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mons, or, having made Default on that Day, pays such Costs as the Court may think reasonable, and appears on the next Weekly Court Day after such Return, he shall, either then, or on such other Day as he may obtain from the Court, make his Answer to the Declaration, either in Writing or Verbally as he thinks fit, provided that if his Answer is Verbal the Clerk of the Court shall take down the substance thereof in writing, and preserve the same amongst the Records of the Court.
If the Plaintiff does not appear, or appearing does not prosecute his action, the same shall be dismissed with Costs.
Art. 5. If upon the Declaration and Answer, or such further Pleadings as the Court may, if it thinks proper, permit or direct, the Parties shall appear to differ essentially in their State of Facts, the Court shall ascertain and order the Clerk to take down in Writing, such Facts, material to the Decision of the Cause as it will proceed to receive Proof upon, and appoint a Day for hearing such Proofs as the Parties shall think proper to produce.
Art. 6. In all Cases where Witnesses are produced they shall be examined and Cross Examined, viva voce, in open Court, unless some good Reason is shewn to the Judges for departing from this Rule in particular Cases. The Examinations of the Witnesses shall be taken down in Writing by the Clerk, and filed among the Records of the Court.
Art. 7. In the Proof of all Facts concerning Commercial Matters Recourse shall be had in all the Courts of Civil Jurisdiction in the Prov ince, to the Rules of Evidence laid down by the English Laws'.
Art. 8. The Party meaning to Appeal from any Sentence or Judgment of any of the Courts of Common Pleas, shall sue out a Writ from the Court of Appeals, tested and signed by the Governor, Lieutenant Governor, or Chief Justice, stating that the Appellant complains of being aggrieved by the Judgment and therefore commanding the Judges of the Inferior Court, or any Two of them, to send up the Original Papers and Proceedings in the Cause, and Transcrips of all Rules, Orders and Preceedings found in the Records or Registers of the Court concerning the same; such Writ, when presented to any of the Judges of the Court below, shall be allowed by him, if the Appellant has given the requisite Security, and when allowed, the Clerk of the Court shall proceed to comply with the Order of the Writ, and the Judges, or any Two of them, shall make their Return against the Return Day thereof.
Art. 9. If the Appellant does not within Eight Days after the Return of the said Writ, and the Transmission of the proceedings, file his Reasons of Appeal, the Appellee shall obtain a Rule or Order, that unless the Appellant's Reasons of Appeal are filed in Four Days, the Appeal will be dismissed, and if the said Reasons of Appeal are not filed within Four Days after Service of the said Rule on the Appellant or his Agent, the Appeal shall accordingly be dismissed with Costs.
Art. 10. Within Eight Days after the Reasons of Appeal are filed, the Appellee shall file his Answers thereto, or if he neglects so to do the Appellant shall obtain a Rule or Order, that unless the Appellee file his Answers within Four Days he will be precluded from filing them after that Period; and if his Answers are not filed within Four Days after Service of such Rule on the Appellee or his Agent, he shall accordingly be precluded from filing them, and the Court will proceed to hear the Cause on the part of the Appellant, and proceed to Judgment therein without the Intervention of the Appellee.
Art. 11. The said Court of Appeals nevertheless shall and may, upon Application made, and good Cause shewn by either of the Parties (Notice being given the other) prolong the Time allowed for filing either the Reasons of Appeal or Answers thereto, and in case the Court shall not be sitting, at the Time when such Reasons or Answers ought regularly to be filed, the Party neglecting shall apply to the Court, at the next sitting thereof, and shew his Reasons for such his Neglect: and if the Court 1 Compare for this policy Carleton's Instructions, 1775, Section 12 (No. XXIX).
finds them insufficient, it will, as the case may be, either dismiss the Appeal, or proceed to hear it without the Intervention of the Appellee, as above directed.
Art. 12. When the Reasons of Appeal, and Answers thereto, are filed, the Court shall on the Application of either of the Parties, fix on such convenient Day for the hearing of the Cause as to it may seem proper.
