6 Edw. VII., c. 37. (11) "Pleading" shall include any petition or summons, and also shall include the statements in writing of the claim Interpretation or demand of any plaintiff, and of the defence of any defend- of terms—Con. ant thereto, and of the reply of the plaintiff to any counterclaim of a defendant. (12) "Judgment" shall include decree. (13) "Order" shall include rule. (14) "Oath" shall include solemn affirmation and statutory declaration. (15) "Existing" shall mean existing at the time appointed for the commencement of this Act. (16) Proper Officer" shall, unless and until any Rule to the contrary is made, mean an officer to be ascertained as follows: (a) Where any duty to be discharged under this Act, or under Rules of Court, is a duty which has been dis- (b) Where any new duty is to be discharged, the proper (17) "Commencement of this Act" shall mean the period at which this Act shall come into force. CONSTITUTION OF COURT. existing new Court. 3. The Supreme Court, Circuit Courts, all Courts of Abolition of Oyer and Terminer and General Gaol Delivery, and the Su- Courts. preme Court in Equity, are hereby abolished, and there is hereby created one Supreme Court of Judicature for the Creation of Province, hereinafter called the Court, and to consist of two divisions The Court of Appeal and The Trial Division. The Court shall be a Court of Record of original jurisdiction, and shall, subject to the provisions of this Act and Rules of Court, possess all such powers and authority as by the law of Powers of England are incident to a Superior Court of Civil and Criminal Jurisdiction, and shall continue to have, use and exercise the jurisdiction, rights, powers and authority which at the new Court. c. 37. 6 Edw, VII, commencement of this Act were vested in, or capable of being exercised by the Supreme Court, either on the law, equity or exchequer side thereof, or otherwise howsoever. Qualification of Judges. Precedence of other Judges. 4. The Lieutenant-Governor in Council may, from time to time, determine and declare the Seal to be used by the said Court by which its proceedings shall be certified and authenticated, and until another Seal for the said Court is established the Seal heretofore in use for the Supreme Court may be used for all necessary purposes. 5. (1) The Court shall consist of a Chief Justice and five other Judges. The Chief Justice and two other Judges to be appointed in the manner hereinafter provided shall form The Court of Appeal," and the three remaining Judges, to be in like manner appointed, shall form "The Trial Division." (2) The Chief Justice and the other Judges of the Court and their successors shall be appointed by the authority mentioned in The British North America Act. The title of the Chief Justice shall be "Chief Justice of the Supreme Court of Judicature," and the title of each of the other Judges shall be Judge of the Supreme Court of Judicature, Court of Appeal," or "Judge of the Supreme Court of Judicature, Trial Division," as the case may be. 66 (3) The persons to be appointed Judges of the Court shall be Barristers-at-Law of at least ten years' standing at the Bar of New Brunswick. (4) The Chief Justice of the Court shall have rank and precedence over all other Judges of the Court. Precedence of (5) The other Judges of the Court shall have rank and precedence among themselves according to seniority of appointment to their respective offices. Judges to be (6) The Judges of the said Court shall ex officio be Justices Justices of the of the Peace and Coroners for every County in the Province. ex officio Peace, etc. Oath of Judges. (7) The oath to be taken by the Judges, to be hereafter appointed, shall be the following: "I do solemnly and sincerely promise and swear, that I will duly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as ; So help me God.” 1 c. 37. The oath shall be administered to the Chief Justice and the 6 Edw. VII, other Judges by the Lieutenant-Governor, or such person as is appointed by the Governor-General to administer oaths of office. Judges. (8) The Judges of the Court shall have their residence as Residence of follows, namely: Three in the City of Saint John, one in the City of Fredericton, one in one of the Counties of Gloucester, Northumberland or Restigouche, and one in such place or county as may be directed from time to time by Order in Council of either the Lieutenant-Governor or the GovernorGeneral. For the purposes of this sub-section and of enabling the provisions hereof to be carried out, it shall be lawful for the Governor-General or Lieutenant-Governor by Order in Council, or otherwise, from time to time to direct that three of the Judges of the Court shall reside in the City of Saint John; that one of the said Judges shall reside in the City of Fredericton; and that one of the said Judges shall reside in either the County of Gloucester, Northumberland or Restigouche; provided that nothing in this sub-section contained. shall be held to apply to, or in any manner affect, the Judges of the existing Supreme Court, who may be appointed as Judges of the Court hereby created. heretofore Judges con Judges of new 6. Whenever by any law, statute or custom any