act 17 Vic. c. 18. 37. Jurat. Of aflldavits, 103, 4. Lands. . , ,.- ,\ When in administration suit they may be sold, 88 ; when decree directs payment of money a memorial binds, 61 ; execution to enforce decrees, binds, 62 ; when decreed to be sold for any purpose the owner deemed a trustee, and the Coiirt by order vests title in purchaser, 88 ; under mortgage, how sold, 74 ; deed of officer a bar, 75 ; when held by infant by way of mortgage or trust, how sold, 72 ; contract for sale of by ancestor, how enforced against infant heir, 72 ; partition of, how effected, 78 ; decree vests title, 79 ; summons to administer, 58. Law. To restrain proceedings at, 40; questions of, may be decided by a Judge, 49 ; trial at, ma:y be ordered by a Judge, 49 ; question, • not necessarj' to be determined, cannot oe decided by Judge, nor where infants are parties, 126. Legal Right. Decree declaratory of mere, not made, 126 ; how determined where neces- sary in Equity proceedings, 48 ; decree of future or prospective, not ' made, 56, 89; . ' Legatee. Administration suit by and against, 49 ; summons for administration by, 58. . Lunacy. Proceedings on, still conducted in Chancery, 33. MAINTr.NANCE AND EDUCATION. Allowance for infants, how obtained, 72. Married Women. Estate of, may be administered under summons, 59. Master in Chancery. Office of, abolished, 36; report of, what it should contain,. 20; Master or the Eolls. Office of, abolished, 36 ; made one of the Judges of the Supreme Coxat, 86. Equity.] 167 Meaning of Words. Singular number, masculine iiemler, affidavit, person, 2i ; party, legacy, legatee, residuary legatee, 25. Memowal. Of decree, when to bind lands, 61, 79, 8G : of entry in book kept of decree, evidence in Court and for registry, GO. SIlSJOINDER OF PlAIXTII F. No suit to be dismissed on account of, 53 : whore plaintiff having an in- terest dies leaving a plaintilf without interest, Judge may Order suit to standrevived and proceed to a decision, 5-t. Mistake. Any, made by a party in reference to practice, how and when rectified, 53. iloiTBY. Under control of the Court, how invested and distributed, 61. MOKTGAUE. AVl'.en ordered to be produced, +7; as to sale or forclosnre of, 74, 76; when principal and interest are paid Judge may order mortgagee to enter satisfaction in Eegistry Office, 77; when satisfaction to be en- tered by the Registrar, 77 ; general proceedings to foreclose, &c., 75, 6, 7. Kew Trial. Where issue tried at Law, 18 ; when tried before a Judge in Equit}^, 49. IfEXT OF Kin. Administration of Estates on summons, by, 58; parties to administration suits, rules as to, 49 ; Court will appoint when administration refused by, 52. KOTICE. Of appearance, G ; of decree when to bind persons not parties to a suit, 50 ; of decretal order when to be served on party out of the jurisdiction, 59 ; judicial to be taken of returns to commissioner, &c., 45 ; for hear- ing when evidence taken before examiner, 46, 85. Oath. Of examiner, 13, 36 ; by examiner to witness, 36 ; of officer to whom a reference is ordered, 69 ; by whom administered generaDy, 96. Okdeb. For absent defendant to appear, 38 ; for injunction, 39, 40, 1 ; for^ro con- fesso, 42 ; for amendment, 48, 124 ; on impertinence, 45 ; for hearing, 45 ; for postponement of hearing, 86; for production of documents, 46 ; for trial at law, 48 ; for summoning jury in equity, 48 ; where no personal representative, 51; for dismissal of cause, 53; to revive, when plaintiff having interest dies leaving a plaintiff without interest, 54 ; in case demurrer sustained, 55 ; to revive in case of death or transmission of interest or liability, 56, 126 ; for administration of real or personal estate, 58 ; for sale of real estate, 66, 88 ; for reference, 69 ; in reference to infant's property, 72, 3 ; in foreclosure and sale of mortgaged property, 74, 5, 6, 7; for commission in partition, 78; to vest title, 88. Pakchment. Patent, use of, abolished, 124. Pasties. -When absent