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Date: 1856-03-06
By: Province of Canada (Parliament)
Citation: Bill 30, An Act to amend the Laws in Upper Canada, respecting Appeals, and to alter the Constitution of the Court of Error and Appeal, 3rd Sess, 5th Parl, Prov C, 1857.
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No. 30.

3rd Session, 5th Parliament, 20 Victoriae, 1857.

BILL.

An Act to amend the Laws in Upper Ca-
nada, respecting Appeals, and to alter
the Constitution of the Court of Error
and Appeal.

Received and read first time, Tuesday, 3rd
March, 1857.

Second reading, Friday, 6th March, 1857.

Hon. Atty. Genl. MACDONALD.

1857.] BILL. [No. 30.

An Act to amend the Laws in Upper Canada, respect-
ing Appeals, and to alter the Constitution of the
Court of Error and Appeal.

HER Majesty, by and with the advice and consent of the
Legislative Council and Assembly of Canada, enacts as
follows:

I. The thirty-ninth section of an Act of the Parliament of
Canada, passed in the twelfth year of Her Majesty’s Reign, in-
tituled, An Act to make further provision for the administration
of Justice, by the establishment of an additional Superior Court
of Common Law, and also a Court of Error and Appeal, and for
other purposes, is hereby repealed.

II. The Court of Error and Appeal shall be composed hence-
forth of the Judges of the several Courts of Queen’s Bench,
Chancery and Common Pleas in Upper Canada, who shall be
ex officio members thereof, and of such other persons being Bar-
risters of the Upper Canada Bar, of not less than twenty years’
standing on the books of the Law Society, as the Governor of
this Province shall, by Commission under the Great Seal thereof,
appoint to be a Judge of and in the said Court of Error and
Appeal, and every person to be so appointed shall take such
rank and precedence, after the Chief Justice of the Court of
Queen’s Bench, the Chancellor of Upper Canada, and the Chief
Justice of the Court of Common Pleas, in that Court, as shall be
designated in his Commission.

III. The Court of Error and Appeal so composed shall have,
possess, exercise and enjoy the same powers and authorities as
are contained and conferred in and by the above mentioned Act
passed in the twelfth year of Her Majesty’s Reign.

IV. The Court of Error and Appeal shall hold its sittings
at the city of Toronto, on the second Thursday next after the
several Terms of Hilary, Easter and Michaelmas, and shall have
power to adjourn from time to time, and to meet again at the
time fixed by such adjournment, for the transaction of business;
and the Chief Justice of the Court of Queen’s Bench, for the
time being, and in his absence, the Judge of the said Court
entitled to precedence over all the Judges actually present,
shall preside therein, and members of the Court
shall be necessary to constitute a quorum.

V. All appeals which shall be depending in the said Court
at the time this Act shall come into force, shall be carried on
under the provisions of this Act, but where any such appeals
shall be standing for Judgment, Judgment may be given as if
this Act had not been passed.

VI. The Court of Error and Appeal shall have power to
quash proceedngs in all cases brought before it, in which Er-
ror or Appeal does not lie, or where such proceedings are taken
against good faith, or in any case in which proceedings might
heretofore have been quashed in the said Court, according to the
law and practice in England.

VII. The Court of Error and Appeal shall in all cases have
power to dismiss the Appeal, or to give such Judgment or
Decree, and to award such process or other proceeding as the
Court whose decision is appealed against ought to have given,
without regard to the party alleging Error, and may also award
restitution and payment of costs; and the Judgment, Decree or
Award shall be certified by the Clerk of the Court of Error and
Appeal to the proper Officer of the Court below, who shall there-
upon make all proper and ncessary entries thereof, and all sub-
sequent proceedings may be taken thereupon, as if the Judgment,
Decree or Award had been originally given in and by the Court
below.

VIII. The appellant shall in all cases be at liberty to discon-
tinue his proceedings by giving to the respondent a notice
headed in the Court and cause, and signed by the appellant or
his Attorney, stating that he discontinues such proceedings; and
thereupon the respondent shall be at once entitled to the costs
of and occasioned by the proceedings in Appeal, and may either
sign Judgment for such costs, or obtain an Order for their pay-
ment in the Court below, and may take all further proceedings
in the Court below as if no appeal had been brought.

IX. The respondent shall in all cases be at liberty to consent
to the reversal of the Judgment, decree or proceeding appealed
against, by giving to the appellant a notice headed in the Court
and cause, and signed by the respondent or his Attorney, stating
that he consents to the reversal of such Judgment, decree or
other proceeding, and thereupon the Court shall pronounce
Judgment of reversal as of course.

