Down North on the Labrador Circuit:
The Court of Civil Jurisdiction 1826 to 1833
by Nina Jane Goudie
Rules of Practice and Proceedings for the Court of Civil Jurisdiction at the Labrador117
No. 1 (See the accompanying form #1)
In all cases the plaintiff may commence his suit by a summons which will command the defendant generally to pay to the plaintiff the sum demanded by him, or otherwise to appear in the Court on a given day to show cause why he will not do it. Upon the appearance of the parties the Judge will hear the complaint of the plaintiff and then examine, upon oath, such witnesses as he may produce in support of it.
The defendant will afterwards be called on to make his defence, and will, in like manner, be permitted to substantiate it by evidence upon oath.
The material facts, and real merits of the case being thus made known to the Judge he will, upon due consideration thereof, pronounce such judgment, or decree, as shall seem to him best calculated to render substantial justice to the parties.
No.2 (See form #2)
If the summons shall be disobeyed, or if there shall be reason to suspect that the defendant is about to withdraw his property beyond the jurisdiction of the Court, in either of these cases the Judge may, upon an affidavit disclosing the circumstances under which the application is made, grant an Attachment against the goods, chattels and effects of the defendant.
No.3 (See form #3)
Process in the nature of a foreign attachment may also be issued by the Court whenever it shall be made to appear by Affidavit that the Defendant has property in the hands of some person, or persons, who may reasonably by suspected of an intention to withdraw the same beyond the jurisdiction of the Court.
No.4 (See form #4)
The attendance of witnesses may be enjoined by 'writ of subpoena', and should the writ be disobeyed, the party at whose instance is issued may maintain an action against the party who ought to have attended as a witness at the trial for the injury occasioned by his neglecting to do so; provided his reasonable expenses, for going to and returning from the trial were tendered to him at the time of serving the subpoena. But it is to be carefully remembered, that the witness is not bound to attend unless such tender of his reasonable expenses were made to him and consequently that his liability to an action depended entirely upon this fact.
Where the sum, or matters, at issue shall exceed fifty pounds sterling, or where the matter in dispute shall relate to the title of any lands, tenements, right of fishery, annual rent, or other matter where in the judgment of the Court, rights in future may be bound, the Clerk of the Court will carefully take down in writing the whole of the evidence adduced at the Trial of the Cause and enter the same in the record of the Court in order that a Transcript of the same may be certified to the Supreme Court in the event of an appeal. The practice of entering the evidence upon the record may also be useful to many cases which do not allow of an appeal; and the judge ought, therefore to direct it to be done whenever it shall appear to him that a reference to the evidence may hereafter become necessary to explain the nature of the proceeding or vindicate the propriety of the judgment.
If any material fact connected with the matter in dispute shall be entirely in the knowledge of one of the parties to the cause, so that it is impossible to establish if through any other medium of proof than the examination of the party himself, the Court may examine such party upon oath and thus endeavor to eviscerate the truth from him. But as the person who gives evidence under such circumstances may be placed under a strong temptation to causing perjury, the Court ought to be very cautious in allowing a party to become a witness in his own causes; and even in these cases where it may feel itself absolutely obliged to resort to this sort of testimony, it ought to require the party who is permitted to give evidence, to produce two or three credible witnesses who shall swear to their belief of the fact attested by the party agreeably to the practice observed under the old mode of Trial by Wager of Law. (see Black: C1[?] Vol 3, p.341[?])
No judgment by default should be given against a party unless upon the most clear and satisfactory evidence of the due service of the writ upon him or his accredited agent; or upon evidence equally strong and conclusive that his has withdrawn himself from the Labrador after the commencement of the suit, for the express purpose of preventing the service of the process.
And if a party against whom a judgment by default shall have been given will come into Court before the expiration of the 2nd day (Sunday not being considered as one) after such judgment shall have been given and swear that he believes he has a good defence to the action which he was prevented by circumstances beyond his control from urging before, the judge may set aside the judgment by default and proceed to by the case upon its merits precisely as he would have done if such judgment had not been given. But if no application to set aside the judgment by default shall be made to the Court within the time already specified, such judgment will become on the morning of the third day from the entry of it, absolute and final.
It is a well settled rule of law that no Court has a power 'to establish fees' (Bacon's abridgement Vol 2: p.464) and, as no fees have been granted to the officers of the Court of Civil Jurisdiction at the Labrador by the Act under which it is instituted, it seems to be certain that they can have no claim to any. The judge may, however, (I conceive) in taxing the costs of a suit, allow to the Bailiff or other officer by whom the process of the Court may have been served a small sum not as a fee but as a competent recompense for his trouble. The superior officers should be paid by salaries and ought not on any pretence whatever to receiving any thing beyond them.
As there will probably not be any gaol or other place of confinement under the orders of the Court it would be of no avail to issue process against the persons of defendants and accordingly a Fieri Facias [?] (see form #5) seems to be the only writ of execution it can make use of. If satisfaction cannot be obtained under it, the party in whose favour the judgment was given must resort to an action upon such judgment in the Supreme Court of Newfoundland.
St. John's 29th July 1826
(Signed) R.A. Tucker, Chief Judge of the Supreme Court of Newfoundland.