bound by decree, 50 ; adjudication between some, in absence of others, 54 ; discretion of the Court when no personal representative, 51 ; misjoinder of, no cause for dismissal, 53 ; necessary, coming into existence pending a suit, 126 ; necessary in administration suits for protecting property during litigation, for execution of trusts, respect- ing waste, 49, 50 ; new, when brought in by amendment or supple- mental order, 87 ; objection for want of, not allowed, 49; setting down for want of, abolished, SI ; bound by statements in special case, 90 ; in special case, 88 ; where want of, objected to at hearing, decree may be made saving rights of absent persons, 20 ; seelcing equitable relief in certain cases, 21; form of bills, 25 to 30; not necessary to a^uit although owners of property under the same settlement, &c. 54. 168 [Equity. Partition. Proceedings In, 78. Plea. When held good unless set down for argument, 19 ; not bad beca.use it does not cover as much as it might, 19 ; nor because answer may extend to some part of the same matter, 19 ; time for filing, 42. Pleadings. Copies of, to be made and served by and upon Solicitors respectively, 36 ; copies of, by and upon Solicitors, 7. Practice. Of the English Court of Chancery, how far applicable, 34. Pro Confesso. When bill taken, for want of appearance, &c. 42 ; when notice not neces- sary to take a bill, 86 ; for not appearing to subpmna, 7. Process. Efot to be objected to for mistake In christian name or initials, 38. PRODUCTioif OF Documents. Order for, how obtained, 46 ; though possession not charged in bill, 47 ; who to inspect ; information obtained not to be published ; lien for costs no objection ; whether enforced against party who has obtained ; what are privileged ; and whose the privilege ; to be returned when object attained, 46, 7, 8 ; decisions in cases for, 47, 8. Protection of Property. During litigation, 49. Publication. Of evidence dispensed with, 46. Real Estate. May be ordered by the Court to be sold, 61, 72, 74, 78, 88 ; summons for administration of, 58. Heal Eepresentation. Dispensed with, in a suit, 49, 50. Rebellion. Commission of, abolished, 7. Rb-hearing. When not allowed, 60 ; petition for, 21 ; when party against whom in his absence a decree has been obtained, returns, 63. Replication. Cause at Issue by, 8; when at Issue by, how and upon what notice, cause heard, 86, Residuary Legatee and Devisee. When they may have administration of testate without making the co- claimants parties, 49. Review, Bill op When it may be filed by party feeling aggrieved, 50 ; when not allowed, 60. Revive. Order to, 64. See Order. Revivor, Bill op Where necessary, 57 ; interrogatories maybe filed on, 58 ; when order to revive may be made without, 34, 56, 7, 8 ; not necessary to set out statements in original pleadings, on, 20. Sali;s OP Real Estate. .; How and by whom to be conducted, 61. Scientific Persons. May be employed by the Court to test documents, &c., 48. Sequestration. To compel performance of decree against party out the jurisdictipn, 62. ■ See Spokes v Bunbury Bd. Health, 35, L. J. Ch. 1Q5, as to issjie of, against a Board of Health for breach of iiyunction. Equity.] 169 Sergeakt at Arsis, For performance of decree, 16. Sheriff. Execution of process, by, 37. S1GSA.TDRE AND Official Seal. Of Notary Public or Commissioners, &c., made out of the Province, judicial notice to be taken of, 102. Six Clerks. Duties of, transferred to Registrar, 5 ; now the Clerk in Equity, 36. Solicitors. Privileged communications between client and, 47 ; to make and deliver copies of pleadings, 36 ; to prepare all4)rocesses for signing and seal- ing, 36; to endorse and file bills and subpoenas, 6. Special Case, Who may concur in, 88 ; to be signed by the Solicitors of all parties, 89 ; does not include infants, 126? further proceedings under, 90, 1. Statutes — Relating to Practice and Evidence. See Index to Common Law Rules, &c., post. 19 "Vic. c. 41 — An Act in further amendment of the Law, 92. 