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the said Court shall receive from the Plaintiff the Sum of Six Pence, and no more, where the Original Declaration shall be produced and delivered to him, and the Sum of one shilling, and no more where he shall make out the Original Declaration himself, at the Request of the Party) shall be delivered to the Plaintiff or Plaintiffs, or his, her or their Agent or Agents, who shall convey, or cause the same to be conveyed, to One of the Bailiffs of the Parish in which such Defendant resides, who is hereby authorized and required to serve the same upon the Defendant personally, if he can be found, or otherwise upon his Wife, Son, Daughter, Servant, or some other grown Person, at his the said Defendant's Dwelling House, or usual Plac of Abode, and at the same Time to shew him, her, or them the attested Copy of the Declaration, together with the Writ of Summons annexed. under the Hand of the Judge issuing the same, and to acquaint him, her or them, with the Contents thereof, and to leave a Copy of the same at the said House; and the Bailiff serving such Process as aforesaid, is hereby further authorized and required to attest the said Service at the Foot of the said Writ of Summons, together with the Day and Time of serving the same, according to the following Form:

did on

Day of

I, G. H., Bailiff of the Parish of Personally serve the within-named Defendant with the Copy of the Declaration, and Writ of Summons annexed, by shewing him the same, and acquainting him with the Contents thereof, and by leaving a Copy of the same at his House with Defendant, such

being of the age of

the

of the said or thereabouts.

And this Copy of the Declaration, with the Writ of Summons annexed, and the Certificate of the Service so made by the Bailiff, shall be delivered by him to the Plaintiff, if thereto personally required by the Plaintiff himself, who shall pay the Bailiff, for the Service and Attestation as aforesaid, the Sum of one Shilling, and no more, which Sum of one Shilling, together with the Charges of issuing and returning the said Process, shall be allowed him in his Costs, in Case he shall obtain Judgment against the said Defendant in the Action; but in case the said Plaintiff shall not personally demand the Custody of the said Process, after such Service and Attestation as aforesaid, that then the Bailiff so serving and attesting the same shall forthwith return the same to the Court of Common Pleas from whence such Process issued, who shall direct the Costs of returning the same, together with the Fee of one Shilling for the Service and Attestation thereof, to be paid to the said Bailiff by the Defendant, if he shall be condemned in the Suit, or by the Plaintiff, if he shall discontinue the Action, or otherwise fail in the Proof of the Matter contained in his Declaration.

And it is further ordained and Declared, by the Authority aforesaid, That if any Defendant, after having been duly summoned as aforesaid, shall refuse to pay the said Debt and Costs, and shall not appear, either by himself or Agent, before the Court, at the Time and Place mentioned in the said Writ of Summons, it shall and may be Lawful for the Judge or Judges of the said Court, upon view of the Certificate of the said Bailiff as aforesaid, or other due Proof of the Service of the said Writ of Summons in Manner aforesaid, to hear the Cause on the Part of the Plaintiff or Plaintiffs only and to make such Order, Decree, or Judgment, and to award such reasonable Costs of Suit, as to him or them shall seem most agreeable to Equity and good Conscience: And if upon the Day of Return of such Writ, or on such other Day, as shall be specially appointed by the Court for the hearing of the Cause, the Defendant so summoned as aforesaid shall appear, either by himself, or his Agent, and the Plaintiff shall not appear, either by himself or his Agent, or appearing shall not Prosecute, or Prosecuting shall fail in the Proof of the Matter contained in his Declaration, that then upon due Proof that such Defendant was served with such Process, it shall and may be Lawful for the Judge or Judges of the said Court to dismiss the said Defendant, and decree and award him such Costs as in his or their Discretion shall seem

meet, and to award Execution against the said Plaintiff for Recovery and levying thereof, in the same manner as other Executions are hereby directed to be awarded against the Defendant, where the Plaintiff shall obtain Judgment in the Action.

