SCHEDULE A. ABSENT DEFENDANTS. 1 63. That whenever a Defendant has left this Province, or is resident elsewhere, by reason whereof such Defendant cannot be served with the Process of Subpoena to appear and answer the Plaintiff's Bill, the Plaintiff shall be at liberty, on motion supported by Affidavit of the fact to the satisfaction of the Court, in the form or to the effect hereinafter set forth, to obtain an Order requiring the Defendant to cause his or her appearance to be entered with the Registrar, and notice thereof to be served on the Plaintiff's Solicitor, within two months from the date of such Order, if the Defendant reside in the Province of Lower Canada; within four months from the date of such Order, if the Defendant reside in any part of the United States of America; and within nine months from the date of such Order, if the Defendant reside in any part of the United Kingdom of Great Britain and Ireland, or elsewhere; and the Defendant shall accordingly appear and cause his or her answer to the Bill to be filed, and an office copy thereof to be served on the Plaintiff's Solicitor, at or before the expiration of the respective periods aforesaid, as the case may be, and in default thereof, the Bill shall be taken as confessed by the Defendant: Provided nevertheless, that the Plaintiff's Solicitor do, on obtaining such Order as aforesaid, either cause a copy thereof to be published in such newspapers as the Court may direct, such publication to be continued in such newspapers at least once in each week for eight weeks in succession, or in case the Defendant shall come to this Province, do cause a copy of such Order to be personally served on the Defendant, at least twenty days before the time prescribed above for appearing and putting in his or her answer; and in case where the place of residence of the Defendant is known to the Plaintiff, he shall, in addition to causing the publication of the Order in the newspapers in the manner hereinbefore directed, also cause a copy of such Order to be transmitted by post to the Defendant, addressed to him at his place of residence. That the Court shall be satisfied by affidavit or otherwise, that the aforesaid several provisions have been complied with on the part of the Plaintiff, and that no appearance has been entered by the Defendant with the Registrar, before an Order shall be entered taking the Bill as confessed by such Defendant in manner herein before provided. That the Affidavit above referred to shall be in the following form, or to the like effect, that is to say: In Chancery between, &c. A. B., of &c. maketh oath and saith, that a Writ of Subpoena to appear and answer to the above named suit, was issued out of, and under the Seal of this Honorable Court, directed to the abovenamed Defendant, C. D., (a copy whereof is hereunto annexed) and was delivered to this deponent to be served, but this deponent could not find the said C. D. to serve him therewith (and if the deponent can so state, he shall proceed to add,) that he, this deponent, well knows that the said Defendant did formerly reside at in this Province, but has since left the same, and now resides at if these facts are not within the deponent's knowledge, then the Affidavit must proceed thus), and he, this deponent, was informed by (here state the name of the informer and his connection with the absent Defendant, that the Court may judge how far the information given may be relied on,) that he knew the Defendant, C. D., and that he formerly resided at in this Province, but has since left the same, and in the Province of Lower Canada, or, at now resides at (but in the United States of America, (if the deponent can so depose upon the information given, or generally, if he be unable to state the particular place in the United States of America, (or, at in England, Scotland, or Ireland, (or elsewhere, as the case may be.) If the Defendant have never resided in this Province, the Affidavit must be varied accordingly. 66. That in order to remove doubts which have arisen upon the construction of the Order of the twenty-fifth of August, one thousand eight hundred and thirty-seven, where the same applies to proceedings on the Common Law side of the Court, his Honour doth order that the same course of proceedings shall be adopted on the Common Law side of the Court, with respect to Defendants out of the jurisdiction thereof, as by the said Order is prescribed with reference to proceedings on the Equity side, mutatis mutandis. 68. That in all cases within the Order of the twenty-fifth of August, one thousand eight hundred and thirty-seven, relative to Defendants out of the jurisdiction, after any state of facts shall have been carried into the Master's Office, pursuant to the reference directed by the Decree, the Warrant, on leaving such state of facts, henceforth shall be discontinued, and the Plaintiff shall be at liberty immediately to apply for and obtain a Warrant to proceed on the state of facts. 