26 Vic. c. 20— An Act relating to the Law of Evidence, 100. 27 Vic c. 40 — An Act relating to Affidavits, Declarations and Affirma- tions made out of this Province for use therein, 101. 21 Vic. c. 3 — An Act to compel the attendance of Witnesses under com- missions from other countries, and in further amendment of the Law of Evidence, 104. 3 Vic. c. 65 — An Act to amend the Law of Evidence in regard to the proof of Records and Letters Patent, 106. 21 Vic c. 20 — An Act to amend the Practice of the Law, 149. 21 Vic. c. 24 — An Act in addition to Cap. 113 of Title xxx, of the Revised Statutes, '-Of Judgments, Executions, and proceedings thereon," 150. 22 Vic. c. 21 — An Act to modify the Laws relating to Interest and UsurT, 151. 22 Vic.'c. 22 — An Act in amendment of Cap. 116, Title xxx, of the Revised Statutes, "Of Bills, Notes, and Choses in Action," 152. 23 Vic. c. 30 — An Act in further amendment of the Law, 155. 23 Vic. c. 31 — An Act to amend the Law relating to Guarantees, Bills of Exchange, and Promissory Notes, 155, 25 Vic. c. 25— An Act in amendment of the Law relating to Judgments, Executions, and proceedings thereon, 157. 27 Vic c. 41— An Act relating to Foreign judgments, 157. Statutes Repealed.— Inserted for reference, viz :— ^ „ „ ^ ..u 1 Vic c 8— To authorize the appointment of a Master of the Rolls to the Court of Chancery in this Province, and to provide for such officer, 109. 2 Vic c 37— An Act in amendment of the Act relating to the appoint- ment of a Master of the Rolls in the Court of Chancery, .HO. 2 Vic. c. 35— An Act for the improvement of the I'ractice m the Com t of 2 Vic'c^sl— AnAct relating to the partition of lands, tenements, and 52^Geo'? 3? cTa-ln Aci to amend an Act intituled An Act to provide for the more easy partition of lands, &c., 114. . «,„ ht 2 Vic c 38-An Act to authorize the sale of mortgaged Premises, &c., 117. 26 Geo 3, c. 14-An Act for prevention of Frauds and Perjuries, 119. notiecessary,8; for witness to attend hearing, 46. 9.9 170 [Equity. snntmons tvouIcI effect same object, 59 ; Court may give conduct ofj 50 ; declaratory decree may be sought by, 56 ; mi^oinder o^ plaintiff no cause for dismissal, 53. SnsorONS. All causes in Equity, except injunctions, commenced by, 38 ; form of, 64 ; to contain names of all defendants, 38 ; ii> foreclosure cases date of mortgage, &c. must be included in, and amount endorsed on, 85 ; when returnable and how served, 38 ; administration of estates, 58 ; form of, 67 ; cases where administration summons granted, 50. . SCPPr.ElMEMTAL BlLI.. When not allowed, CO. Tesdek. By filing written offer to confess damag^es, 83. Time. For service of affidavits, 56 ; to answer, plead, or demur, i2; fot appear- ance, 38 ; for motion to take bill pro eonfesso, 42 ; for appeal, 60 ; to file a bill, 39 ; to file interrogatories to bill, 41 ; to file interrogatories to plaintiff, by defendant, 44 ; for setting cause down for hearing, 45, 46, 86 ; when different time in England between town and country causes the latter to be the rule, 8 ; allowed for taking a step in proceedings to be exclusive of the day of commencement, 11; to move to dismiss cause for not taking step, 53 ; for assessing amount due on mortgage by the Judge, 74, , TEansmission or Ikteeest or Liability. See decisions ou, 57, 8, 126. TRnsT. When partial administration of, directed, 55 ; rules as to parties to suits for execution of, 49 ; when in an infant, how enforced, 72 ; when it includes constructive trusts, 88. Tebstee. May obtain decree against any one for whom trust is held, 49 ; when he represents party beneficially interested, 50. Vesting Okdek. After decree for sale of lands, 88. Ward or Coukt. When infant becomes, 78. Will. Persons interested under, may obtain administration summons, 58. WiTKESS. No. rule t,o- produce, necessary, 9 ; interrogatories to examine, 9 ; cross in' terrogatiqns and exmninoitionof, 10; cross interrogations