X. The death of the appellant after the security required by
law to be given by him shall have been perfected, and have
been, or shall stand allowed, shall not cause the appeal to abate,
but it may be continued as hereinafter mentioned.

XI. The death of the respondent shall not cause the appeal to
abate, but it may be continued as hereinafter mentioned.

XII. The marriage of a woman appellant or respondent, shall
not abate the appeal, but the proceedings in error and appeal
shall go on as if no such marriage had taken place, and the
decision of the Court shall be certified as in other cases.

And as to appeals from the Court of Queen’s Bench and
Common Pleas; Be it enacted as follows:

XIII. An appeal shall lie upon a Judgment upon a spe
cial case in the same manner as upon a Judgment upon a
special verdict, unless the parties agree to the contrary; and
the proceedings for bringing a special case before the Court
of Error and Appeal shall, as nearly as possible, be the
same as in the case of a special verdict, and the Court of Error
and Appeal are required to draw any inferences of fact from the
facts stated in such special case, which the Court where it
was originally decided ought to have drawn.

XIV. An appeal shall lie in all cases of rules to enter a
verdict or non-suit upon a point reserved at the trial, if the rule
to shew cause be refused, or if granted be afterwards discharged
or made absolute.

XV. In all cases of motion for a new trial upon the groun
that the Judge has not rule according to law, if the rule to
shew cause be refused, or if granted be afterwards discharged
or made absolute, the party decided against may appeal,
provided any one of the Judges dissent from the rule being
refused or when granted, being discharged or made absolute,
as the case may be, or provided the Court in its discretion
thinks fit that an appeal should be allowed; provided that where
the application for a new trial is upon matter of discretion
only, as on the ground that the verdict was against the weight
of evidence or otherwise, no appeal shall be allowed.

XVI. No appeal shall be allowed in either of the cases
mentioned in the three next preceding sections, unless notice
thereof be given in writing to the opposite party or his attorney
and to the Clerk of the Crown of the proper Court, within
days after the decision complained of, or within such further
times as may be allowed by the Court or a Judge.

XVII. An appeal shall lie in ejectment in the same manner
and to the same extent as in any other case.

XVIII. An appeal shall lie in all cases in which any By-law
of a Municipal Corporation has been quashed by rule of Court
after argument.

XIX. No other appeals from the decision of the said Courts
of Queen’s Bench or Common Pleas shall be allowed, unless
the Judgment decision, or other matter appealed against, shall
appear of record.

XX. A Writ of Error and Appeal shall not be necessary or used
in any cause, and the proceeding to appeal against any Judg-
ment shall be a step in the cause, and shall be taken in manner
hereinafter mentioned; but nothing in this Act contained shall
invalidate any proceedings already taken or to be taken by
reason of any Writ of Error and Appeal issued before the
commencement of this Act.

XXI. Either party alleging error in law, may deliver to the
Clerk of the Crown of the Court wherein the suit was insti-
tuted, a Memorandum in writing, in the form contained in the
Schedule A to this Act annexed (No. 1) or to the like effect,
entitled in the Court and cause, and signed by the party or his
Attorney, alleging that there is error in law in the record and
proceedings, whereupon, the Clerk shall file such Memorandum,
and deliver to the party lodging the same a note of the receipt
thereof, and a copy of such note, together with a statement of
the grounds of error, intended to be argued, may be served on
the opposite party or his Attorney.

XXII. Proceedings in any appeal from decisions in the Courts
of Common Law shall be deemed a supersedeas of execution
from the time of the perfecting and allowance of the security
required by the fortieth section of the above mention Act,
passed in the twelfth year of Her Majesty’s Reign; Provided
always, that if the grounds of Error or Appeal shall appear to
be frivolous, the Court whose judgment is appealed from, or a
Judge upon summons, may order execution to issue.

XXIII. The assignment of and joinder in error in law shall not
be necessary or used, and instead thereof a suggestion to the
effect, that error is alleged by the one party and denied by the
other, may be entered on the Judgment-roll, in the form con-
tained in Schedule A to this Act annexed (No. 2.) or to the
like effect; Provided that in case the respondent intends to
rely upon the proceeding in error being barred by lapse of time
or by release of error or other like matter of fact, he may give
four days’ notice in writing to the appellant, to file and serve a
copy of his grounds of error and appeal as heretofore, instead
of entering the suggestion, and he shall within eight days plead
thereto the bar by lapse of time, or release of error or other
like matter of fact, and thereupon further proceedings may be
had according to the law and practice in England.