Art. 13. If the Writ of Appeal is not allowed by one of the Judges of the Court below, and a Copy thereof served on the Appellee or his Agent within Fifteen days after any Judgment given in the Court of Common Pleas, Execution shall issue, and no Appeal shall be allowed or received from the Court of Common Pleas after the Expiration of one Year from the Date of the Judgment of such Court.
Art. 14. The Execution sued out from any of the Courts of Civil Jurisdiction shall be a Writ issuing in the King's Name, tested and signed, when issuing from the Court of Appeals, either by the Governor, Lieutenant Governor, or Chief Justice, and when issuing from the Court of Common Pleas, by one of the Judges of the Court for the District in which it is given, directed to the Sheriff of the District, setting forth the Judgment of the Court between the Parties, and the kind of Execution which the Law, according as the case may be, shall direct, whether the same be to take the Body, or to levy a Sum of Money out of any One's Goods and Chattels, Lands and Tenements, or to do any Special matter or Thing whatever; the Date of the Judgment shall be indorsed on every Writ of Execution, and that Indorsement signed by the Judge.
Art. 15. In all Cases where execution shall issue against Real and Personal Estates the Sheriff shall first dispose of the Personal Property, and if the Proceeds thereof fall short of the Amount of the Judgment the Real Estate or so much thereof, as will produce the Amount shall be sold for that purpose.
Art. 16. Where Moveables shall be seized by the Sheriff under an Execution, he shall cause the seizure to be published at the Church Door, of the Parish, immediately after Divine Service, on the first Sunday succeeding such Seizure, and at the same time cause to be proclaimed the Day and Place when and where he intends to proceed to the sale thereof, provided that the Place of Sale shall be in the same Parish in which the Seizure is made.
Art. 17. When Lands and Tenements shall be seized by the Sheriff under a Writ of Execution, he shall advertize the Sale thereof Three Several Times in the Quebec Gazette, to be on some certain Day after the expiration of Four Months from the Date of the First Advertisement, and proclaim the said Sale at the Church Door of the Parish in which the Premises are situated, immediately after Divine Service, on the Three Sundays next preceeding the same and Cause a Copy of the said Advertisement to be fixed on the Door of the Parish Church.
Art. 18. If Two or more Writs of Execution shall be issued upon Judgments given the same Day against the same Defendant or Defendants, and so marked on the Writs, such Executions shall have the same Privilege and be satisfied in the same Proportions, and the Sheriff, or other Person to whom such Writs of Execution shall be Awarded, receiving the same, is hereby authorized and Commanded, after the sale of the whole of such Defendant's Real and Personal Estate, where the Writ shall be awarded against both, in case the same should not be sufficie to satisfy the whole of such Judgments, to pay over and divide the Nett Produce of such sale or Sales, after deducting his own Costs and Charges, amongst the several Plaintiffs, in Proportion to the Amount of their respective Judgments.
Art. 19. On every Execution the Sheriff shall be allowed all his Disbursements, and shall be authorized to charge over and above at the Rate of Two and an Half per centum, to be deducted out of the Money he Levies.
Art. 20. Proceedings in Actions under £10 Sterling. In Matters either
not exceeding or under Ten Pounds Sterling, any Person having a Right of Action against another, shall prepare, or procure from the Clerk of the Court of Common Pleas, a Declaration .
This Summons shall be signed by one of the Judges of the Court, and a Copy thereof, and of the Declaration, served on the Defendant Personally, or left at his Dwelling House, or Ordinary Place of Residence, with some grown Person there; and the Person serving the same shall inform the Defendant, or such grown Person, of the Contents thereof. If, at the Time mentioned in the Summons, the Defendant does not appear (Proof of the Service thereof being produced in Court) the Judges, or any one of Them shall hear the Cause on the part of the Plaintiff, and make such order, Decree, or Judgment, and award such reasonable Costs of Suit, as to them or him shall appear agreeable to Equity and good Conscience; but if the Defendant does not appear by himself, or his Agent, and the Plaintiff, or his Agent, does not appear, or appearing does not Prosecate, or prosecuting, fails in his Action, the Judge or Judges shall dismiss the Defendant with Costs. If the Plaintiff makes good his Charge against the Defendant, the Judge or Judges shall give Judgment accordingly, and award Costs and Execution, but the Execution shall not issue till the next Court Day after Judgment given: the Execution shall go against the moveables only of the Defendant, which shall be seized by some Person to be for that Purpose appointed by the Court, and sold by him in the manner mentioned in the Sixteenth Article of this Ordinance. But the Execution shall contain an Exception of the Party's Beasts of the Plough, Implements of Husbandry, Tools of his Trade, and one Bed and Bedding, inless his other Goods and Chattels should prove insufficient, in which case such Beasts of the Plough, Implements of Husbandry and Tools of his Trade shall be sold, but not the Bed and Bedding. The judge or judges, may, if they think proper, order the Debt to be levied by Installments, provided the Time allowed shall not exceed the Space of Three Months from the Day of issuing the Execution.