not signed by Counsel, 23 ; examination of, when out of the jurisdiction of the Court, 45; examination of, viva c,oce in open, Court or at Nisi Prius, 46, 86; subpoena for attendance of, 46 ; on trial of a legsil right, 49 ; examined viva voce on a reference, 70; party may be, before reference, 70; Soli- citors may issi^e subpoena for, 71 ; not incapaoitftted ftom crime or interest, 92 ; not to criminate himself, 93 ; husband and wife when, for or against ea,ch other; 93 ; when and how credit impeached, 97 ; cross examination as to former statement, 93 ; how examined on previous written statement, 98 j may be questioned as to conviction of felony, 98 ; to appear and testify on motion or summons, 99^ how compelled to make aflJdavit in civil actions, &c., 99 ; how compelled to attend before commissioners appointed from abroa.d, 195. Writings. When copies served may be proved at hearing without subscribing wit- ness, 53; when filed in public office certified copy evidence, 106; how used on a reference, 70 ; when used on reference to be evidence before the Court, 91 ; maybe proved at hearing on notice given to Solicitor of opposite party, 53. - ' INDEX TO COMMON LAW UTILES AND STATUTES. Action, In trespass or case, declaration may be in cither form, 150 ; counts for ti-espass and slander luaj- be joined, J 50, (note) ; on foreign judgments where part.y was not served with process in original suit, he may set up any defence in law or fact wliich would have been available if action were brought upon original claim, 157; instituted in consequence of adultery in-any Court of Common Law or of Marriage and Divorce, not subject to provisions of 19 Vic. c 41, 93. Affidavit. Papers annexed to, to be marked with initials of Commissioner, &c. 132 ; except on affidavit of service of writs by Sheriff, 133 ; of illiterate per- son, to be read over. &c., and noted in the jurat, 132 ; where more than one deponent, jurat to contain the names, 132 ; for taxation of costs, to be filed, 184; for service of process at dwelling, 137; filed in British, Foreign or Colonial Court, how proved, 91 ; to hold to bail, or relating to judicial proceedings made before a Judge of a British, Foreign or Colonial Court, 94 ; on motion, when and how answered, 98 ; to obtain order to produce documents, 100; taken abroad, before whom and how proved, 101, 2 ; informality in, when made under 27 Vic. c. 40, no objection to, 103 ; for judgment as in case of a nonsuit, when served, 134; what it should contain, 135; when no notice of trial given, 146. Appeal Paper. In Equitj', how prepared and when heard, 140 ; in Pivorce and Matrimo- nial causes, how made up and when heard, 147. Appeaeaxce. Time for, to bailable and non-bailable process, 149 ; notice and filing of, sufficient without common bail, 149. Attachmext. When to be taken out, and how, 138 ; writs of, how issued from Crown Office, 146; when issued against witness refusing to appear before Cominissibners, 105. Attorxet. Application for admission of, 130; for admission as a Barrister, 130; service of papers on, 147 ; when a graduate of some and what Univer- sity, 143: signing judgment on a Warrant of Attorney, must set out the date of signing and mark the papers with his initials, 142. Bail. To Sherifl" may render principal at any time before return of process, 155 j may render after time for putting in special bail has expired, vfithout putting in special bail, 155 ; when render made Sheriff may take new baU, 155. See Special Bail. Babeistek. Admission of, 130; fromothcr Courts, 131 ; from other Colonies admitted ad eundem, 140, BiLI, OF EXCEPTIOXS. To a Judge^s construction of a Statute or Ordinance of a Foreign State or British Colony, 101. Bill of Yokk. Abolished, 149. Bills of Exohaxge. See Promissory Notes, Cause. Must be entered before signing interlocutory or final judgment, except in warrants of Attorney, 132 ; when not entered on account of proposal to settle, Court refuse to allow, it to Ije entered, 133 ; so wlien- trial had taken plaw without ^ntry of, 133. .. , . 