Proviso.

At what Division

Court any suit may be brought.

Plaintiff may not divide his claim, but may abandon excess.

Proviso: as to unsettled accounts.

Minors may sue for wages.

No person exempt by privilege.

Debts due by more than one person jointly, may be recovered from one, saving his recourse.

Proviso: as to cases against partnerships.

Judge to decide alone up to a certain amount.

In suits not exceeding £5, Judge may receive affidavits of parties without his jurisdiction.

Proviso.

deemed a good service of such summons, account or demand; Provided always, that personal service of such summons on the debtor shall be necessary in all cases where the amount or damages sued for exceed the sum of forty shillings.

XXV. And be it enacted, That all suits brought under this Act shall be tried at the Court holden for the Division wherein the Defendant, or where there shall be more than one Defendant, wherein any one of the Defendants shall dwell or carry on his business at the time of entering the account or demand, or at the Court holden for the Division within which the debt was contracted, or the tort or trespass committed, unless otherwise specially ordered by the Judge.

XXVI. And be it enacted, That it shall not be lawful for any Plaintiff to divide any cause of action into two or more suits, for the purpose of bringing the same within the jurisdiction of a Division Court, but any Plaintiff, having a cause of action above Twenty-five Pounds, in which a suit might be brought under this Act, if the same were not above that sum, whenever he shall claim or demand only the balance, or sum of Twenty-five Pounds, may, on proving his case, recover to that amount only: Provided always, that no unsettled account to a greater amount than Fifty Pounds shall be sued for in any Division Court; and the judgment of the Court upon such suit shall be in full discharge of all demands in respect of such cause of action, and the entry of judgment shall be made accordingly.

XXVII. And be it enacted, That it shall be lawful for any one under the age of twenty-one years to prosecute any suit in any Division Court under this Act, for any sum of money not exceeding Twenty-five Pounds which may be due to him or her for wages, in the same manner as if he or she were of full age.

XXVIII. And be it enacted, That no privilege of any description whatsoever shall be allowed to any person to exempt him from suing and being sued in the said Division Courts upon any cause of action within the jurisdiction of the said Courts.

XXIX. And be it enacted, That where any Plaintiff shall have any debt or demand recoverable under this Act, against two or more persons, partners in trade, or otherwise jointly answerable, but residing in different Divisions, or one or more of whom cannot be found, it shall be sufficient if any one or more of such persons be served with the process as herein before directed, and the judgment may be obtained, and execution issued against such person, notwithstanding others jointly liable may not have been served or sued, reserving always to the person against whom execution may issue, any right which he may have to demand contribution from any other person jointly liable with him: Provided always, that whenever judgment is obtained against any person, being partner of a firm, and the Judge shall certify that the demand proved was strictly a partnership transaction, the Bailiff may seize and sell the property of such firm, as well as that of the Defendant or Defendants, who has or have been served, to satisfy such judgment, together with all lawful costs and charges thereon.

XXX. And be it enacted, That the Judge of the County Court, or his Deputy, as aforesaid, shall be the sole Judge to determine all actions brought in the said Division Courts; in the summary manner authorized by this Act, and all matters and questions of fact relating thereto unless the amount claimed shall in cases of tort or trespass exceed Two Pounds Ten Shillings, in other cases where the same shall exceed Five Pounds and where either of the parties shall require a jury to be summoned as hereafter mentioned.

XXXI. And be it enacted, That in any suit brought in any Division Court for any debt or demand not exceeding the sum of Five Pounds, the Judge, in his discretion, may receive the affidavit of any party or witness in the said suit, resident without the jurisdiction of the Judge of such Court, as testimony in the cause, if such affidavit shall be made and sworn to before a Judge of a Division Court, or a Commissioner for taking affidavits in any of the Superior Courts in Upper Canada: Provided that the Judge, in his discretion, before he shall be required to pronounce judgment, may require any such witness, or any party in a cause, to answer any interrogatories that may be filed

in the said cause, which answers may in like manner be sworn to before any Judge or Commissioner.

XXXII. And be it enacted, That in all actions of tort or trespass, where the sum Jury allowed in cases of money sought to be recovered shall exceed Two Pounds Ten Shillings, and in over a certain amount. all other cases where such sum shall exceed Five Pounds, it shall be lawful for the plaintiff or defendant to require a Jury to be summoned to try the said action, and in any such case a Jury shall be summoned according to the provisions hereinafter contained to try such action: Provided always, that if the plaintiff require a Jury to be summoned, he shall give notice in writing to the Clerk of the Court at the time when given to the Clerk. he shall enter his account, demand or claim as aforesaid, and if the defendant shall require a Jury to be summoned, he shall give to the said Clerk, or leave at the office of the said Clerk, the like notice in writing within five days after the day of service of the summons on the said defendant.

