CHAPTER 101. An Act respecting the Recovery of Small Debts. [Assented to March 10th, 1916.] IS MAJESTY, by and with the advice and consent of the 1. This Act may be cited as "The Small Debts Recovery Short title. Act." 2. In this Act, unless otherwise required by the context, "Magistrate." the expression "magistrate" shall mean a police magistrate appointed by order-in-council to exercise jurisdiction under this Act residing in the County Court judicial division within which the defendant resides, or in case the defendant is a municipal corporation, in the judicial division within which the municipality or any part of it lies, or in which, if a trading company, it has an agency or place of business. ed not to exceed 3. The provisions of this Act shall apply to all claims and Amount claimdemands for debt, whether payable in money or otherwise, $50.00. where the amount or balance claimed does not exceed $50.00, but no municipality shall proceed for the recovery of taxes under this Act. Summons. 4. A person having such claim or demand may obtain Form of from such police magistrate a summons substantially in form A in the schedule to this Act. furnished mag tiff. 5. The plaintiff when applying for such summons shall Statement of furnish the magistrate with a simple statement in writing of the claim to be cause of action with a copy to file and a copy or copies to serve; istrate by Plainin the case of an account the particulars shall be in the usual form showing the items of the account with dates; in the case of a bill, note or order, a copy thereof shall be furnished, and in Particulars and the case of a claim under any other written instru- copies of proof. ment a copy shall be furnished, or a concise statement, of the purport or effect of it shall be given to the extent of exhibiting the grounds of action, so that in each case it may be known or understood by a person of ordinary intelligence what the action is brought for. The original particulars of the claim furnished shall be attached to To be attached the summons, and a copy of such particulars shall be attached to each copy of the summons to be served. to copy of sum mons. 6. Every magistrate who issues any such summons shall keep Magistrate to a book in which he shall enter all processes issued by him under keep record. Method of service of summons, etc. Method of service on corporations, companies, etc. In the case Proof of service. When service to be effected. Summons returnable. Magistrate may order re-service this Act with the date and names of the parties and the judgments rendered. 7. The summons may be served by any person upon the person to whom it is directed either personally by delivering to him a copy with a copy of the particulars of the claim, or if such person cannot conveniently be found by leaving such copies for him at his last or most usual place of abode with some inmate thereof apparently of the age of sixteen years or over. 8. Where the defendant is a corporation the summons shall be served on the mayor, overseer, reeve, clerk, secretary or secretary-treasurer or the president, head officer, secretary or accredited agent or officer of a company transacting business within the judicial division. 9. In the case of co-partners in trade doing business under a firm name, the names of all the members of which may not be set forth, it shall be sufficient in process against the copartners to insert the name and style of the firm as used by it and to serve such process upon any member of the firm residing or doing business in the judicial division. 10. Service of such summons may be proved by the oral testimony or by the affidavit of the person effecting the same (form B) and must be effected at least three clear days before the return day thereof, exclusive of Sundays and holidays; provided that if the magistrate who issued the summons is satisfied in any case that the interval between service and return is insufficient he may adjourn the hearing. 11. The summons shall be returnable not less than six days nor more than twenty days from the date of issue. 12. Upon any summons being returned without having where summons been served, the magistrate may at the request of the plaintiff, returned from time to time and as often as may be necessary, change the date appointed in it for the hearing and re-issue the sum without service. Counter claims. When counter claim equals entered for defendant. mons. 13. Debts due from the plaintiff to the defendant before action brought may be set off or set up by way of counterclaim against the plaintiff's claim at the trial; but if the presiding magistrate is of opinion that the plaintiff has thereby been taken by surprise he may adjourn the hearing. 14. If a set off or counterclaim is established equal to the debt judgment debt due the plaintiff the defendant shall have judgment with costs; if a set off or counterclaim exceeding the amount of the debt due the plaintiff by a sum not more than $50 is established, then the defendant shall have judgment for the excess with costs; if the set off or counterclaim established be less than the plaintiff's debt the latter shall have judgment for what is due him with costs. defendant's plaintiff by 15. If the defendant's demand exceeds the debt due the Where plaintiff by more than $50 the defendant may set off the amount demand exceeds of the plaintiff's claim, but shall not have judgment for the amount due overplus unless he abandon so much as shall reduce the excess more than $50. to $50, he may, however, sue for such overplus in any court of competent jurisdiction. cutors, etc. 16. In suits brought by executors or administrators the Suits by exedefendant may set off demands due him from the testator or intestate. against exe 17. When a set off is established in a suit brought by exe-Judgment cutors or administrators the judgment shall be against them as cutors where such, but execution thereon shall bind only the assets in their lished. hands. set off estab cases. 18. No action shall be tried under this Act to which the Action debarred where Crown is Crown is a party, or where the title to land is brought in ques- party in certain tion, or the action is for the recovery of a debt exceeding $50, unless the same be reduced by payment or by abandonment to that sum, or where the action is against personal representatives or the assignees of an insolvent debtor. adjourn hear 19. A magistrate may adjourn court from time to time or Magistrate may from day to day if necessary to finish the business; he may also in ing. the absence of material and necessary witnesses or for other good cause when made to appear on oath or affidavit adjourn the hearing for any period not longer than one week, but only one such adjournment shall be granted except in the case of the sickness or absence from Manitoba of a party to be shown on oath or affidavit. witnesses. 20. A magistrate may issue subpoenas to witnesses (form C) Subpoenas to to be served within the Province, and the person subpoeaned on being tendered the legal fee shall attend. 