172 [^om..;onLaav. Commissioners. To take affidaTlts, &c. out of the Province, 101; oath of, 102; signature of, to a return need not be proved, 102; appointed from abroad.t&act, how may order attendance of witnesses and production of books, &c. 105. Common Bail. Not necessary in any case, 149. Comparison op Writing. When and how made, 98. Costs. Affidavit used on taxation of, to be filed, 134 ; names of witnesses, atten- dance and travel to be specified in bill of, 134 ; when review of, tax- ation refused, 134 ; expense of exemplification or copy of bill, record, or letters patent, made taxable, 108 ; of examination of witness who refuses to make affidavit in a civil suit, 99 ; for refusal of witness to at- tend before commissioners, 105; of common bail piece not allowed, 149. CODETS. Nisi Prius Sittings for York, 131 ; judgments, decrees, or orders of British, Foreign or Colonial Courts, and affidavits, pleadings and legal documents fll^ therein, bow proved, 93. Crown. Provisions of 3 Vic. c. 65, (2 Eev. Stat. 344), extended to inquisitions, escheats, leases, licences, judgments and conveyances by, to, or from, or in favor of or against, and to records or rolls of judgment or decrees in Chancery by or against the, 100 ; grants ffom, how proved, 107. Crown Office. What blank writs may be issued by Clerk of, 146. Damages. On Foreign and Colonial Bills of Exchange, 153. Declarations, Affirmations, and Affidavits. Before whom made in. Great Britain and Ireland, in any Colony or Foreigh State, 101, 2; when made abroad not necessary to prove seal or signature of party taking, 102 ; before whom made for pm-poses of registration, 103 ; informality in the entitling or heading, or other formal requisites, no objection to their reception in evidence, 103. Decrees and Orders. Of British, Foreign, or Colonial Courts, how proved, 93. Deed. Proof of, for registration, when taken abroad, 103. Default. Offer to suffer judgment by, 83 ; when not more recovered, defendant entitled to costs, 84 ; offer, how accepted, 83 ; when not accepted, not to be evidence, 84 ; how judgments of, entered on the roll, 145 ; offer of judgment by, may be made before declaration filed ; must be signed by defendant himself; and if not accepted, will not prevent judgment, as in case of a non-suit, 145. Defence. Notice of, and order made in reference to, to be annexed to and filed with Nisi Prius record, 138 ; when several distinct grounds of, how made up, 144; objections to, when to be made and how disposed of, 144; notice of, may be allowed, disallowed, or amended, 144; notice of, when more than six per cent, interest is sued for, 151 ; notice of, in action on foreign judgment, 157. DivoBCE AND Matrimonial. Appeal paper in cases of, how made up, when, how, and upon what heard, 147, POCUMENTS. Which may be given in evidence in English Courts without proof of seal or signature ivnthenticating the same, or of the judicial or official char- Common Law. J 173 acter of persons signing the same, to be received in evidence in the same -svay in any Court in this Province, 9-t ; party forging any seal, , „ vxng an attesting witness, 98 ; may be ordered to be produced at hearing of any motion or summons, 99 ; order to produce, when a person refusing to make an atlidavit in a civil proceeding, is being examined before a Judge, 99; production of, in certain other cases, 100; to be produced before Commissioners appointed fiom abroad, 105. EviDEXCE. Of Proclamations, Treaties, and Acts of State of any Foreign State or British Colony, 93; of judgments, decrees, orders, and judicial pro- ceedings of, and of affidavits, pleadings and other legal documents filed in, any British, Foreign, or Colonial Court, 94 ; of documents which in the English Courts are received without proof of seal, stamp, or sig- nature, or of the judicial or official character of the party signing them, 94 ; affidavit