XXXIII. And be it enacted, That every party plaintiff or defendant, requiring any jury to be summoned, shall, at the time of giving the notice hereby required, and before he shall be entitled to have such jury summoned, pay to the Clerk of the said Court such sum of money as is set down in the Schedule of Fees for the time being, for or towards the payment of the expenses of the said jury. XXXIV. And be it enacted, That the causes which are to be heard by the Judge alone, shall be set down for hearing in a separate list from the list of causes which are to be tried by a jury, which two lists shall be severally called "The Judge's List" and "The Jury List," and the causes shall be set down in such lists in the order in which they were entered in the first instance with the Clerk of the Division Court; and "The Jury List" shall be first disposed of, and then "The Judge's List ;" except when the Judge shall see sufficient cause for proceeding differently.

Proviso:
: notice to be

sum to be paid on

demanding a jury.

Judge's List" and "Jury List" to be

kept.

What Jurors shall serve for each

Division.

Collectors to furnish

Clerks with lists of

persons liable to serve.

XXXV. And be it enacted, That all male persons being subjects of Her Majesty by Who shall be Jurors birth or naturalization above the age of twenty-one years, and not above the age of at Division Courts. sixty years assessed upon the Collector's Roll and resident in the several divisions respectively, shall be jurors for the Division Courts in such Divisions, and the jurors to be summoned to serve at any Division Court shall be taken from the Collector's Rolls of the preceding year, for the Townships and places wholly or partly within the Division, and shall be summoned in rotation beginning with the first of such persons on such Roll; and if there be more than one such Township or place within the Division beginning with the Roll for that within which the Court is held, and then proceeding to that one of the other Rolls which shall contain the greatest number of such persons names, and so on until all the Rolls be gone through; after which, if necessary, they may be again gone through wholly or partly in the same order, and so on to toties quoties; and for the purposes of this section, it shall be the duty of the Collector for each place wholly or partly within any division, to furnish the Clerk of the Division Court thereof with correct lists of the names of all persons liable to serve as jurors at such Court in the order in which they stand upon the Rolls, and the Clerk of each Division Court shall cause not less than fifteen of the persons liable to serve as aforesaid to be summoned at each Session of the Court, (giving them at least three days notice,) to attend the Court at the time and place to be mentioned in the summons serving such notice personally, or leaving it with a grown-up person at the residence of the juror; Provided always, that either of the parties to any such cause shall be entitled to his lawful challenge against any of the said jury in like manner as he would in any other Court; and any juryman who, after being duly summoned for that purpose as aforesaid, shall wilfully neglect or refuse to attend the Court in obedience to such summons shall be liable to a fine not exceeding twenty shillings, to be set on him by the Judge, which fine shall be levied and collected with costs, as other fines are hereinafter directed to be levied and collected, and shall form part of the general fee fund; and such fine may be levied by the same process as any debt or judgment recovered in the said Court: Provided always, that service as juror at any Division Court shall not Proviso: such service exempt such juror from serving as juror in any of the Superior Courts of civil or not to exempt from 166*

criminal

Mode of summoning

Jurors.

Proviso: as to right

of challenge.

Penalty on Jurors summoned and not attending.

How enforced.

criminal jurisdiction or in any County Court, under any law now in force or to be passed during this present Session of Parliament respecting jurors.

XXXVI. And be it enacted, That each juror shall receive from the Clerk of the Division Court, out of the moneys to be deposited with him for that purpose, the sum of six pence, for every cause in which such Juror shall be sworn.

XXXVII. And be it enacted, That from time to time, as occasion shall require, five Jurors shall be empannelled and sworn to do justice between the parties whose cause they shall be required to try, according to the best of their skill and ability, and to give a true verdict according to the evidence, and each cause shall be decided by the unanimous verdict of any such Jury, and no other finding shall be received.

XXXVIII. And be it enacted, That whenever the Judge holding any Division Court shall be satisfied that a Jury sworn in any cause before him cannot agree upon their verdict after having been out a reasonable time, he may discharge them, and shall then adjourn the cause until the next Court and order the Clerk to summon a new Jury for the next sitting of the Court to be held in that Division, unless the parties shall have consented that the Judge may render judgment on the evidence already taken before him, in which case he is hereby authorized to give judgment accordingly.

XXXIX. And be it enacted, That every decision of the Judge, in any case heard before him, shall be openly pronounced in Court as soon as may be after the hearing thereof, save and except that in any case where the Judge may not be prepared to pronounce a decision instanter, he may postpone judgment and name a subsequent day and hour for the delivery thereof at the Clerk's Office in writing; and at such day and hour it shall be lawful for the Clerk to read the judgment to the parties or their agents if present, and if not, then to enter the said judgment in their absence, and such judgment shall be as effectual as if rendered in Court at the trial.