178. Whereas in the case of Defendants residing without the jurisdiction of this Court, but whose place of residence is known, and who may therefore be served personally with the Process of this Court to compel such Defendants to appear to and answer the Plaintiff's Bill, it is deemed advisable to allow Plaintiffs to proceed against such absent Defendants, by personal service of such Process in cases where the same can be effected, instead of according to the present mode of proceeding against absent Defendants, it is therefore ordered, that upon motion in open Court, founded upon Affidavit or Affidavits and such other documents of evidence, if required or proper, as may be applicable for the purpose of ascertaining the residence of any Defendant or Defendants residing without the jurisdiction of the Court, and the facts material to identify such Defendant or Defendants, and his or their place or places of residence, it shall be competent for the Court to order and direct, that service of a Subpana to appear and answer, upon such terms and in such manner, and at such times, as to the said Court shall seem reasonable (or in cases where the Court shall deem fit, upon the Receiver, Steward, Bailiff, Agent, or other person receiving or remitting rents of lands and premises, if any, in the suit mentioned, or otherwise acting on behalf of such Defendant or Defendants in relation to the matter or matters which are the subject of such suit, returnable at such time as the Court shall direct,) together with a copy of such Order and of the prayer of the Plaintiff's Bill, shall be deemed good service upon such Defendant or Defendants, such Order to direct also in what mode such service may be authenticated, in cases where such service may be effected without the jurisdiction of this Court; and in case such Defendant or Defendants shall, after such service, make default in appearance by the time limited by such Order and Process aforesaid, the Plaintiff shall be at liberty to enter an appearance for such Defendant or Defendants, upon filing with the Registrar an Affidavit of such service sworn as in such Order directed; and if the Defendant shall not answer the Plaintiff's Bill within the time limited by such Order, the Plaintiff shall be entitled to an Order to set down the cause for hearing, in order that the Bill may be taken pro confesso against such Defendant or Defendants, upon filing with the Registrar his Præcipe for that purpose; and thereupon a Decree may be made and enforced against such Defendant or Defendants accordingly, unless the Court on special circumstances disclosed by Affidavit, shall allow further time to such Defendant or Defendants to answer the Plaintiff's Bill: Provided nevertheless that the following notice, or such other notice as the Court may in any case direct, shall in such cases be endorsed on the said Writ of Subpoena, and signed by the Solicitor for the Plaintiff. ORDINARY NOTICE to be endorsed ad respondendum in Absent Defendant Cases: "You are served with this Process to the intent that you may, either in person or by your Solicitor, appear in Her Majesty's Court of Chancery at Toronto, by filing your appearance with the Registrar of the said Court within after the "service hereof upon you, exclusive of the day of such service, and that you may "answer a Bill of Complaint filed against you by 66 , a copy of the prayer " of which said Bill is served upon you herewith; and you will take notice, that unless you enter such appearance, an appearance will be entered for you by the Plaintiff at "the expiration of the said and unless you answer the said Bill at or after such appearance shall have been entered "before the expiration of "by you or for you, you will be considered as confessing the truth of the several "matters alleged in the said Bill of Complaint, and a Decree will thereupon be made "and enforced against you." Ordered that in case the Court shall think fit so to direct, it shall be competent for the Court to order that the Plaintiff be at liberty either to proceed against such absent Defendant by such personal service of Process, or by publication of Order by advertisement, according to the previous practice of the Court in that behalf; and in such case the Plaintiff shall be at liberty, for the purposes of such advertisement, to take the usual Order in Absent Defendant Cases under the previous practice as aforesaid, without any further application to the Court in respect thereof. 75. That in all cases where the Plaintiff shall personally serve the Defendant with the Writ of Subpoena to appear and answer the Bill, and the Defendant shall make default in appearance at the time limited by the practice of the Court, the Plaintiff shall be at liberty to enter an appearance for such Defendant; and if the Defendant shall not answer the Bill within the time limited by the Court in that behalf, the Bill may be ordered to be taken pro confesso, and a Decree made and enforced against him accordingly, unless the Court on special circumstances disclosed by Affidavit, shall allow further time to the Defendant to answer, in which case no such Order shall be entered until the expiration of such further time allowed; Provided nevertheless, that the following statement shall be added to the notice at present endorsed on the said Writ of Subpœua, and signed by the Solicitor for the Plaintiff, that is to say: And you will take notice that