Provided always, and it is hereby further Ordained and Declared by the Authority aforesaid, That no Execution shall be awarded against any Defendant until the next Court day after that on which Judgment shall be given in the Cause, to the Intent that the Party may have time to satisfy such Judgment by paying the Debt and Costs into the Hands of the Plaintiff or Plaintiffs, or his, her, or their Agent, or to the Clerk of the Court, who is hereby Authorized and required to receive the same for his, her, or their Use, unless it shall be made appear to the Judge or Judges pronouncing such Judgment that the Defendant or Defendants is or are preparing to leave the District, or otherwise to defeat the Plaintiff of the Effect of his, her, or their Judgment, in which case it shall and may be Lawful for the Judge or Judges pronouncing the said Judgment to award execution immediately; But in Default of such Payment as aforesaid, that then it shall and may be Lawful for the Judge or Judges giving such Judgment, on the Friday next ensuing the said Judgment, to award the Execution under his or their Hand and Seal, directed to the Head Bailiff of the Parish wherein the Defendant resides, or to some other discreet Person dwelling in or near the said Parish, whom the Judge or Judges shall think proper to name for that Purpose, and which he or they_are hereby authorized and impowered to do, commanding him to levy the Debt and Costs, together with his Fees for levying and returning the said Writ (which Fee shall be expressed in the Warrant of Execution) out of the Goods and Chattels belonging to such Defendant only, with an Express exception nevertheless therein contained to his, the Party's, Beasts of the Plough, Implements of Husbandry, Tools of his Trade, and one Bed and Bedding, unless the other Goods and Chattels of such Defendant or Defendants shall 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; and the said Bailiff or other Person, to whom such Writ of Execution shall be awarded as aforesaid, shall, before he proceeds to do any Thing therein, give Notice at the Church Door of the Parish wherein such Writ is intended to be executed, immediately after Divine Service, both Morning and Evening, on Two successive Sundays next after the coming of the said Writ, of the Day and Time appointed for the Sale of the Defendant's Goods, on which Day he shall proceed to sell the same to the highest Bidder, and for the most Money he can get, till he shall have raised sufficient to discharge the Whole of the said Writ of Execution, after which, if any Goods remain in Execution, the same shall be immediately restored to the Defendant; and in case the Defendant or Defendants against whom such Writ of Execution as aforesaid shall be awarded, shall not have Goods or Chattels sufficient to satisfy the said Writ of Execution, either in the whole or in Part, that then the Bailiff, or other Person as aforesaid authorized, shall enquire whether the said Defendant or Defendants hath or have any Lands in his or their Possession or Occupation, or in the Hands of any other Person in Trust for him or them, lying within the Parish wherein such Defendant or Defendants shall reside, or elsewhere within the Jurisdiction of the Court from whence such Writ of Execution shall be awarded; and if the Bailiff, or other Person so as aforesaid authorized, shall be fully informed and satisfied that such Defendant or Defendants hath or have any Lands as aforesaid, such Bailiff, or other Person so as aforesaid authorized, is hereby required to make Return thereof upon the Back of the Writ, specifying the extent and Quality of the same, and particularly if any Part thereof be Land usually sowed with Corn, or Meadow Land reserved for Hay, and upon such Return it shall and may be Lawful for the Judge or Judges of the Court from whence such Writ issued, to issue another Writ to the Bailiff of the Parish in which such Lands lie, or to some other discreet Person, residing in or near the same, commanding him to enter upon

such Arable or Meadow Land belonging to such Defendant or Defendants, at the proper Season, immediately after the reaping or mowing the same, and before any Part of the Produce thereof shall be removed and carried off, and of such Produce, whether of Corn or Hay, to set apart so much as in his Discretion he shall think sufficient to discharge the whole of the Writ so to him directed, and the same to sell upon the Land for the most Money that he can get, leaving the overplus, if any there be, upon the Land, for the use of the Defendant or Defendants.

And it is further Ordained and Declared by the Authority aforesaid, that if any Defendant or Defendants, or any Person or Persons by his or their Direction, after Notice to him or them of the coming of such Bailiff or other Person as aforesaid upon the Land (which Notice he is hereby required to give) shall make any Resistance, or prevent his coming upon the Land to execute the Writ, or otherwise disturb him in the execution of it, or shall remove or carry away all or any of the parcels of Corn or Hay, so as aforesaid set off, without having first satisfied the Whole of the said Writ of Execution, he or they so offending shall pay and forfeit, over and above the Sum so commanded to be levied, the Sum of Ten Pounds Currency of this Province, to be recovered in a Summary way, before one of the Judges of the Court issuing the said Writ of Execution, by the Person against whom such Offence shall have been committed, or any other Person who shall sue for the same.

