to that under

warehousing of Spirits, on Spirits lawfully manufactured within July, 1856, this Province, there shall be payable on all such Spirits manu- in addition factured upon or after the fifth day of July next, or 12 V. c. 14. which having been so manufactured before that day, and warehoused under the said Act, shall, upon or after the same be taken out of warehouse for consumption, a further duty of one half penny currency per gallon, wine measure, so that the total duty payable on such Spirits shall be one penny and one half penny currency per gallon.

II. This Act shall be construed as one Act with the Act last Interpretation above cited, and with the Act thereby amended, passed in the clause. ninth year of Her Majesty's Reign, and intituled, An Act to 9 V. c. 2. repeal certain Acts therein mentioned, and to impose a duty on Distillers and the Spirituous Liquors made by them, and to provide for the collection of such duties; and all the provisions of the said Acts not inconsistent with this Act, shall apply to the duty hereby imposed, and all words and expressions herein used shall have the same meaning as in the said Acts; and the word "manufactured," in this Act, shall be equivalent to the words "distilled, manufactured or made," in the said Acts.

CAP. XLIII.

An Act to amend, repeal and consolidate the provisions of certain Acts therein mentioned, and to simplify and expedite the proceedings in the Courts of Queen's Bench and Common Pleas in Upper Canada.*

W

[Assented to 19th June, 1856.]

HEREAS it is expedient to simplify and expedite the Preamble. proceedings in the Courts of Queen's Bench and of Common Pleas for Upper Canada: Her Majesty, by and with

the advice and consent of the Legislative Council and Assembly of Canada, enacts, as follows:

I. The provisions of this Act shall come into operation Commenceon the twenty-first day of August one thousand eight hundred ment of this and fifty-six.

Act.

And with respect to the sealing and issuing of Writs and to Sealing and the offices of the Courts of Queen's Bench and Common Pleas issuing Writs, in the different Counties or Unions of Counties; Be it enacted as follows:

II. There shall be an officer appointed by the Governor Clerk of the of this Province, who shall be called the Clerk of the Process. Process to be III. appointed.

* NOTE.-The Notes in Brackets indicate the sources from which the provisions of the clauses opposite to which they stand, are derived. "1852," stands for the English Common Law Procedure Act of 1852, (15, 16 V. c. 76,) and "1854," for that of 1854, (17, 18 V. c. 125.) The Provincial Acts are referred to by Reign and chapter in the usual manner. Where there is no Bracketed Note, the provisions of the clause are original. The clauses from the English Acts are taken with as little change as was consistent with their adaptation to U. C. Law and Institutions.

To be an Officer of both Courts.

III. The Clerk of the Process shall be deemed an officer of both of the said Superior Courts of Common Law, and shall keep his Office in Osgoode Hall, and shall have a reasonable allowance for printing, procuring and transmitting blank forms of all Writs and Process, and for necessary books and To be subject stationery, and shall be subject to such rules for his guidance, to rules, to be as shall be, from time to time, made according to and under the powers for making rules hereinafter set forth.

made.

To seal the

both Courts.

And supply
Clerks and
Deputy
Clerks.

To issue

IV. The Clerk of the Process shall have a seal for sealing writs, &c., of Writs in each of the said Courts, to be approved by the Chief Justice of each Court respectively, and he shall seal therewith and sign all Writs and Process whatsoever which are to be issued from such Courts respectively; he shall keep each Deputy Clerk of the Crown and Pleas supplied with all Writs and Process so signed and sealed in blank to be by them filled up and issued; and he shall in like manner keep the Clerks of the Crown and Pleas supplied with all Writs and Process other than those which he is required to issue; and the Clerk writs, &c., to of the Process shall issue to the parties or their Attorneys all Writs of Summons and capias and alias and pluries Writs of Summons and Capias, and Writs of capias in actions already commenced and concurrent Writs, and shall renew such Writs as hereinafter authorized, which shall be required to be issued Writs to issue from the principal office at Toronto; And it shall be his duty alternately, and the duty of each Deputy Clerk of the Crown, to issue Writs from each for the commencement of actions alternately one from each Court and not otherwise, provided that this shall not be understood in any way to affect the issue of concurrent Writs.

parties and their Attor

neys.

Court.

To make quar terly returns to Inspector General.