XL. And be it enacted, That every summons and writ of execution issued by a Clerk of any Division Court shall be entirely filled up, and shall have no blank either in the date or otherwise at the time of its delivery to a Bailiff or any other person, to be executed.

XLI. And be it enacted That on the day named in the summons, the Plaintiff shall appear in the Division Court in person, or by some person in his behalf, to answer; and on answer being made in Court, the Judge shall proceed in a summary way to try the cause and give judgment without further pleading or formal joinder of issue.

XLII. And be it enacted, That no evidence shall be given by the Plaintiff or Defendant on the trial of any such cause as aforesaid, of any cause of action, claim or sett-off, except such as shall be stated and contained in the demand, claim, account or sett-off, entered as hereinbefore directed.

XLIII. And be it enacted, That any defendant may avail himself of the law of sett-off and the Statute of Limitations, and of any other relief or discharge under any statute or law in Upper Canada; and if the Defendant's demand exceed that of the Plaintiff, the Court may non-suit the Plaintiff; or if the Defendant's demand, after remitting any portion of it he may please, do not exceed Twenty-five Pounds, the Court may give judgment for the Defendant for the balance found in his favour: Provided always, that no statutory defence shall be admitted, unless notice thereof in writing and a copy of such debt or demand by way of set-off, shall have been delivered to the Plaintiff, or left at his usual place of abode, if within the Division, or if living without the Division, to the Clerk of the said Court, at least six days before the trial or hearing: And provided also, that whenever any judgment shall be given in any case where a sett-off is set up, the judgment of the Court on such sett-off, shall be a full discharge, as well of the amount allowed to be sett-off as the amount by which such claim of the Defendant exceeded Twenty-five pounds, and such judgment shall be so entered accordingly.

XLIV. And be it enacted, That the Judge of the County Court shall have power from time to time to make general rules for regulating the practice and proceedings of the said Division Courts, and also to frame forms for every proceeding in the said Courts for which he shall think it necessary that a form be provided, and from time to time to alter

alter any such form, and also to alter all or any of the forms given in the Schedule of

this Act: Provided always, that such rules and forms so made, framed or altered, Proviso: rules to be shall not be brought into use until the same shall have been submitted to and approved approved. by the Chief Justice and Judges of the Court of Queen's Bench or Court of Common Pleas, for that part of this Province called Upper Canada, or any two of them: Provided Proviso: as to existing always, that all rules and forms already legally made, approved and in force shall, as far as applicable, remain in force, until it is otherwise ordered.

XLV. And be it enacted, That if on the day named in the summons the Defendant shall not appear as aforesaid, or sufficiently excuse his absence, or shall neglect to answer, the Judge, on proof of due service of the summons and copy of the Plaintiff's account, claim or demand, may proceed to the hearing or trial of the cause on the part of the Plaintiff only, and the order, verdict or judgment thereupon which shall be given, made or rendered after hearing the evidence to be adduced on the part of the Plaintiff, shall be final and absolute, and as valid as if both parties had attended; and in case of the personal service of the summons, and detailed particulars of the Plaintiff's claim, except in actions of tort or trespass, the Judge may, in his discretion, give judgment without further proof: Provided always, that the Judge may make any order for granting any time to the Plaintiff or Defendant to proceed in the prosecution or defence of the suit.

rules.

Proceedings if defen

dant shall make

default.

Proviso.

:

XLVI. And be it enacted, That it shall be lawful for the Defendant in any action Defendant may pay brought under the provisions of this Act, at any time not less than six days before the money into Court. day appointed for the trial thereof, to pay into Court such sum of money as he shall think a full satisfaction for the demand of the Plaintiff, together with the costs incurred by the Plaintiff up to the time of such payment; and notice of such payment shall be forthwith communicated by the clerk of the said Court to the Plaintiff by post, (on receiving the necessary postage,) or by sending the same to his usual place of abode or

plaintiff recover no greater sum.

I

7

business, and the said sum of money shall be paid to the Plaintiff, and all proceedings How the money shall in the said action shall be stayed, unless the Plaintiff shall, within three days after the be dealt with. receipt of notice of such payment, signify to the Clerk of the said Court his intention to proceed for the remainder of the demand claimed, and in such case the action shall proceed as if it had been brought originally for such remainder only: Provided always, Proviso: if the that if the Plaintiff shall recover no further sum in the action than such sum as shall have been paid into Court, under the provision hereinbefore contained, the Plaintiff shall pay to the Defendant all costs, charges and expenses incurred by him in the said action after such payment as aforesaid, and such costs, charges and expenses shall be settled by the Court, and shall be recovered by the Defendant by such ways and means as any sum ordered to be paid by the Court can be recovered.