Art. 21. In Matters, as well above as of or under the Value of Ten Pounds Sterling, if the Defendant shall convey away or secrete his Effects, an Execution shall go against his Person, to be taken and detained in Prison until he satisfies the Judgment.
Art. 22. For the Satisfaction of all Judgments given in Commercial Matters between Merchants, as well as of all Debts due to Merchants for Goods, Wares, and Merchandizes, by them sold, Execution shall issue not only against the Goods, Chattels, Lands and Tenements of the Defendant, but also, in case they shall not produce the Amount of the Plaintiff's Demand, against his Person, to be taken and conveyed into the Prison of the District, and there detained until he pays the Amount of the Judgment, or otherwise settles with and satisfies the Plaintiff: Provided, that if the Defendant after remaining one Month in Prison, shall make Application to the Court, and make an Affidavit that he is not worth Ten Pounds, the Plaintiff shall pay to the Defendant the Sum of Three ShilKings and Six pence weekly for his Maintenance as long as he shall be detained in Prison at the Suit of the Plaintiff; such Payment shall be made in Advance on Monday in every Week, in Failure of which the Court from whence the Execution issued shall order the Defendant to be released: but the Plaintiff shall not be obliged to make such Payment if he can prove, to the Satisfaction of the Court by which the Defendant stands committed, that the Defendant has secreted or conveyed away his Effects to defraud his Creditors.
Art. 23. When any Person against whom Judgment shall be given in any of the Courts of Common Pleas shall not have sufficient Goods Chattels, Lands or Tenements, to satisfy such Judgment within the Jurisdiction of the Court wherein such Judgment shall have been obtained, but shall have Goods, Chattels, Lands or Tenements within the Jurisdiction of the other Court of Common Pleas, it shall be lawful for the Judge or
Judges of the Court wherein Judgment shall have been obtained to award Execution to the Sheriff of the other District, who, after getting the Writ indorsed by one of the Judges of the Court for the District in which the Goods, Chattels, Lands, or Tenements are situated, shall execute the same, and make return thereof to the Court from which it issued; and such Writ and Return shall be by him sent to the Sheriff of the District from whence the Writ was originally awarded, to be delivered into the Court that issued the same.-The Sheriff executing such Writ shall be answerable for his Doings relative thereto before the Court from which it was originally awarded; and the Judges of the Court of Common Pleas for the one District may, in like manner, award Execution against the Body of a Person residing in the other in Cases where such Execution is by Law allowed; and the Sheriff executing the Writ to him in such case directed shall convey the Body of such Person into the Prison of the District wherein such Person shall be arrested.
Art. 24. This Ordinance, and the several Provisions and matters therein contained, shall remain in Force only during the Space of Two Years from the Publication thereof.
February 25, 1777.
AN ORDINANCE FOR ESTABLISHING COURTS OF CRIMINAL JURISDICTION IN THE PROVINCE OF QUEBEC.
[Trans.: Shortt and Doughty.]
March 4, 1777.