Clerks and

V. The Clerk of the Process shall make quarterly returns, verified by his affidavits, to the Inspector General, of all Writs and Process issued by him in suits brought at Toronto or supplied by him in order to be issued, to the Clerks or Deputy Clerks of the Crown; and such Clerks or Deputy Clerks shall Deputy Clerks account for and pay over all fees receivable by them on such to account as Writs and Process, as they are now bound by law to do in at present. Clerk of Pro- respect to other fees received by them; And the Clerk of the Process shall receive the fees on Writs and Process issued by him as aforesaid at Toronto, and shall in like manner, account for and pay over such fees to form part of the Consolidated Revenue Fund of the Province.

cess to pay

over fees re

ceived by him.

Proper Office

writs in tran

VI. In cases in which the cause of action shall be transitory, for taking out the Plaintiff may sue out the Writ for the commencement of sitory actions. the action from the office of the Clerk of the Crown and Pleas of either of the said Courts, or from the office of any of the Deputy Clerks of the Crown and Pleas.

When the

VII. When the venue is local, the Writ for the commencevenue is local. ment of the action must be sued out from the office within the proper County.

VIII. The venue in any action may be changed according Provision to the practice now in force, but notwithstanding a change of if the venue the venue, the proceedings shall continue to be carried on in be changed. the office from which the first process in the action was sued

out.

whence writ

IX. All proceedings to final judgment shall be carried on in Proceedings the office from which the first process in the action was sued to be carried out, and the service of all papers and proceedings subsequent on in office to the Writ, shall be made upon the Defendant or his Attorney, issues, &c., according to the practice now in force, unless special provision service of is otherwise made in this Act, and if the Attorney of either papers, &c. party do not reside or have not a duly authorized agent residing in the County wherein such action was commenced, then service may be made upon the Attorney wherever he resides, or upon his duly authorized agent in Toronto, or if such Attorney have no duly authorized agent there, then service may be made by leaving a copy of the papers for him in the office where the action was commenced, marked on the outside as copies left for such Attorney.

X. Final judgment may be entered upon a cognovit actionem As to Judgor Warrant of Attorney to confess judgment, which shall have ments on been given or executed, in the first instance and before the cognovits. suing out of any process, in any of the said offices or at the option of the Plaintiff, unless some particular office in which the judgment is to be entered be expressly stated in such cognovit or warrant.

XI. All Writs of Execution may issue from the office wherein writs of the judgment is entered, or after the transmission of the roll to execution. the principal office, such Writs may, at the option of the party entitled thereto, be issued out of such principal office.

XII. Either party may as of right, upon giving two days' Revision of notice to the opposite party, have the taxation of costs made taxation of by any Deputy Clerk of the Crown and Pleas, revised by the costs. principal Clerk of the Court wherein the proceedings were had; and it shall be lawful for such Court or a Judge, by rule Costs of Revior summons, to call upon the Deputy Clerk who taxed any sion may be Bill, to shew cause why he should not pay the costs of revising charged to his taxation and of the application, if in the opinion of the tain cases. Court or Judge, on the affidavits and hearing the parties, such Deputy Clerk has been guilty of gross negligence, or of wilfully taxing fees or charges for services or disbursements larger or other than those sanctioned by the Rules and Practice of the Court.

Deputy in cer

XIII. Each Deputy Clerk of the Crown and Pleas shall, if Deputy proper accommodation be afforded him, keep his office in the Clerks to keep their Court House of his County, and until he can obtain such offices in the accommodation he shall keep his office in some convenient Court House

place

if possible : and if not, at some conve

nient place in the same town.

Hours of attendance, &c.

Rules to re

may be is

sued by Deputy Clerks.

place in the County Town; and every Deputy Clerk's office shall (except between the first day of July and the twenty-first day of August) be kept open from ten o'clock in the morning until three o'clock in the afternoon, Sundays, Christmas Day, Good Friday, Easter Monday, the birthday of the Sovereign, and any day appointed by Royal proclamation for a general fast or thanksgiving, excepted; and between the first day of July and the twenty-first day of August, such offices shall be kept open from nine in the morning until noon.

XIV. Every Deputy Clerk of the Crown and Pleas may sign turn process, and issue rules on any Sheriff or Coroner to return Writs and Process issued out of the office of such Deputy and directed to such Sheriff or Coroner; and it shall be the duty of each Sheriff or Coroner to return such Writs to the office from which such rule issued, in case he shall be served with any such rule.