XXIV. The roll shall be made up, and the suggestion last
aforesaid entered by the appellant within ten days after the
service of the note of the receipt of the Memorandum alleging
error, or within such other time as the Court or a Judge may
order, and in default thereof, or of assignment of error in cases
when an assignment is required, the respondent, his executors
or administrators, shall be at liberty to sign Judgment of non
pros.

XXV. In case of an Appeal on a Judgment given against
several persons, and one or some only shall appeal, the Me-
memorandum alleging error, and the note of the receipt of such
Memorandum shall state the names of the persons who appeal,
and in case the other persons against whom Judgment has been
given decline to join in the appeal, the same may be continued
and the suggestion last aforesaid entered, stating the persons
who appeal without any summons and severance, or if such
other parties elect to join, then the suggestion shall state them
to be and they shall be deemed appellants although not men-
tioned as such in previous proceedings.

XXVI. Upon such suggestion of error alleged and denied
being entered, and after the security required to be given by the
appellant shall have been duly allowed, the cause may be set
down for argument in the Court of Error and Appeal as here-
tofore, and the Clerk of the Court appealed from shall, on pay-
ment of his lawful fees, prepare a full transcript of the Judgment
appealed from and certify the same under the seal of the Court,
and shall forthwith transmit the same to the Clerk of the Court
of Error and Appeal.

XXVII. In cases of appeals upon motions or rules for new
trials, or to enter a verdict or non-suit, or upon rules whereby
and by-law is quashed, such appeal shall be upon a case to be
stated by the parties (and in case of difference to be settled by
the Court or a Judge of the Court appealed from) in which shall
be set forth so much of the pleadings, evidence, affidavits,
documents and the ruling or Judgment objected to as may be
necessary to raise the question for the decision of the Court of
Error and Appeal; and the case so stated and settled shall be
forthwith delivered by the appellant to the Clerk of the Court
of Error and Appeal, and the case may, after the security
required to be given by the appellant shall have been duly al-
lowed, be set down for argument.

XXVIII. The appellant shall deliver to the said Clerk at
least four clear days before the day appointed for hearing the
argument, for the use of the Judges, two copies of the transcript
of the Judgment or of the case mentioned in the last section, as
the case may be, or in default thereof the appeal may be dis-
missed with costs.

XXIX. In case of the death of one of several appellants, a
suggestion may be made of such death, which suggestion shall
not be traversable but shall only be subject to be set aside if
untrue, and the proceedings may be thereupon continued at
the suit of and against the surviving appellant, as if he were the
sole appellant.

XXX. In case of the death of the sole appellant, or of all the
appellants, the legal representative of the sole appellant, or of
the last surviving appellant may, by leave of the Court or a
Judge, enter a suggestion of the death, and that he is such legal
representative, which suggestion shall not be traversable but
shall only be subject to be set aside it untrue, and the proceed-
ings may thereupon be continued at the suit of and against
such legal representative as the appellant, and if no such sug-
gestion shall be made the respondent may proceed to an affir-
mance of the Judgment according to the practice of the Court,
or take such other proceedings as he may be entitled to.

XXXI. In case of the death of one of several respondents, a
suggestion may be made of such death, which suggestion shall
not be traversable but shall only be subject to be set aside if
untrue, and the proceedings may be continued against the
surviving respondent.

XXXII. In case of the death of a sole respondent or of all
the respondents, the appellant may proceed upon giving one
months notice of the appeal, and of his intention to continue
the same to the representative of the deceased respondents, or
if no such notice can be given, then by leave of the Court, or a
Judge upon giving such notice to the parties interested, as the
Court or Judge may direct.

XXXIII. If a woman being appellant or respondent shall
marry pending the appeal, and Judgment shall be given for her,
execution may thereupon be issued in the Court below, by the
authority of the husband without any suggestion or Writ of Re-
vivor, and if Judgment be given against her, such Judgment
may be executed in the Court below against the wife alone,
or by suggestion or Writ of Revivor pursuant to the Common
Law Procedire Act, 1856, Judgment may be obtained against
the husband and wife, and execution may issue thereon.