Provided also, and it is hereby further Ordained and Declared, by the Authority aforesaid, That it shall and may be Lawful for any Judge or Judges issuing any Writ of Execution in Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid, upon due Proof before him or them made of the distressed Circumstances of the Defendant or Defendants in the Action to indorse upon the same his or their Order to the Bailiff, or other Person as aforesaid, commanding him to levy and raise the same by Installments, in such Proportions, and at such Days and Times as to him or them shall seem meet.

Provided nevertheless, That the whole of the Time so allowed, and given, shall not exceed the Space of Three months from the day of the Date of issuing such Writ of Execution; and provided also, that if it shall appear, upon due Proof thereof made before such Judge or Judges issuing such Execution as aforesaid, that the Defendant or Defendants hath, or have, at any Time after the Service of the Declaration and Writ of Summons as aforesaid, conveyed away or secreted all or any Part of his or their Goods, or Effects, in order to defeat the Plaintiff or Plaintiffs of his, her, or their Demand, that then and in such Case it shall and may be lawful to and for the said Judge or Judges immediately to award a Writ of Execution against the Body or Bodies of the said Defendant or Defendants, directed to the Bailiff or other Person as aforesaid, commanding him to arrest the said Defendant or Defendants, and him or them to convey to the Common Gaol of the District, there to remain till such Debt and Costs be fully satisfied, or other Order be made by the said Court for his or their Deliverance.

And whereas it may be of still further Utility and Convenience, and the means of extending the Benefit of these Regulations more generally throughout the Province, to constitute and appoint other Jurisdictions, by which Disputes of a still inferior Nature may be terminated, as well in the Towns of Quebec and Montreal, as in other parts of the Province remote from the Courts of Justice; It is further Ordained and Declared by the Authority aforesaid, That it shall and may be lawful to and for any Person or Persons as well within the Towns of Quebec and Montreal, as in other remote Parts of the Province, being thereto specially appointed by Commission under the Hand and Seal of the Governor, or Commander in Chief for the Time being, to hear and determine, and also to award Execution in all Causes where the matter in Question shall not exceed the Sum of Three Pounds, Current money of this Province, so as the Title of Lands be not drawn in Question in any such Proceedings, in as full and ample manner as any Judge or Judges of either of the Courts of Common

Pleas are hereby authorized and impowered to do in Matters where the Cause of Action shall not exceed the Sum of Twelve Pounds as aforesaid, any Thing to the Contrary hereof in this Ordinance notwithstanding; and the Person or Persons so as aforesaid appointed by Commission, as well in the Towns of Quebec and Montreal, as elsewhere within the Province, are hereby authorized and commanded, in the Execution of the Powers to them entrusted of hearing, determining, and awarding as aforesaid, to keep and observe all the Rules, and Regulations herein prescribed, limited, and directed, to the Judge or Judges of the Courts of Common Pleas, in the Exercise of their Jurisdiction, in matters where the Cause of Action shall not exceed the Sum of Twelve Pounds, and to conform to the same, both in their Judgments and Process, as fully and perfectly as if the same were herein particularly set forth at large and enjoined; and all Bailiffs of Parishes, or other Persons to whom any Writs of Summons, Warrants of Execution, or any other Process whatsoever, in matters where the Cause of Action shall not exceed the Sum of Three Pounds as aforesaid, shall be directed by any Person or Persons so appointed, as aforesaid, are hereby authorized and required to pay due Obedience to the same, and cause the same to be executed, and Returns thereof to be made to the Person or Persons so appointed, issuing the same as they would do or make to any Judge or Judges, of the Courts of Common Pleas, if such Process had issued from him or them; provided that Such Person or Persons as shall be appointed for this purpose within the Towns of Quebec and Montreal shall not sit or hold any Court for the hearing and determining Matters within their Jurisdiction on any Friday, but on some other Day in every Week, according to their Discretion other than Friday, or in such Vacation as aforesaid.

And whereas great and manifold Inconveniences and Losses have arisen to the Proprietors of Real Estates in this Province, by having their Houses and Lands taken in Execution and exposed to sale for the Payment of small Debts, and also from the hasty and informal method of setting the same to sale, even in cases where the extent of the Judgment will admit of no other satisfaction;

It is further Ordained and Declared by the Authority aforesaid, That from and after the Day of the Date of the Publication of this Ordinance, no Process whatsoever shall be awarded for the sale of any House or Houses, Land or Lands, Tenement or Tenements, upon any Judgment or Judgments, where the Original Cause of Action shall not exceed the Sum of Twelve Pounds Current Money of this Province; and that from and after the Day of the Date of the Publication aforesaid, no Houses, Lands, or Tenements, taken in Execution upon any Judgment or Judgments obtained in His Majesty's Supreme Court of Judicature for this Province, or upon any Judgment or Judgments obtained out of the Courts of Common Pleas in Quebec or Montreal, shall be extended or sold by the Provost Marshall, or any Person whatsoever, unless the Personal Property of the Defendant or Defendants in the Action shall be found insufficient.

