by reason of any matter or upon any ground which arose before fraud not to the passing of the said Act, or for the purpose of giving effect to be disturbed any equitable claim, interest or estate, which arose before the by equitable passing of the said Act, unless there has been actual and positive arose before fraud in the party whose title is sought to be disturbed or the establishaffected. claims which ment of the Court of Chancery. Court may ing. II. In regard to any other equitable claim or right, which may have arisen before the passing of the said Act, the said make orders in Court shall have power and authority (subject to appeal) to other cases make such Order and Decree as may appear to the said Court of claims arisjust and reasonable, under all the circumstances of the particular case, provided that the suit is brought within twenty years from the time when the right or claim arose; and no further time Proviso. shall be allowed for bringing any such suit, notwithstanding any disability of the claimant or of any one through whom his right accrued. III. This Act shall not apply to any such claims or rights as Act not to afaforesaid for which suits may now be pending in the said Court. fect pending CAP. CXXV. An Act to extend the Jurisdiction of the Division Courts of Upper Canada. [Assented to 30th May, 1855.] WHEREAS it is expedient to extend the Jurisdiction of the several Division Courts in Upper Canada, so as to enable those Courts to try causes and pronounce Judgment therein, within the Jurisdiction of such Courts as to amount, when the defendant does not reside in the Division or County where the cause of action arose : 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 of Canada, and it is hereby enacted by the authority of the same, as follows: suits. Preamble. tried in the I. Any suit or cause of action cognizable in a Division Court Cases may in amount, may be entered and tried in the Court holden in the hereafter be Division in which the cause of action arose, or in the Court brought and holden in the Division in which the defendant, or either of them division in when there are more than one, shall reside or carry on his which the business at the time the action is brought, notwithstanding that cause of action the defendant or defendants may at such time reside in a dif- which any ferent County or Division, or different Counties or Divisions, Defendant from that in which the cause of action arose and all such resides, although it be proceedings shall be taken for the obtaining Judgment and the not the divirecovery arose or in sion or with in which the cause of action arose. Exception as to execution. Proviso as to service of summons; in the County recovery thereof, and in the same manner to all intents and purposes as if the defendant or defendants resided, and the cause of action arose in the same Division, except that no writ in the nature of a writ of Fieri Facias or attachment, shall be executed out of the limits of the County or United Counties over which the Judge of the Court from which the same issued, shall have jurisdiction: Provided that when the defendant, or when there is more than one defendant, when one of them, resides in a County adjoining the one in which the action is brought and none of the defendants resides in the last mentioned County, the summons shall be served fifteen days, and when the defendant does not, nor does either defendant where there is more than one, reside in the County where the action is brought, or an adjoining County, the summons must be served twenty days at least before the holding of the Court at which the cause is to be tried, and if the defendant or defendants desire to make any defence mentioned in the forty-third section of the Upper Canada Division Courts Act of 1850, he, or one of them, shall give notice thereof in writing to the Clerk of the Division Court in which the action is to be tried, in the manner provided by that section, at least five days before the holding of such Court; provided that if it shall appear to the Judge that such notice had not been given, without the wilful default of the defendant or defendants, and that injustice would be done unless such defence should be allowed, he may adjourn the hearing of the cause, or such defence thereto, or any part thereof, until the next sitting of the Court, upon such terms as to payment of costs as shall appear to him to be just. And as to Defendants desiring to make any de fence under sect. 43 of 13 & 14 V. c. 53. In certain cases vision Courts may serve Writs, &c., out of their County. II. The Bailiff of any Division Court in Upper Canada may, Bailiff of Di- and he is hereby authorized and required to serve and execute all summonses, writs and orders of any Division Court that shall be delivered to him for service, although the same may have been issued from a Division Court of which he is not Bailiff, and to return the same to the Clerk of the Court of which he is Bailiff: Provided that he shall not be required to travel beyond the limits of the Division of which he is Bailiff, or allowed to charge milage for any distance travelled beyond the limits of the County in which the Court of which he is Bailiff is situated, in the service or execution of such process: And provided that nothing herein contained shall be construed so as to alter the law for the issuing or execution of attachments as provided for by the said Division Courts Act of 1850. Proceedings when a Plain vision Court III. It shall be the duty of the Clerk of any Division Court in tiff having ob. Upper Canada, upon the application of the plaintiff or defendant, tained a judg. or one of them when there are more than one, having an unment in a Di- satisfied Judgment in his favor in such Court, or his agent, to in one County, prepare a transcript