Action given to surer in default

the then Trea

of such account and payment.

Court may refer the account (if disputed) to a referee.

And make cer

cription of office, to sue for and recover the same from such person with double Costs of suit, in any Court of Record in this Province having competent jurisdiction, by action of debt; in which action it shall be sufficient for such Treasurer to declare as for money had and received to the use of such Treasurer for the purposes of this Act; and the Court in which the action shall be brought, may at the instance of either of the parties, refer the account in dispute in a summary manner, to be audited by any Officer of the Court or other fit person, who shall have power to examine both plaintiff and defendant upon oath; and upon the report of the referee (unless either of the parties shall shew good cause to the contrary) the Court may make a rule either for the payment of such sum as

tain orders on upon the report shalł appear to be due, or for staying the proceedings in the ac

the report of such referee.

In case of death

or removal of

of any Division

tion, and upon such terms and conditions as to the Court shall appear reasonable ; or the Court may order judgment to be entered up as by confession for such sum as upon the report shall appear to be due.

XVII. And be it enacted, that in case of the death of any person during the District Trea- time that he shall be holding the office of District Treasurer, or of Clerk of any surer or Clerk Division Court, or after he shall have resigned, or be removed from such office, Court the then the Treasurer for the time being, may in his own proper name only, or by his District Trea- name and description of office, sue for and recover from the Executors or Admincover by action istrators of such person deceased, all such sums as shall have been remaining in monies received his hands, of money received under the authority of this Act, by an action of and remaining debt, in any Court of Record in this Province having competent jurisdiction; in

surer may re

under this Act

in their hands.

The Court may

refer the disputed account

to any person.

The Plantiff

acting as Treasurer to be

which action it shall be competent for the plaintiff to declare that the deceased was indebted to the plaintiff for money had and received to his use for the purposes of this Act, or that the deceased died possessed of money had and received for the purposes of this Act, whereby an action hath accrued to the plaintiff, to demand and have the same from such Executors or Administrators; and a like action may be brought against any Executors or Administrators of Executors, or Administrators: and in all such actions, the defendant or defendants may plead in like manner, and avail themselves of the like matters in defence as in any action founded upon simple contracts of the original testator or intestate; and the Court may refer the account in dispute to be audited by any officer or person, and may proceed upon the report of such referee in like manner as in the case mentioned in the next preceding section.

XVIII. And be it enacted, that in all actions to be brought, as well as in all proceedings whatsoever to be instituted or carried on by any Treasurer, by virtue evidence of his of this Act, proof of his acting in the execution of the office of Treasurer, shall be

primâ facie

Office.

holding that

sufficient evidence of his holding such office, unless the contrary shall be shown in evidence by the defendants in such actions, or the parties against whom such proceedings shall be instituted and carried on.

and Clerks of

XIX. And be it enacted, that the Treasurer, and also every Clerk and The Treasurer Bailiff, who shall receive monies in the execution of their duty, shall give security Division Courts for such sum, and with so many sureties, and in such manner and form as the to give securiGovernor of this Province shall see reason to direct, for the due performance of their several offices, and for the due payment of all monies received by them under any provision of this Act.

the Division

Courts shall take Cogniz

ance.

Sums certain parable in

goods, &c.

XX. And be it enacted, that the Judge of every Division Court established of what cases under this Act, shall have power, jurisdiction, and authority to hold plea of all debts and contracts when the subject matter of the demand shall not exceed the sum of Ten pounds, and to hear and determine the same in a summary way; and every such Judge shall have power to make such orders, judgments, and decrees thereupon, as shall appear to him to be just and agreeable to equity and good conscience; and that upon any contract for the payment of a sum certain in labour, or in any kind of goods or commodities, or in any manner otherwise than in money, it shall be lawful for the Judge, after the day is passed on which the goods or commodities should have been delivered, or labour or other things performed, to give judgment for the amount in money, as if the contract had been so originally expressed: Provided always, that no action shall be brought or tried in any such Division Court, for any gambling debt, nor for any spirituous or malt liquors drunk Proviso. in a Tavern or Ale-House, nor for any cause involving the right or title to real estate : Provided also, that nothing in this Act contained shall be construed to constitute and create the said Division Courts, Courts of Record.

Mode of

commencing Division Court.

action in any

Service of the

XXI. And be it enacted, that the plaintiff, in any suit brought in any Division Court, shall enter a copy of his account or demand in writing, which shall be numbered according to the order in which it shall be entered, and thereupon a summons bearing the number of the account or demand on the margin thereof, shall be issued, which shall be in substance, in the form of the schedule to this Act annexed, according to the nature of the demand; and a copy of such summons, to which shall be attached a copy of such account or demand, shall be served on the defendant, Summons. eight days at least before the day on which the Division Court shall be holden at which the cause shall be tried; and delivery of such copies of summons and account or demand to the defendant, or delivery thereof to his wife or servant or any grown person, being an inmate of his dwelling house or usual place of abode, trading or dealing, shall be deemed a good service of such summons. Provided always, that personal service on the Debtor of such summons shall be necessary in all cases where the amount sued for exceeds the sum of forty shillings.

XXII. And be it enacted, that no such summons shall be issued, unless the Plaintiff shall, at the time of entering his account or demand, deposite with the Clerk of the Court, for every claim not exceeding twenty shillings, the sum of one

Plaintiff taking out any sumite with the

Clerk one twentieth part

shilling, and for every claim exceeding twenty shillings, one twentieth part there

of the sum de- of (neglecting any sum less than six-pence, in estimating such twentieth part,)

manded.

