Testament of the said A. B., deceased, or as the case may be,) should not have execution against you, (if against a representatire, here insert, as executor of the last Will and Testament of deceased, or as the case may be,) of a judgment, whereby the said A. B., (or as the case may be,) recovered against you, (or as the case may be,) $ (or £); and take notice that in default of your doing so, the said A. B., (or as the case may be,) may proceed to execution. 1. Money payable by the Defendant to the Plaintiff for (these words "money payable," &c., should precede money counts like 1 to 11, but need only be inserted in the first,) goods bargained and sold by the Plaintiff to the Defendant. 2. Work done and materials provided by the Plaintiff for the Defendant at his request. 3. Money lent by the Plaintiff to the Defendant. 4. Money paid by the Plaintiff for the Defendant at his request. 5. Money received by the Defendant for the use of the Plaintiff. 6. Money found to be due from the Defendant to the Plaintift on accounts stated between them. 7. A messuage and lands sold and conveyed by the Plaintiff to the Defendant. 8. The Defendant's use by the Plaintiff's permission of messuage and lands of the Plaintiff. 9. The hire of (as the case may be,) by the Plaintiff let to hire to the Defendant. 10. Freight for the conveyance of the Plaintiff for the Defendant at his request of goods in (ships, &c.) 11. The demurrage of a (ship) of the Plaintiff kept on demurrage by the Defendant. 12. That the Defendant on the day of A. D. , by his Promissory Note now overdue, promised to pay to the Plaintiff $ (or £ ), (two) months after date, but did not pay the same. 13. That one A, on, &c., (date) by his Promissory Note now overdue, promised to pay to the Defendant or order $ (or £ ), (two) months after date, and the Defendant indorsed the same to the Plaintiff, and the said Note was duly presented for payment and was dishonored, whereof the Defendant had due notice, but did not pay the same. 14. That the Plaintiff on, &c. (date) by his Bill of Exchange now overdue, directed to the Defendant, required the Defendant to pay to the Plaintiff (or £ ), (two) months after date, and the Defendant accepted the said Bill, but did not pay the same. 15. That the Defendant on, &c., (date), by his Bill of Exchange to A, required A to pay the Plaintiff $ (or £ ), (two) months after date, and the said Bill was duly presented for acceptance and was dishonored, of which the Defendant had due notice, but did not pay the same. 16. That the Plaintiff and Defendant agreed to marry one another, and a reasonable time for such marriage has elapsed, and the Plaintiff has always been ready and willing to marry the Defendant, yet the Defendant has neglected and refused to marry the Plaintiff. 17. That the Defendant by warranting a horse to be then sound and quiet to ride, sold the said horse to the Plaintiff, yet the said horse was not then sound and quiet to ride. 18. That the Plaintiff and Defendant agreed by charter party, that the Plaintiff's schooner called the Toronto, should with all convenient speed sail to Hamilton, and that the Defendant should there load her with a full cargo of flour and other lawful merchandize, which she should carry to Kingston and there deliver, on payment of freight per barrel, and that the Defendant should be allowed four days for loading and four days for discharging, and four days for demurrage, if required, at $ (or £ , per day; and that the Plaintiff did all things necessary on his part to entitle him to have the agreed cargo loaded on board the said schooner at Hamilton, and that the time for so loading has elapsed, yet the Defendant made default in loading the agreed cargo. · 19. That the Plaintiff let the Defendant a house, being (designate it) for . years, to hold from the A. D. rent day of at $ (or £) a year, payable quarterly, of which quarters are due and unpaid. 20. The Plaintiff by deed let to the Defendant a house (designate it) to hold for seven years from the day of , A. Ď. D. and the Defendant by the said deed covenanted with the Plaintiff well and substantially to repair the said house during the said term (according to the covenant), yet the said house was during the said term out of good and substantial repair. FOR WRONGS INDEPENDENT OF CONTRACT. 21. That the Defendant broke and entered certain land of the Plaintiff called lot No. &c., and depastured the same with cattle. 22. That the Defendant assaulted and beat the Plaintiff, gave him into custody to a Constable, and caused him to be imprisoned in the Common Gaol. 23. That the Defendant debauched and carnally knew the Plaintiff's wife. 24. That the Defendant converted to his own use (or wrongly deprived the Plaintiff of the use and possession of) the Plaintiff's goods, that is to say-(mentioning what articles, as for instance, household furniture.) in &c. 25. That the Defendant detained from the plaintiff his title deeds of land called lot No. &c. that is to say (describe the deeds.) , 26. That the Plaintiff was possessed of a mill, and by reason thereof was entitled to the flow of a stream for working the same, and the Defendant, by cutting the bank of the said stream, diverted the water thereof away from the said mill. 27. That the Defendant, having no reasonable or probable cause for believing that the Plaintiff, unless forthwith apprehended, was about to quit Canada with intent to defraud his creditors generally, or the the said Defendant in particular, maliciously represented that such was the fact, and thereupon maliciously procured a Judge's order for the issue of bailable process against the said Plaintiff, and caused the Plaintiff to be arrested and held to bail for $ (or £). 