And it is further Ordained and Declared by the Authority aforesaid, That upon the issuing of any Writ of Execution for the sale of any Houses or Lands, or so soon after as may be, the Provost Marshal of the District in which such Houses or Lands shall lie or be shall cause the same to be advertized in the Quebec Gazette, both in English and French, and therein set forth, as near as may be, the Quantity and Condition of such Houses and Lands, together with the Terms and the Day of Sale, which Day of sale shall not be till Six Months after such Publication, and at the same Time, or so soon after as conveniently may be, he shall also cause a true Copy of the said Advertisement, both in English and French to be sent to the Head Bailiff of the Parish where such Houses or Lands shall lie or be, who is hereby ordered and required to fix the same upon the Door of such Parish Church, and to re-place the same, so often as it shall be removed, defaced, or rendered illegible by Time or Accident, and also to publish and declare the Contents thereof every Sunday at the Door of the said Church immediately after Divince Service, both in the Morn

ing and Afternoon, that the same may be fully known and understood by the Inhabitants thereof, for which the said Bailiff shall receive, out of the Produce arising from the Sale the Sum of One Spanish Dollar, to be paid by the Provost Marshal and allowed in his Accounts.

Provided always, and it is hereby, and by the Authority aforesaid, further Ordained and Declared, That from and after the Day of the Date of the Publication aforesaid, all Houses and Lands against which any Writ or Writs of Execution shall be awarded for the sale of the same, shall be taken to be, and they are hereby and by the Authority aforesaid, declared to be obliged and bound in Law to pay and satisfy all and every Judgment or Judgments, which shall and may be obtained against the Owner and Proprietors thereof, from the Day on which such Judgment or Judgments shall be pronounced or given; and that no Mortgage, Sale, or Assignment, or any Deed of Conveyance, or any Disposition without Deed whatsoever, howsoever, or to whomsoever, made after the Day on which such Judgment or Judgments shall be pronounced or given as aforesaid, shall defeat, avoid, suspend, or delay the Force and Operation of such Judgment or Judgments; but all and every such Mortgage, Sale, Assignment, Deed, and Disposition, shall be taken to be, and all and every of them are and is hereby declared to be fraudulent, as against the said Judgment, Creditor or Creditors, and to have no Validity, Power, Operation, or Effect whatsoever, to the Prejudice of such Judgment Creditor or Creditors.

And lastly, It is further Ordained and Declared by the Authority aforesaid; That all Judges and other Persons authorized to administer Justice, issuing any Writ of Execution, as well where the Cause of Action shall exceed the Sum of Twelve Pounds as aforesaid, as where it falls short of, or is equal to that Sum, shall and they are hereby authorized and required to mark upon such Writ of Execution the Day on which Judgment was given in the Cause, and if Two or more Writs of Execution shall be issued upon Judgment given the same day, against the same Defendant or Defendants, and so marked upon the Writs, such Execution shall have the same Privilege, and be satisfied in the same Proportions, and the Provost Marshal, Bailiff, 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 or Defendants Real and Personal Estate, where the Said Writs shall be awarded against both, in case the same should not be sufficient to satisfy the whole of the said Judgments, to pay over and divide the Neat 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. (Signed) GUY CARLETON.

1 February, 1770.

XXII

CASE OF THE BRITISH MERCHANTS TRADING TO QUEBEC, 17741

[Trans. Shortt and Doughty.]

The Case of the British Merchants trading to Quebeck, and others of his Majesty's natural-born Subjects, who have been induced to venture their Property in the said Province on the Faith of his Majesty's Proclamation, and other Promises solemnly given.

The king's most excellent majesty was graciously pleased, by his royal proclamation of the seventh of October, one thousand seven hundred and sixty-three, passed under the great seal of Great-Britain to invite his loving subjects, as well of his kingdoms of Great-Britain and Ireland, as

1 This document has been selected out a number, as it provides a good summary of the case for the minority in Canada.

2 See No. IV.

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