The Judge

and if, upon the day of the return of any such summons, or at any continuation or adjournment of the said Court, or of the cause for which the said summons shall have issued, the Plaintiff shall not appear in person, or by some other person in his behalf, or appearing, shall not make proof of his demand to the satisfaction of

may, in certain the Court, it shall be lawful for the Judge, if he shall think fit, to award to the Defendant a part or the whole of such deposite money, by way of costs, and as satisfaction for his trouble and attendance, with such further sum as the Judge

cases, award the whole or part of the sum so deposited, to

Money so

the Defendant. in his discretion shall think fit, and to order and compel the Plaintiff to pay such further sum, by such ways and means as any debt ordered to be paid by the deposited and same Court, can be recovered; but so much of the said deposite money as shall bered not be awarded to the Defendant, shall be returned on demand to the Plaintiff.

not so awarded

At what Di

vision Courts, any suit may be brought.

Any plaintif having a cause

of action above

the value of
£10,may aban-
don the exсевз

and so bring

the

of a Division Court.

XXIII. 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.

XXIV. 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 any Division Court, but any Plaintiff having a cause of action above the value of Ten pounds for which a suit might be brought under this Act, if the same were not above the value of Ten pounds, may aban

the jurisdiction don the excess, and thereupon the Plaintiff shall, on proving his case, recover to an amount not exceeding Ten pounds, 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.

Minors may

XXV. And be it enacted, that it shall be lawful for any person under the sue for wages age of twenty one years, to prosecute any suit in a Division Court, under this Act, for any sum of money not exceeding ten pounds, which may be due to him or her for wages, in the same manner as if he or she were of full age.

Court.

No privilege

to exempt any

XXVI. And be it enacted, that no privilege shall be allowed to any person

person from the to exempt him from the jurisdiction of the Courts created by this Act.

jurisdiction of a Division Court.

XXVII. And be it enacted, that where any Plaintiff shall have any debt partners or per- or demand recoverable under this act, against two or more persons, partners in trade or otherwise, jointly answerable, but residing in different divisions, it shall may be recovery be sufficient if one of such persons be served with the process as hereinbefore directed,

his recourse.

directed, and judgment may be obtained, and execution issued against such person, them, saving 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.

XXVIII. And be it enacted, that the Judge of the District 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, except when the amount claimed shall exceed two pounds ten shillings, and either of the parties shall require a jury to be summoned, as hereafter mentioned.

XXIX. And be it enacted, that in all actions where the sum of money sought to be recovered shall exceed two pounds ten shillings, it shall be lawful for the Plaintiff or Defendant to require a jury to be summoned to try the said action, and in every 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 said Court at the time when he shall enter his account or demand, 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 service of the summons on the said Defendant, and the said Clerk shall cause a copy of such notice given either by the Plaintiff or Defendant, to be communicated to the opposite party in the said action, either by post or by causing the same to be delivered at his usual place of abode or business, but it shall not be necessary for either party to prove on the trial that such notice was communicated to the other party by the Clerk.

XXX. And be it enacted, that every party 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.

The Judge of the District Court to be the

sole Judge in

matters decided in Division

Court.

Where the sum claimed shall exceed

£2 10 0. a Jurvinay be re

quired. Proviso.

Notice in writing to be given by the the Jury.

party requiring

The party shall pay to the

ongiving notice Clerk such sum

as is set down in the schedule of fees.

Causes to be set down in the

XXXI. 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 "Judge's list". 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."

Causes to be set down in the "Jury's list".

The Clerk of

the Peace to deliver to the Clerk of the Court list of Jurors.

XXXII. And be it enacted, that the Clerk of the Peace in every District shall deliver, or cause to be delivered, to the Clerk of each Division Court within his District (at the same times, and in like manner as Clerks of the Peace are now required by law to deliver lists of Jurors to the several Sheriffs) a true and complete list of the jurors residing within every such division, respectively, and the Clerk of each Division Court shall cause not less than fifteen of the persons named in such list to be summoned in rotation to attend the Court at the time and place to be mentioned in the summons: Provided always, that either of the parties to any such cause shall be entitled to his lawful challenge against entitled to his any of the said jurors in like manner as he would in any Superior Court: Pro

Proviso.

Either party

lawful challenge.

vided also, that if any jury shall be required to be summoned before the Clerk of the Peace shall have delivered the list of jurors, as aforesaid, to the Clerks of the several Division Courts in his District, the Clerks of such Division Courts shall cause to be summoned not less than fifteen resident inhabitant house sident Inhabi- holders who are rated and assessed upon any township assessment roll within his

Where Clerk of Division Courts may summon 15 re

tant Houscholders.

Each Jury

man to receive six pence for every cause in

division.

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

be sworn.

Five Jurors

to be empannel

led and sworn.

Each cause to be decided

by the majority

of the Jury.

Any Juryman

neglecting or refusing to attend to be fined.

Proceedings

on the day at which the Defendant shall be summoned to appear

No cause of

a ction to be

XXXIV. 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 verdict of the majority of the jury so empannelled and sworn; and any juryman who after being duly summoned for that purpose as aforesaid shall wilfully neglect or refuse to attend the Court, shall be liable to a fine not to exceed ten shillings to be set on him by the Judge, which fine shall be levied and collected as other fines are hereinafter directed to be levied and collected, and shall form part of the general fee fund to be paid to the Treasurer of the District.

XXXV. 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 or her behalf, and thereupon the Defendant shall be required by himself or herself, or by some person on his or her 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.

XXXVI. And be it enacted, that no evidence shall be given by the Plaintiff, proved except on the trial of any such cause as aforesaid, of any cause of action except such

as