to hold to bail, or in judicial proceedings when made be- fore a Judge of any British, Foreign, or Colonial Court, 94 ; of register of, or declaration ia respect of, any British ship, 95 ; of former con- viction of a ^^'itness on a trial, 98 ; by comparison of handwriting, 98 ; on motion or summons before a Judge, 99 ; examination before a Judge or other person of a party refusing to make an affidavit in a civil suit, &c., 99; affidavits, declarations and affirmations made abroad, 102; authentication by Mayor, &c. of a City, 106 ; Judge's notes of examina- tion of witness on lormer trial, how and when available on a subse- quent trial, 106 ; copies of any record, document, or writing, or parts thereof, filed in a public office, 106 ; exemplification of part of record or judgment roll, 107 ; exemplification or examined copy of grants from the Crown, 107 ; notarial protest of presentment and dishonor of bin of exchange, or promissory note, 154. EXAMIXATIOX. Of a person before a Judge when he refuses to make affidavit in a civU proceeding, 99. Exemplification. Of grants from the Crown under the Great Seal of the Province need not contain the conditions of the grant, 107 ; of plan or plat annexed to grant, 107. Felony ok Misdemeanok. t j<. * Conviction of, how and when proved against a witness who refuses to answer or denies the fact, 98. FoKEiGN Judgment. ^ ,. t, j i In action on, what defence the party sued nray set up when he had not been served with process in the original action, 157 ; notice of delence to, 157. ^^""ExemTliflcatPorXor certified or examined copies of, made evidence, 107. ^""'^Written promise to pay the debt, &c. of another not void because the ^nsWerltion does not appear in the writing or by necessary inference 156 promise to answer for debt, &c. of a firm, or made to a firm, shall not'b?nd when change has taken place in the constitution of the firm, 156. 174 [Common Lam'. in consequence of adultery in any Court of Common Law or of Marriage and Divorce, above provisions do not apply, 93. liSTEREST. Esite o', on loans and contracts, 151 ; contract for beyond legal rate not void but cajmot be recovered if objected to, 151; Banks not to take more than six per cent. 161 ; in what eases more than legal interest may be recovered, 152; maybe recovered on debtor damage after judgment, 157. Interlocutory Judgment. What memorandum of, must contain, HI ; cannot be signed before cause entered, 132. Judgment. On warrant of Attorney, confession, cognovit or retraxit, not to be. signed after a year, unless by order of the Court or a Judge, 133 ; on warrant of Attorney, made by an Attorney or Agent, 142 ; exemplifi- cation of part of a, may be used, 106; when set aside, how registered memorial may be cancelled, 150 ; interest may be recovered on, 157. Judgment as in case of Non-suit. When copy of affidavit to be served to move fol-, 134 ; what affidavit should contain, 135 ; when notice of trial hks not been given, 146. Judgments and Decrees. Of British, Foreign, and Colonial Courts, how proved, 93 ; to be authen- ticated by seal of tlie Court when there is one, if not, by signature of the Judge, which seal and signature and judicial character making it will be recognized without proof, 94 ; exempliflcation of part of, may , be .used, 107. JUDGMi5NT KOLLS. AVhen and how endorsed and liled, 133 ; ^ntry of interest on damages upon, 141 ; form of, in replevin when verdict for defendant on von cepit, 144; entry upon, of offer to suffer judgment by default, 145; entry where verdict not unanimous, 139. . .; Judicial Proceedings. -In British, Foreign, or Colonial Courts, how proved, 93; affldayltinj, when made before; Judge of British, Foreign or Colonial Court, to be acted upon, 95. Jury. When verdict not unanimous, how taken, 139 ; oath of constable to keep, 140. Letters Patent, Copy from Provincial Secretary's Office certified by that officer, or proved by \vitnBss as being a true copy, made evidence, 107. Mayor