28. That the Defendant falsely and maliciously spoke and published of the Plaintiff the words following, that is to say, "He is a thief" (if there be any special damage, here state it, with such reasonable particularity as to give notice to the Defendant of the peculiar injury complained of, as for instance, whereby the Plaintiff lost his situation as shopman in the employ of N.) Lee Cap 15/65 If the Plaintiff replies and new assigns, the new assignment may be as follows. : and 51. And the Plaintiff as to the pleas, further says that he sues, not only for the trespasses in those pleas admittted, but also for, &c. If the Plaintiff replies and new assigns to some of the pleas, and new assigns only to the other, the form may be as follows: 52. And the Plaintiff as to the and pleas, furpleas (the pleas not replied to) admitted, but for the trespasses pleas, (the pleas replied to) admitted, and also ther says that he sues not for the trespasses in the in the for, &c. CAP. XXIII. An Act respecting Writs of Mandamus and Injunction. ER Majesty, by and with the advice and consent of the follows: MANDAMUS. When a Man obtained on equitable 1. The Plaintiff, in any action in either of the Superior Courts damus may be of Common Law, except replevin or ejectment, may indorse upon the Writ and copy to be served, a notice that the Plaintiff intends to claim a Writ of Mandamus, and the Plaintiff may thereupon claim in the declaration, either together with any other demand which may be enforced in such action, or separately, aWrit of Mandamus commanding the Defendant to fulfil any duty in the fulfilment of which the Plaintiff is personally interested. V. c. 43, s. 275. Form of Decla- The pleadings nary actions as 19 2. The declaration in such action shall set forth sufficient ground upon which the claim is founded, and shall set forth that the Plaintiff is personally interested therein, and that he sustains or may sustain damage by the non-performance of such duty, and that performance thereof has been demanded by him and been refused or neglected. 19 V. c. 43, s. 276. 3. The pleadings and other proceedings in any action in to be as in ordi- which a Writ of Mandamus is claimed, shall be the same in all near as may be. respects as nearly as may be, and costs shall be recoverable by either party, as in an ordinary action for the recovery of damages; and in case Judgment be given for the plaintiff that a Mandamus do issue, the Court in which such Judgment is given, besides issuing execution in the ordinary way for the costs and damages, may also issue a peremptory Writ of Mandamus to the Defendant, commanding him forthwith to perform the duty to be enforced. 19 V. c. 43, s. 277. 4. Such Writ need not recite the declaration or other pro- What the Writ ceedings or the matter therein stated, but shall simply command shall require. the performance of the duty, and in other respects shall be in the form of an ordinary Writ of Execution, except that it shall be directed to the party and not to the Sheriff, and may be issued in term or vacation and be made returnable forthwith, and no return thereto, except that of compliance, shall be allowed, but time to return it may upon sufficient ground be allowed by the Court or a Judge, either with or without terms. 19 V. c. 43, s. 278. 5. The Writ of Mandamus, so issued as aforesaid, shall have Force and effect the same force and effect as a Peremptory Writ of Mandamus, of the Writ. and in case of disobedience, may be enforced by attachment. 19 V. c. 43, s. 279. rect a substitut 6. The Court may, upon application by the Plaintiff, besides when the or instead of proceeding against the disobedient party by at- Court may ditachment, direct that the act required to be done may be done by ed performance. the Plaintiff or some other person appointed by the Court, at the expense of the Defendant; and upon the act being done, the amount of such expense may be ascertained by the Court either by an enquiry in the nature of an assessment of damages or by reference to the proper officer, as the Court or a Judge may order, and the Court may order payment of the amount of such expenses and costs, and enforce payment thereof by execution. 19 V. c. 43, s. 280. Writs of Man 7. Nothing in this Act contained shall take away the Jurisdic- Jurisdiction as tion of either of the Superior Courts to grant Writs of Mandamus; to Prerogative nor shall any Writ of Mandamus issued out of such Courts be damus, not to invalid by reason of the right of the prosecutor to proceed by be affected. action for Mandamus under this Act, but the provisions of this Act, so far as they are applicable, shall apply to the pleadings and proceedings upon a prerogative Writ of Mandamus issued by either of the Superior Courts. 19 V. c. 43, ss. 281, 282. sue in the first instance. 8. Upon application by motion for any Writ of Mandamus, Writs may isthe rule may in all cases be absolute in the first instance, if the Court thinks fit, and the Writ may bear teste on the day of its issuing, and may be made returnable forthwith whether in term or in vacation, but time may be allowed to return it by the Court or a Judge either with or without terms. 19 V. c. 43, 8. 282. the INJUNCTION. may issue by 9. In case of breach of contract or other injury, where When a Writ party injured is entitled to maintain and has brought an ac- of Injunction tion, he may, in like case and manner as hereinbefore provided, Courts of Law. with respect to Mandamus, claim a Writ of Injunction against the repetition or continuance of such breach of contract or other injury, or the committal of any breach of contract or injury of a R2 |