unless such appearance as before mentioned shall be entered, an appearance will be entered for you; and if you do not answer, the said complainant's Bill at or before the expiration of twenty-eight days, from and exclusive of the day on which such appearance shall be entered for you, you will be considered as confessing the truth of the matters alleged in the said Bill of Complaint, and a Decree will be made and enforced against you. CAP. CXIV. Preamble. An Act to alter and settle the mode of proceeding in the action of Ejectment. [ 30th August, 1851.] W HEREAS it is expedient to abolish all fictions of law in actions of Ejectment, and to place such actions, as nearly as may be, on the same footing as other actions between parties; and it is also expedient to prevent the multiplication of suits for the purpose of recovering costs or mesne profits where parties recover the possession of land in such actions, and to enable such parties to recover such mesne profits and costs, in any suit brought for the recovery of lands: Be it therefore enacted, by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of the United Kingdom of Great Britain and Ireland, and intituled, An Act to re-unite the Provinces of Upper and Lower Canada, and for the Government Mode of commencing of Canada, and it is hereby enacted by the authority of the same, That all actions of actions of ejectment. Ejectment shall be commenced by Writ of Summons, in the same manner as other actions, in which the names of all the persons claiming the property shall appear as Plaintiffs, and the persons in actual possession, or in case of a vacant possession, the persons last in actual possession, shall appear as Defendants, and such Writ may be in the following form, and shall bear teste of the day on which it is issued, and be in force for four calendar months thereafter: County County of to wit: [SEAL] Victoria, by the Grace of God, of the United Kingdom of To A. B. of We command you that you do appear before us in our Court of Queen's Bench (or Common Pleas, as the case may be) within sixteen days after the service hereof, to answer to C. D., of , in the County of Yeoman, in an action of Ejectment, in which action the said C. D. claims to recover certain premises, of which it is said you are in possession, which premises consist of (describe the premises particularly), and you are hereby required to enter your appearance in the office of the (Clerk of the Crown, or Deputy Clerk of the Crown, as the case may be), in and for the County of at in the said County, at the suit of the said C. D., for your defence to the whole of the said property, or such part thereof as you may be advised, or in default of such appearance you will be turned out of possession of the said property. Herein fail not. Witness, &c. (to be tested in the usual manner.) II. And be it enacted, That the said Writ of Summons shall be served in the same Service, &c. manner as a declaration in Ejectment is at present served, and in case of a vacant possession, by posting a copy thereof upon the door of the dwelling house (if any) or on some other conspicuous part of the property, and the persons named as Defendants in the Writ, or any of them, or any person having an interest in the land shall be allowed to appear within the time appointed, and also any other person shall be allowed to appear on filing an Affidavit in the office from which the Writ issued, that at the time of action brought he was and still is in possession of the property, either by himself or his tenants: Provided always, that the Court or a Judge shall, on cause Proviso. shewn, have power to strike out or confine defences set up by persons not in possession by themselves or their tenants. III. And be it enacted, That any person appearing shall be at liberty to limit his Limiting defence &c, defence to a part only of the property mentioned in the Writ, describing that part with reasonable certainty, in a notice entitled in the Court and cause, and signed by the party appearing or his Attorney, to be filed and served within four days after appearance, upon the Attorney whose name is endorsed on the Writ, if any, and if none, then upon the Plaintiff: Provided always, that if the description of the premises Proviso. in any Writ or notice be not sufficiently certain, the Court or a Judge, or the Judge of the County Court of the County in which the action is brought, may order better particulars of the land claimed or defended to be delivered. IV. And be it enacted, That an appearance without a notice, confining the defence Appearance without to part, shall be considered as a defence for the whole property claimed. limiting defence. Default of appear V. And be it enacted, That if no appearance shall be entered within the time appointed, or if an appearance be entered, but the defence be limited to part only, the anco, &c. Plaintiffs shall be at liberty to sign a judgment that the person whose title is asserted in the Writ shall recover possession of the property, or of the part thereof to which the defence does not apply; which judgment may be in the form in the Schedule A, to this Act. If an appearance VI. And be it enacted, That in case an