or Chief Magistrate. How any official act in reference to evidence, or for the purpose of regis- tration, may be authenticated, 106. Memorial op Judgment. . How cancelled after judgment set aside, 150; of deed, &c., for regisr tration, how; proved, 103., ' ■- ' Motions. , , , , , Day appointed for common, 148 ; when made on afiidavits, either party may answer upon new matter, 98 ; on hearing of, the Court or a Judge may order the production of documents and attendance of witjiesses, 99. ■ New Trials. , , i ■ . .From, Sittings in York, how and whfen moved and heard, 139, 146. Notice op Countermand. . , > ^ , ■ In writs of enquiry, within what time to be given, 134. , Notice of Defence. . To be filed with and, attached -to iVm Prints record, 188; when several distinct grounds, how to be made ,tip, 144; objections te notice for Common Law.] I75 duplicity, ^vitlnn what time nmde and how determined, 144: inaction on a foreign indgment, 157 ; when more than six per cent, interest is oojectcQ to, lol. HOTAKT PrSLTC. Signature and seal of, evidence witliout proof, 102. K'ovA ScoTi\ Grants. Proved by examined or certified copies, 108. Oath. Who may administer, to witnesses, 96 ; mad« or taken out of the Pro- vince, 102. Officer. ralsely certifying copies or extracts of documents, guilty of misde- meanor, 96. Urdek. Of the Court or Judge for production of documents or for witness to attend at the hearing of a summons or motion, 99 ; for examination of a person refusing to make affidavit in civil proceedings, 99. P.4KTIES. Prosecuting or defending in person not allowed to file papers vi ithout paying the fees, 134. Patext Parchmest. Use of, prohibited, 147. Pleadixgs. PUed in any British, Foreign or Colonial Court, how proved, 93. POSIEA. When verdict of jury not unanimous, 139 ; on verdict for defendant in replevin on non cepit, 142. Power of Attorxets. How proved for registry, 103. Process. Affidavit of service at dwelling, 137 ; when not served personally, and no order to perfect service, judgment set aside, 137 ; when service was not perfected but defendant knew suit was going on, judgment not set aside, 137 ; when defendant denies knowledge of suit, judgment not set aside, 138 ; affidavit to perfect sen ice of, to be made by the Sheriff or his deputy, 138 ; rules apply to Coroner and every writ or process, 138; service of, on non-residents, 142. Pbobate. How proved for the purpose of registration, 103. Pkoclamatioss, Treaties, axd Acts of State. Of Foreign State or British Colony, how proved, 93 ; provisions in reffer- ence to, extended to Acts of Legislature, &c. 105 ; to be sealed with the Public Seal of the State or Colony, 93. Peojiissort Notes. Falling due oncertain days, when payable, 153; what days specified, 154; when to be noted and protested, 154 ; when notice of dishonor to be given, 154 ; when payable out of the Province Notarial protest of pre- sentment and dishonor, evidence, 155 ; when loss of not to be set up as defence, 156. EaTE or IxTEKEST. What may be contracted for and what recovered in a suit, 151, 2. Rbcogkizaxce. Roll, or of bail, when and how filed, 133. Record. Trial by, when both parties give notice, 136 ; when party giving notice of trial by the, does not proceed, 136 ; copy of, filed in a public oflSce, and certified by officer, evidence. 106 ; portions o£, may be exemplified, 107. 176 [Common Law. Kendbk. By bail to the Sheriff, when It may be made, 165. Replevin. Forms of postea on verdict for defendant on non cepit, US; when defen- dant entitled to damages In, 144. Register. Of British Ships, how proved, 95. Service. Of papers on an Attorney, 147 ; of process at dwelling, 136 ; of process on non-residents, 142. Sheriff. May take new bail for appearance when former bail have rendered prin- cipal, 155. Special Bail. Time for putting in, 149 ; how plaintiff may proceed if not put in, 149. Statutes. — Relating to Practice and Evidence. 19 Vic. c. 41 — An Act in further amendment of the Law, 92. 