Preserving evidence of

And whereas many titles to land depend upon Sheriff's sales upon executions, and it is therefore important to provide Sheriff's sales. for the preservation of evidence of the judgments upon which such executions issued, and also for the more speedy registration of judgments; Be it enacted as follows:

Deputy

books for mi-
r.uting all
Judgments,
&c.

Judgments to be also docketed at Toronto.

If the original

XV. Every Deputy Clerk of the Crown and Pleas shall Clerks to keep keep a regular book, in which shall be minuted and docketed all Judgments entered by such Deputy Clerk; and such minute shall contain the name of every Plaintiff and Defendant, the date of the commencement of the action, the date of the entry of such judgment, the form of action, the amount of debt or damages recovered, the amount of costs taxed, and whether such judgment was entered upon or by verdict, default, confession, non pros, non-suit, discontinuance, or how otherwise; and within three months after the entry of each judgment, the Deputy Clerk shall transmit to the principal Clerk of the proper Court in Toronto, every such judgment-roll and all papers of or belonging thereto, and such judgment shall be also docketed in the principal office, and in case the original judgment-roll be lost or destroyed, so that no exemplification or examined copy thereof can be procured, a copy of the entry in either of such docket books, certified by the Clerk or Deputy Clerk having such book in his custody, shall be evidence of all matters therein set forth and expressed and when any such Clerks may Deputy shall enter up any Judgment in either of the said give certifi cates of Judg- Courts, he may give to the party on whose behalf it is entered, ments entered or to his legal representative, a certificate signed by him, of by them, such Judgment, containing the like particulars as are required which certifiin certificates of Judgments given by the Clerks of the Crown and Pleas, and such certificate may be registered in the Registry Office of any County in Upper Canada, and the same certificate and the registration thereof, shall have the like force and effect in binding or operating as a charge upon lands, tenements and hereditaments situated within such County, as

roll be lost, copies may be used, &c.

Deputy

cates may be registered in the proper County and bind lands.

if the certificate had been granted at the principal office at Toronto.

And with respect to the Writs for the commencement of per- Writs for sonal actions in the said Courts, against Defendants, whether commencement of personal in or out of the jurisdiction of the Courts; Be it enacted as actions. follows:

sonal actions

XVI. All personal actions brought in the said Courts where Mode of comthe Defendant is residing or supposed to reside within the mencing perjurisdiction thereof, except in cases where it is intended to where Defeuhold the Defendant to special bail, shall be commenced by dant resides Writ of Summons according to the form contained in the within the juSchedule (A) to this Act annexed, marked No. 1, and in every (1852, s. 2.) such Writ and copy thereof, the place and county of the residence or supposed residence of the party Defendant, or wherein the Defendant shall be or shall be supposed to be, shall be mentioned.

risdiction.

of action need

XVII. It shall not be necessary to mention any form or cause Form or cause of action in any Writ of Summons or in any notice of Writ of Summons issued under the authority of this Act.

not be mentioned in writ.

(1852, s. 3.)

XVIII. Every Writ of Summons shall contain the names of Names of Deall the Defendants, and shall not contain the name or names of any Defendant or Defendants in more actions than one.

fendants, must

be.

(1852, s. 4.)

XIX. Every Writ of Summons or Capias issued under the Date of Writ authority of this Act, shall bear date on the day on which the same shall be issued, and shall be tested in the name of the Teste. Chief Justice of the Court fro.n which the same shall issue, or (1852, s. 5.) in case of a vacancy of such office, then in the name of the

Senior Puisne Judge of the said Court.

marked on

XX. The Clerk or Deputy Clerk of the Crown and Pleas Office whence who shall issue any Writ, shall mark in the margin a memo- issued to be randum stating from what office and in what County such writ. Writ was issued, and shall subscribe his name to such memorandum.

XXI. Every Writ of Summons or of Capias shall be indorsed Name of Atwith the name and place of abode of the Attorney actually torney or per son suing out suing out the same, and when the Attorney actually suing any writ to apWrit, shall sue out the same as agent for any other Attorney, pear on it. the name and place of abode of such other Attorney shall also be indorsed upon the said Writ; and in case no Attorney shall Further partibe employed to issue the Writ, then it shall be indorsed with culars if a memorandum expressing that the same has been sued out by the Plaintiff in person, mentioning the City, Town, incor- (1852, s. 6.) porated or other Village or Township within which such Plaintiff resides.

Plaintiff sue