jurisdic- Jurisdiction tion, duty, power or authority, whether incident to the admin- vested in istration of justice or not, shall have been conferred or imposed tinned in upon the Judges of the Supreme Court, or upon any one of Court. them, or upon the Judge in Equity, such jurisdiction, duty, power and authority shall, unless special provision be made to the contrary, be deemed to be conferred and imposed upon the Judges of the Court hereby created, and the same shall be exercised by them in as full and ample a manner as they heretofore have been by the said first named Judges of the Supreme Court, Judge in Equity, or any of them. COURT OF APPEAL. Court of Ap 7-(1) The Court of Appeal shall be always open for the sittings of purposes mentioned in this and the section next following; peal. but it shall hold during each year in the City of Fredericton five sessions en banc to be presided over by the three Judges of the said Court for the purpose of hearing and determining all motions and applications of every kind and nature what c. 37. Jurisdiction of Court of Appeal. 6 Edw. VII., soever that heretofore have been or could have been heard and determined by the Supreme Court sitting en banc, or that are proper to be heard and determined by a Superior Court of Record en banc. The Court of Appeal shall have all the jurisdiction and powers possessed by the Supreme Court en banc at the commencement of this Act, with appellate jurisdiction in civil and criminal causes and matters, and shall have jurisdiction and power to hear and determine motions and appeals respecting any judgment, order or decision of any Judge or Judges of the Trial Division, and of any Judge of the Court of Appeal, provided that the same shall not have been made as the judgment or decision of the Court of Appeal or en banc. All appeals and motions from judgments, orders and decisions of any Court that heretofore lay or might have been made to the Supreme Court, shall hereafter be to the said Court of Appeal. The said Sessions shall commence on the second tings of Court Tuesdays in the months of February, April, June, September and November, and shall continue for such time as is necessary to dispose of the business before the Court. Commencement of sit of Appeal. Hearing in peal to be be fore all Judges of the Court. Exception. Disability of judgment or (2) Every appeal, motion or application to the Court of Appeal shall, unless otherwise provided in this Act or Rules of Court, be heard before all the Judges of the Court for the time being sitting together; provided, that any two Judges shall constitute a quorum and may lawfully hold the Court in cases where the parties consent to be heard before a Court so composed, but subject to the same right, if any, of appeal as if the hearing and determination had been before the whole Court. It shall not be necessary for all the Judges who have heard the argument in any case to be present in order to constitute the Court for delivering judgment in such case; and where any Judge, who has heard the case, is not present at the time of judgment being delivered, his judgment may be announced or read by one of the other Judges of the Court, and it shall have the same effect as if he were present. (3) No Judge shall sit as a Judge on the hearing of an apappeal from peal from any judgment or order made by himself; and no order by him- Judge shall sit on the hearing of any motion for a new trial any cause or matter tried with a Jury before himself. self. Judge of Trial Division sit in (4) In any cause or matter in which a Judge of the Court ting in Court of Appeal is unable to sit or take part, in consequence of the provisions of the preceding sub-section, or from illness or any of Appeal. c. 37. other cause, or in case of a vacancy in the Court, the Chief 6 Edw. VII., heal Justice, or in case of his illness or absence, the senior Judge of the Court of Appeal, shall summon a Judge of, the Trial EQUITY BUSINESS. Assignment of in Equity. 8.—(1) All motions, petitions, causes and matters as have heretofore been heard in the Supreme Court in Equity, shall ness to Judge be heard and determined by one of the Judges of the Court of Appeal, to be agreed upon by the Judges of said Court, and herein called the Judge in Equity. In particular, but so as not to restrict the generality of the foregoing words, such Matters asJudge shall hear and determine all actions, motions and peti- Judge in tions respecting the following matters, namely: signed to Equity. s. 34]. (a) All causes and matters pending in equity at the Cf. J. A. 1873, commencement of this Act; (b) All causes and matters for any of the following pur poses: The administration of the estates of deceased persons; The dissolution of partnerships or the taking of partner- The redemption or foreclosure of mortgages; The raising of portions or other charges on land; The sale and distribution of the proceeds of property The execution of trusts, charitable or private; and the The rectification, or setting aside, or cancellation of deeds The specific performance of contracts between vendors The partition or sale of real estate; The wardship and adoption of infants and the care and sale of infants' estates; |