21. The subpoena may be served by any person by showing it Service of subto the witness and delivering to him a copy thereof with his fees. poena. subpoena is 22. A subpoena issued by a magistrate hereunder shall have Same effect as the force and effect of a subpoena issued out of a County Court sued by County and any witness not attending in obedience thereto shall be Court." liable to attachment and shall also be liable in all other respects as for disobedience to such subpoena. process. 23. Every cause shall be tried or determined at the return Return of of the process, if duly served, or on some day to which the court or hearing is adjourned. Public Court. 24. The room or place in which the magistrate sits to hear Definition of a and try a claim under this Act shall be deemed an open and public court to which the public generally may have access so far as the same can conveniently be given them. 25. The plaintiff may withdraw his claim before trial or withdrawal of consent to judgment for the defendant. If he fail to appear the claim. Magistrate to write down the evidence of witnesses. When defendant does not appear. Processes in forms pre claim may be dismissed or the hearing adjourned in the discretion of the magistrate and in all cases the successful party shall recover costs. 26. The presiding magistrate shall take down in the narrative form as fully as he can the evidence offered on the trial and shall read over to each witness the evidence given by him and the witness shall, after any necessary corrections are made, subscribe his name thereto; the evidence shall be taken on oath and the parties and witnesses shall be subject to cross examination and re-examination; the parties may be represented by solicitors or agents. 27. If the defendant do not appear and defend the magistrate may adjourn the hearing as herein before provided or the plaintiff may prove his case and judgment may be given against the defendant in his absence. 28. The processes and proceedings in actions in magistrates' actions to be in courts under this Act shall be according to the forms in the schescribed by the dule to this Act or to the like effect and the fees therefor shall be taxed according to the table of fees contained in form E in such schedule. Act. Affidavits. Taxation of fees and disbursements. Certificate of judgment. Filing of certificate of judgment with Court. 29. Affidavits to be used in said magistrates' courts or in proceedings in appeal therefrom may be sworn before any justice of the peace, notary public or commissioner for taking oaths, and may be headed in the manner shown in said forms. 30. The magistrate shall tax and allow to the successful party his actual disbursement for fees and witness fees for the witnesses, including such party, who attend the trial on his behalf, whether such witnesses be sworn and examined or not, provided that it be made to appear to the magistrate that such witnesses were material and necessary and attended for the purpose of giving evidence. 31. Any magistrate who has tried a case under this Act shall upon request and on payment of a fee of twenty-five cents therefor furnish a certificate of such judgment in form D, and such certificate shall be admitted as evidence of the said judgment without any proof of the authenticity of the signature of such magistrate or any other proof whatsoever. 32. (1) The person in whose favor judgment was given or his agent, upon payment of a fee of fifty cents, may file a certiclerk of County ficate of the judgment in form D as provided in section 31 in the office of the clerk of the County Court for the judicial division in which the action is brought and thereupon it shall be entered as a judgment of such court, and execution, garnishing proceedings and certificate for registration against lands may be issued thereon and enforced according to the ordinary procedure of that court or of the Court of King's Bench where applicable, but no judgment for less than $40 shall be registered against land. Judgment of tourt. (2) In cases where an appeal has been taken as hereafter Filing in case of provided such filing may be made after the appeal has been appeal. heard and disposed of; where no appeal has been taken such filing may be made at any time after the expiry of ten days from the date of pronouncing judgment. notice of appeal (3) The clerk of the County Court shall not accept a certifi-Lapse of 10 cate for filing until he has satisfied himself that ten days have days and no elapsed since judgment was pronounced and that no notice before filing of of appeal has been filed. certificate of judgment. hear legal in 33. A judgment rendered before a magistrate shall bear legal Judgments to interest from the date upon which it is filed and entered as a terest. judgment of the County Court and execution may be issued for the amount of the judgment and interest thereon and costs of the execution and of executing the same. 34. (1) Where a judgment is against a firm execution may Where judgissue (a) against any property of the partnership; (b) against the property of any partner who has appeared; ment is against a firm execution may issue against Property of partnership Property of partner. (c) against the property of any person who has been in- Property of any dividually served as a partner with a copy of the summons. person served as a partner. (2) In an action against joint debtors other than members Joint estate. of a firm, execution may issue against the joint estate, if any, and against the separate property of the defendants who have been served with the process. to County 35. Any party considering himself aggrieved by the judg- Right of appeal ment of a magistrate, may appeal to the judge of the County Court. Court of the judicial division in which the action was brought. heard not ear ment. 36. Such appeal shall be to the next sittings of the County Appeal may be Court which shall be held not earlier than fourteen days after lier than 14 the date of pronouncing judgment, at the place where the cause days after judgwas tried or the nearest place thereto where court is appointed to be held; provided that the judge may set down the appeal to be heard at any time after the expiry of the said period of fourteen days. tention to ap 37. The appellant shall give notice of his intention to appeal Notice of inby filing in the office of the clerk of the County Court a notice peal. in writing to that effect and serving the opposite party and the magistrate with a copy thereof. transmit evi 38. The magistrate shall thereupon transmit to the clerk of Magistrate to the County Court the evidence taken by him at the trial together dence to Court. with all documents in his possession connected with the case certified under his hand. 39. The court to which such appeal is made shall hear Powers of court. and determine the matter of the appeal and make such order thereon, with or without costs to either party, including costs of the court below, as may seem meet. |