26 Vic. c. 20 — An Act relating to the Law of Evidence, 100. 27 Vic. c. 40 — An Act relating to Affidavits, Declarations and Afflrma- mations, made out of this Province for use therein, 101. 21 Vic. c. 3 — An Act to compel the attendance of Witnesses under com- missions from other countries, and in further amendment of the Law of Evidence, 104. 3 Vic. c. 65 — An Act to amend the Law of Evidence in regard to the proof of Records and Letters Patent, 106. 21 Vic. c. 20— An Act to amend the Practice of the Law, 149. 21 Vic. c. 24 — An Act in addition to Cap. 113 of Title xxx, of the Revised Statutes, " Of Judgments, Executions, and proceedings thereon," 150. 22 Vic. c. 21 — An Act to modify the Laws relating to Interest and Usury, 151. 22 Vic. c. 22 — An Act in amendment of Cap. 116, Title xxx, of the Revised Statutes, " Of Bills, Motes, and Choses in Action," 152. 23 Vic. c. 30 — An Act in further amendment of the Law, 155. 23 Vic. c. 31 — An Act to amend the Law relating to Guarantees, Bills of Exchange, and Promissory Notes, 155. 25 Vic. c. 25 — An Act in amendment of the Law relating to Judgments, Ex;ecutions, and proceedings thereon, 157. 27 Vic. c. 41 — An Act relating to Foreign Judgments, 157. SiATnTBs, Acts, or Okdinances. Of Foreign States or British Colony, when construction may be given of, by Judge on trial, 101 ; decision of Judge maybe reviewed or a bill of exceptions tendered, 101. SUBP(ENAS. To prove execution of deed for registry, 135, 6. Summary Actions. When judgment by default may be entered, 149 ; after verdict plaintiff may sign judgment immediately, 150 ; where one of several plaintiffs or defendants dies, suit to be proceeded with in name of survivors, 145. Summons. Upon hearing on. Court may order production of documents, and atten- dance of witnesses to be examined viva voce, 99. Surviving Parties. Action may be continued in name of, in summary actions, where one of several plaintiffs or defendants dies, 145. Testimony. Of witness on former trial, how and when it may be read ftom Judge's notes, 106. Teste. Ot writs may be the day of issue", 149. CoMMOH Law. j 17T Trials. At Circuit Court when the verdict not unanimous, 139 ; by the record when both parties give notice, 13G ; when party giving notice fails to appear, 130. Warkaxt of Attoknets. No judgment to be entered on after a year without order of the Cotift ot a Judge, 133 ; judgment signed by order of a Judge upon insufficient affidavit not sot aside, 133 ; when made by an agent or Attorney, how judgment to be entered, lil, 2 ; when judgment signed, date and Attorney's name and initials on aU the papers must be made, 142 ; omission to do this only an irregularity, 142; when Clerk should reftise to sign judgment on, 142. AYnx. How proved for registry, 103. Witness. Not incapacitated from crime or interest, 92 ; plaintilT or defendant made, 93 ; need not criminate himself, 98 ; when he may afBrm or declare, 96 ; when party cannot impeach the credit of his own, 97 ; when and how he may contradict, 97 ; when on cross examination on a former state- ment, witness does not admit he made it, proof may be given that ho did, 97 ; when witness may be examined as to previous statement made by him in writing without shewing the same to him, and when he may be contradicted as to, 98 ; when may be questioned as to conviction of felony, &c., and when and how same may be proved, 98 ; attestiBg, to any instrument not requiring attestation need not be produced, 98 ; may be ordered by the Court or a Judge to attend and give testimony, on hearing of a summons or motion, 99 ; how ordered to attend before Commissioners, and consequence of refusal, 105 ; testimony of, on former trial, how used on subsequent, 106. Wbttin-g. Wien comparison of allowed, 98. May bear teste the day of issuing, 149 ; may issue m County of York aS iQ other Counties, 149 ; Bill of Yorli abolished, 149. Ekkata. — P. 159, liQC 4 from bottom, for " Common" read " Crown,'