of the entry of such Judgment in such wishes to en- Court, and to send the same to the Clerk of any other Division other County Court, in any other County in Upper Canada, with a certificate at the foot thereof, signed by such Clerk and attested by the force it in an in U. C. seal seal of the said Court, stating the amount unpaid upon such Judgment, and the date at which the same was recovered, which certificate shall be addressed to the Clerk of the Division Court to whom it is intended to be delivered; and it shall be his duty upon the receipt of such transcript and certificate, to enter the transcript in a book to be kept in his office for such purpose, and the amount due on such Judgment according to such certificate; and all other proceedings shall and may be had and taken for the enforcing and collecting such Judg ment in such Division Court, by the officers thereof, that can be had or taken, under the Upper Canada Division Courts Acts, upon Judgments recovered in any Division Court, for the like purpose: such Clerk shall also be bound when required, to forward Clerk to for all summonses to the Clerk of any other Division Court for ser- ward sumvice, and to receive the same when returned, and to receive those sent to him by any other Division Court Clerk for service, and sion for serto enter them in a book to be kept for that purpose, and to hand vice when required, and in the same to the Bailiff for service, and to receive them from the like manner to Bailiff and return them to the Clerk from whom he received receive and them; and also to give to any party to a suit, or his agent, copies return them. of subpoenas for his witnesses, when requested so to do. monses to another divi visions of 13 IV. All the provisions of the Upper Canada Division Courts Acts, in reference to costs in any suit brought in any Superior Certain pro Court for a cause of action cognizable in a Division Court & 14 V. c. 53, under those Acts, shall apply to any action which shall be so and 16 V. c. brought for any cause of action cognizable in the Division 177 to apply Courts under this Act. to suits under this Act. and Bailiffs in V. And whereas it is desirable to increase the fees of the Clerks and Bailiffs of the said Courts: Be it enacted, that from Fees to Clerks and after this Act shall come into force, the said Clerks shall creased. be entitled to the fees enumerated in the Schedule A hereto annexed, for the services therein mentioned, instead of the fees mentioned in the said Acts; and that the Bailiffs shall be entitled to five pence per mile instead of the mileage allowed by the said Act. VI. This Act shall come into force on the first day of July next after the passing thereof. Commencement of Act. SCHEDULE. SCHEDULE. AMENDED TARIFF OF FEES AND ALLOWANCES to be received by Clerks of Division Courts in Upper Canada. ing the same. 010 01 0 010 Returns to Treasurer, to be paid out of the Fee Fund, including attendance on the Judge to Audit the same, each, and to be retained from the Fee Fund in his hands.. Every search on behalf of a person not a party to a Suit, to be paid by the Applicant.. Every search for a party to a Suit CAP. CXXVI. An Act to amend the Law relating to the custody of Infants. [Assented to 30th May, 1855.] WHEREAS it is desirable that the law relating to the Preamble. custody of infant children shall be so amended as to enable the Judges of the Superior Courts of Law or Equity in Upper Canada, to give the custody of such children to their mothers in certain cases: 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 of Canada, and it is hereby enacted by the authority of the same, as follows: the order for al under 12 I. It shall be lawful for any of the Superior Courts of Law or Court or Judge Equity in Upper Canada, or for any Judge of either of such may make Courts, upon hearing the petition of the mother of any infant, lowing the being in the sole custody or control of the father thereof, or of mother access any person by his authority, or of any guardian after the death to any infant in the sole of the father, if such Court or Judge shall see fit, to make order custody of the for the access of the petitioner to such infant, at such times father or other and subject to such regulations as such Court and Judge shall person: or for think convenient and just, and if such infant shall be within its delivery if age of twelve years, to make order for the delivery of such years, and also infant to the petitioner, to remain in the care and custody of the order for its petitioner until such infant shall attain such age of twelve years, subject to such regulations as such Court or Judge shall direct, and also to make order for the maintenance of such infant by the father thereof, or out of any estate to which such infant may be entitled, by the payment by such father or out of such estate, of such sum or sums of money from time to time, as according to the pecuniary circumstances of such father or the value of such estate, such Court or Judge shall think just and reasonable. maintenance. compel the a attendance of witnesses. II. Such Court or Judge as aforesaid shall have power to Court or Judge enforce the attendance of any person before such Court or in any such Judge, to testify on oath respecting the matter of such petition, case may by order or rule to be made for that purpose, on the service of copy thereof and the payment of expenses as a witness, in the same manner as in any proceeding in any suit or action in the said Courts respectively, or to receive affidavits respecting the matters in such petition, such affidavits to be sworn before any Master, ordinary or extraordinary, in Chancery, or any Commissioner for taking affidavits in either of the Superior Courts of Common Law; and any person who shall swear falsely and corruptly |