It is Ordained and Enacted by His Excellency the Captain General and Governor in Chief of this Province, by and with the advice and con sent of the Legislative Council of the Same, That,
There shall be, and hereby is erected, constituted and established for the Province at large, a Supreme Court of Criminal Justice and Jurisdiction, to be called and known by the name of the Court of King's Bench, for the Cognizance of all Pleas of the Crown, and for the Trial of all manner of Offences whatsoever; the said Court shall be held before the Chief Justice of the Province, or Commissioners that may be appointed for executing the Office of Chief Justice for the Time being, who shall hear and determine the said Pleas of the Crown, and of all manner of Offences whatsoever, according to the Laws of England, and the Ordinances of the Government and Legislative Council of the Province.
And for the Speedy Administration of Justice, and the preventing long Imprisonments, there shall be held in every Year, Four Sessions of the said Court of King's Bench, whereof Two Sessions shall be held at the City of Quebec, and the other Two at the City of Montreal, at the Times hereafter following, to wit, at the City of Quebec on the First Tuesday of May and the First Tuesday of November, and at the City of Montreal on the First Monday of March and the First Monday of Sep tember in every year: but nothing herein contained shall extend to pre vent the Governor, Lieutenant Governor, or Commander in Chief for the Time being, to issue Commission of Oyer and Terminer and Gaol delivery at any other Time or Times, when he may think it necessary and expedient so to do.
In each of the Districts of Quebec and Montreal there shall be held and kept, Four Times in every Year, a Court of General Quarter Sessions of the Peace, by the Commissioners of the Peace of each respective District, or so many of them as are or shall be limited in the Commission of
the Peace, who shall hear and determine all matters relative to the Conservation of the_Peace, and whatsoever is by them cognizable, according to the Laws of England, and the Ordinances of the Governor and Legislative Council of the Province.
The said Sessions for the District of Quebec, shall be held at the City of Quebec, and the said Sessions for the District of Montreal shall be held at the City of Montreal, on the days hereafter following, to wit, on the second Tuesdays of the Months of January, April, July, and October, in every year.
And Two of the said Commissioners of the Peace shall sit weekly in Rotation, in the Cities of Quebec and Montreal, for the better Regulation of the Police, and other matters and Things belonging to their Office; and the names of the Commissioners who are to sit in each Week shall be posted up on the door of the Sessions House, by the Clerk of the Peace, Two Days before their respective Sittings.
As the great extent of this Province may render it often impracticable for the Coroner of the District to give his Attendance at the different Places where it might be necessary, the Captains of Militia shall be and hereby are impowered, in their respective Parishes, when any marks of Violence appear on any dead Body, to summon together Six respectable Householders of his Parish, to inspect the same; and he shall according to their Opinion, report the manner and cause of such Death in writing, to the nearest Commissioner of the Peace, that a further examination may be made therein, if necessary.
And as great Inconveniences might arise from the want of Peace Officers in different parts of the Province, the said Captains of Militia shall be and hereby are impowered to arrest any Person guilty of any Breach of the Peace, or any Criminal Offence, within their respective Farishes, and to convey or cause to be conveyed, such Person before the nearest Commissioner of the Peace, to be dealt with according to Law. (Signed) GUY CARLETON.
March 4, 1777.
THE COLONIAL TAX REPEAL ACT', 1778
(18 George III, C. 12.)
An Act for removing all doubts and apprehensions concerning taxation by the Parliament of Great Britain in any of the Colonies, Provinces, and Plantations in North America and the West Indies; and for repealing so much of an Act, made in the seventh year of the reign of his present Majesty, as imposes a duty on tea imported from Great Britain into any Colony or Plantation in America, or relates thereto.
Whereas taxation by the Parliament of Great Britain, for the purpose Preamble. of raising a revenue in his Majesty's Colonies, Provinces, and Plantations in North America, has been found by experience to occasion great uneasiness and disorders among his Majesty's faithful subject, who may nevertheless be disposed to acknowledge the justice of contributing to the common defence of the Empire, provided such contribution should be raised under the authority of the General Court, or General Assembly, of each respective Colony, Province, or Plantation: And whereas, in order as well to remove the said uneasiness, and to quiet the minds of his Majesty's subjects who may be disposed to return to their allegiance, as to restore
This Act is more particularly concerned with the American Colonies. It is included here because the title may include Canada, though it is obvious that it did not repeal No. XXVI.