appearance shall be entered, the case shall be at once considered at issue, and the record for trial shall be made up, setting forth entered." the Writ, stating the appearance with its date, and setting forth the notice limiting the defence, if any, of each of the persons appearing, so that it may appear for what part defence is made, and also setting forth a Plea in the form of the Schedule B, to this Act, which shall be the only Plea allowed, and the remainder of the record being made up as in other actions. be VII. And be it enacted, That a special case in any such action may be stated in the Special case may be same manner as at present, and if no special case be agreed to, the parties may proceed stated, to trial in the same manner as in other actions, and the question at the trial shall be, except in the cases hereinafter mentioned, whether the statement in the Writ of the Finding for claimants. Finding for defend ants. Joint tenants, &c. Judges may alter forms, &c. Jury may assess damages, &c. Proviso. When no appearance, that he is entitled to damages, &c, title of the claimants is true or false, and if true, then which of the claimants is entitled; but the Jury may find a special verdict as at present. VIII. And be it enacted, That upon a finding for the claimants, judgment may be signed, and execution issue for the recovery of possession and costs, as at present in the action of Ejectment, and the said judgment having the same and no other effect than at present. IX. Ând be it enacted, That upon a finding for the Defendants, or any of them, a judgment may be signed and execution issue against the claimants named in the Writ. X. And be it enacted, That in any such action brought by some or one of several persons entitled as joint tenants, tenants in common or coparceners, any joint tenant, tenant in common or coparcener in possession may, at the time of appearance, or within four days after, give notice, in the same form as in the notice of a limited defence, that he defends as such, and admits the right of the claimant to an undivided share of the property, but denies any actual ouster of him from the property, and within the same time file an Affidavit stating the same facts, and such notice shall be entered on the record in the same manner as the notice limiting the defence, and upon the trial, the additional question of whether an actual ouster has taken place shall be tried, as at present, in an action of Ejectment, and the effect of a judgment therein shall be the same as at present. XI. And be it enacted, That the Judges of the Superior Courts of Common Law shall have power from time to time to make such alterations in the forms of Writs and proceedings, and also such Rules as they may consider necessary to carry this Act into better effect. XII. And be it enacted, That in all cases wherein a Jury shall be empannelled to try any suit brought to recover possession of any property, the jury shall also be sworn to assess any damages to which the Plaintiff or Plaintiffs may be entitled for the use, occupation or enjoyment of the premises in dispute by the party or parties defending the suit, and any damage, waste or spoil occasioned to such premises by such party or parties; and the jury shall assess such damages as may appear just according to the evidence; Provided always nevertheless, that in all cases where substantial damages are demanded, the party or parties seeking to recover the same shall, with the original Summons, serve the Defendant or Defendants, and the person in occupation (if any) with a notice to the following effect, and that none but nominal damages shall be assessed unless such notice shall be given. "You are hereby notified that the Plaintiff or Plaintiffs named in the Summons served "herewith, will proceed against you, the said A. B., on the trial thereof, for the use, "occupation, rents and profits of the premises for which this action is brought, during "your possession and occupation of the said premises, and for all damages, waste and injury accruing to the said premises, or any part thereof, while in your possession "and occupation. 66 this day of "Dated at XIII. And be it enacted, That in all cases where no appearance is entered according to the provisions of this Act, and the Plaintiff has in consequence thereof signed judgment and entered up the same and sued out his Writ of Possession thereon, it shall and may be lawful for the said Plaintiff, after having given the notice in the twelfth clause of this Act mentioned, to suggest upon the Roll or Record of the judgment that he is entitled to damages for all or any of the causes set forth in the said twelfth clause of this Act mentioned, and thereupon, after giving the notice which the law now requires in all cases of assessment of damages of his intention to assess such damages, may be entitled at any Court of Assize and Nisi Prius thereafter, upon filing a certified copy of the said record and suggestion thereon in the said Court, to have a Jury empannelled to assess his said damages, and in case they find a verdict for the Plaintiff for any sum not less than Two Pounds, he shall upon filing the said record and verdict in the proper office, |