And as to appeals from the Court of Chancery; Be it enacted
as follows:

XXXIV. Every part desirous of appealing from any Decree
or Order in the said Court of Chancery, shall file a peti-
tion of appeal to be in the form contained in Schedule A to
this Act annexed (No. 3.) with the Clerk of the Court of Error
and Appeal, and a copy thereof, together with a notice of the
hearing of the appeal, shall be served on the respondent, his
Solicitor or agent, at least two months before the time named
in such notice for the hearing of the appeal, and such
petition shall not be answered, but at the time named in the
notice the parties must attend to argue the appeal, and after the
filing of the petition and service of a copy thereof, and of the
notice aforesaid, proceedings shall go on as if the petition had
been answered and the time named in the notice had been ap-
pointed by the Court for hearing the appeal.

XXXV. In appeals from any decree or order of the Court of
Chancery, it shall be the duty of the appellant to bring the same
to a hearing within the time following, that is to say: upon
appeal from any decree or decretal order, within one year from
the pronouncing of such decree or decretal order; and upon
appeal from any interlocutory order, not being a decretal order,
within six calendar months from the pronouncing of the same,
or within such further time as may be allowed for that purpose
by the said Court of Error and Appeal, or by the Court of
Chancery or a Judge thereof, upon special grounds shewn to
the satisfaction of the Court or Judge granting the same: Pro-
vided always, that as to any decrees or oders which, under any
general orders of the Court of Chancery, do not become absolute
upon the same being pronounced, the time limited for appealing
therefrom shall be computed from the time when the same shall
have become absolute.

And with respect to the giving security in cases of appeal to
Her Majesty, in Her Privy Council, and to costs in such cases
of appeal; Be it enacted as follows:

XXXVI. Every Judge of the Court of Error and Appeal shall
have authority to approve of and allow the Bond or other secu-
rity to be given by any party who intends to appeal to Her
Majesty in Her Privy Council, whether the application for such
allowance be made during any of the terms appointed for the
sitting of the said Court, or at any other time.

XXXVII. Any costs awarded by any decree or order of Her
Majesty, in Her Privy Council, upon an appeal from the said
Court of Error and Appeal, shall be recoverable by the same
process as costs awarded by the said Court of Error and Appeal.

And in order to enable the Judges to carry this Act thoroughly
into effect by making rules and regulations, and to frame all
necessary proceedings for that prupose; Be it enacted as fol-
lows:

XXXVIII. It shall be lawful for the Judges of the said Court,
or any give or more of them, of whom the Chief Justice of the
Court of Queen’s Bench and the Chancellor shall be two, from
time to time make all such general rules and orders for the
effectual execution of this Act, and of the intention and object
thereof, and for fixing the costs to be allowed for and in respect
of proceedings in the said Court, and for regulating the different
proceedings in appeal, as to them may seem expedient for any
of the said purposes; and also from time to time to alter and
amend any of the existing rules, or any rules to be made under
the authority of this Act, and to make other rules instead there-
of: Provided always, that until such rules are made, the present
rules and the existing practice and mode of proceeding of and
in the said Court, except so far as changed, modified and super-
seded by the provisions of this Act, shall continue and remain
in force.

SCHEDULE A

Referred to in the foregoing Act.

No. 1.

In the (Q.B. or C.P.)

The day of , in the year of our Lord, 18

(The day of lodging note of Error.)

A.B. and C. D.

The plaintiff (or defendant) says that there is error in law
in the record and proceedings in this action, and the defendant
(or plaintiff) says that there is no error therein.

(Signed) A.B. Plaintiff.
(or C.D. Defendant)
(or E.F. Attorney for Plaintiff or Defendant.)

No. 2.

The day of , in the year of our Lord, 18

(The day of making the entry on the Roll.)

The plaintiff (or defendant) says that there is error in the
above record and proceedings, and the defendant (or plaintiff)
says there is no error therein.

No. 3.

IN THE COURT OF ERROR AND APPEAL.

Between A.B. Appellant, and C.D., Respondent.

To the honorable the Judges of the said Court.

The petition of the said A.B. sheweth:

That a Decree (or Order) was on pronounced by
Her Majesty’s Court of Chancery for Upper Canada, in a certain
cause depending in the said Court, wherein your petitioner was
plaintiff (or defendant) and the above named C.D. was
defendant (or plaintiff), which said Decree (or Order) has been
duly entered and enrolled.

That your petitioner hereby appeals from the said Decree (or
Order) and prays that the same may be reversed or varied, or
that such other Decree (or Order) in the premises may be made
as to your honorable Court shall seem meet.

And your petitioner will ever pray, &c.

(Certificates of Counsel to be added.)