XLVII. And be it enacted, That every person who in any examination, shall wilfully False swearing to be or corruptly give false evidence, or shall wilfully swear (or affirm, when by law perjury. affirmation is allowed,) falsely in any matter where an oath, affirmation, or affidavit in writing is required and allowed in this Act, shall be liable to the penalties of wilful and corrupt perjury.

Parties may obtain subpoenas for

witnesses.

By whom to be served,
Proof of service.

XLVIII. And be it enacted, That either of the parties to the suit may obtain from the Clerk of any Division Court a summons requiring the attendance of a witness resident within the County or served with the subpoena therein with or without a clause requiring the production of books, papers and writings in his possession or control; and in any such summons any number of names may be inserted, and service of a copy of any such summons by any literate person shall be as valid and effectual as if the same had been served by a Bailiff of the Court in which the suit is pending, and proof of the due service thereof, together with the tender of payment of expenses, may be received by the several Judges of the said Courts by written affidavits sworn before any Judge of a Division Court or before any person authorized by law to take affidavits in the Superior Courts in Upper Canada: and every person on whom any such copy of Penalty on witnesses summons shall have been served, either personally or at his or her usual place of abode, and to whom at the same time a tender of payment of his or her expenses shall have been

not attending ;

been made on such scale of allowance as has been heretofore or shall from time to time be settled by the Judge, and approved of by the Judges of the Court of Queen's Bench or Court of Common Pleas as aforesaid, and who shall refuse or neglect without sufficient cause to appear or to produce any books, papers or writings required by such summons to be produced, and also every person in Court called upon to give evidence, who shall refuse to be sworn or affirm where affirmation is by law allowed and give evidence, shall forfeit and pay such fine not exceeding two pounds, as the Judge shall set on him or her, and shall moreover be liable to imprisonment by verbal or written order of such Judge for any time not exceeding ten days; and such fine shall be levied and collected with costs in the same manner as fines imposed on Jurymen for non-attendance, and the whole or any part of such fine, in the discretion of the Judge, after deducting the costs shall be applicable towards indemnifying the party injured by such refusal or neglect, and the remainder thereof shall form part of the General Fee Fund before mentioned; Provided always, that either party may obtain from either of the Superior Courts of Common Law for Upper Canada, a subpoena requiring the attendance of a witness residing or served with such subpoena in any part of Upper Canada, at the Division Court, and at the time mentioned in such subpoena, which such witness shall obey, provided the allowance for his expenses shall, at the time of service, be tendered to him according to the scale settled in the said Superior Courts.

XLIX. And be it enacted, That the Clerk of each Division Court shall cause a note of all summonses, and of all orders, and of all judgments and executions and returns thereto, to be fairly entered from time to time in a book which shall be kept in his office; and the Clerk shall sign his name on every page of such book; and such entries in the said book so signed, or a copy thereof purporting to be signed and certified as a true copy by such Clerk, shall at all times be admitted in all Courts and places whatsoever as evidence of such entry or entries, and of the proceedings referred to by such entry or entries, without any further proof.

L. And be it enacted, That the Judge may make orders concerning the time or times, and the proportions in which any sum and costs recovered by judgment of the said Court shall be paid, and at the request of the party entitled to the same, may order such sums to be paid into the Court: Provided always, that in any such order for time, reference shall be had to the day on which the summons was served on the defendant, and issuing of execution shall not be postponed without the consent of the party entitled to the same for a longer period than fifty days from the service of the summons.

LI. And be it enacted, That if there be cross-judgments between the parties, execution shall be taken out by the party only who shall have obtained judgment for the larger sum, and for so much only as shall remain after deducting the smaller sum, and satisfaction for the remainder shall be entered as well as satisfaction on the judgment for the smaller sum; and if both sums shall be equal, satisfaction shall be entered upon both judgments. LII. And be it enacted, That in any suit brought in any Court for the recovery of any sum awarded by any judgment in a Division Court held under this Act, no costs shall be recoverable without the order of the Judge, on sufficient cause being shewn.

LIII. And be it enacted, That whenever the Judge of any Division Court shall make an order for the payment of money, it shall be lawful for the party in whose favor such order shall be made, in case of default or failure of payment thereof at the times and in the manner thereby directed, to sue out execution against the goods and chattels of the party against whom such order shall be made; and thereupon the Clerk of the Court, at the request of the party prosecuting such order for the payment of money, shall issue under the seal of the Court a precept in the nature of fieri facias to one of the Bailiffs of the Court, who by virtue of such precept shall levy by distress and sale of the goods and chattels of such party, being within the County within which the said Court was holden, such sum of money and costs (together with interest thereon from the date of the entry of the judgment) as shall be so ordered, and past due, and shall pay the same

over to the said Clerk.