History of the government of the island of Newfoundland / With an appendix containing the Acts of Parliament made respecting the trade and fishery

by John Reeves

Preamble. His Majesty, under the great seal, may institute a court of criminal and civil jurisdiction at Newfoundland, &c.

For the better administration of justice in the island of Newfoundland, and the islands adjacent; be it enacted by the King’s most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, That it shall and may be lawful for his Majesty, by his commission under the great seal, to institute a court of criminal and civil jurisdiction, to be called, The supreme court of judicature of the island of Newfoundland, with full power and authority to hold plea of all crimes and misdemeanors committed within the island of Newfoundland, and on the islands and seas to which ships or vessels repair from the island of Newfoundland, for carrying on the fishery, and on the banks of Newfoundland, in the same manner as plea is holden of crimes and misdemeanors committed in that part of Great Britain called England, and also with full power and authority to hold plea, as herein-after mentioned, of all suits and complaints of a civil nature, arising within the island of Newfoundland, and on the islands and seas aforesaid, and on the banks of Newfoundland; which court shall determine such suits and complaints of a civil nature, according to the law of England, as far as the same can be applied to suits and complaints arising in the islands and places aforesaid; and the said court shall be a court of record, and shall be holden by a chief justice to be appointed by his Majesty, who shall have full power and authority to enquire of, hear, and determine all crimes and misdemeanours, suits, and complaints, cognizable in the said court; and such court shall have such clerks and ministerial officers as the chief justice shall think proper to appoint; and such salary shall be paid to the said chief justice, as his Majesty, his heirs and successors, shall approve and direct, and such salaries be paid to the clerks and ministerial officers aforesaid, as shall be approved by the chief justice, with the consent of the governor of the island of Newfoundland, which several salaries shall respectively be in lieu of all other profits and emoluments whatsoever.

The governor, with the advice of the chief justice, may institute surrogate courts, etc.

2. And be it further enacted, That it shall be lawful for the governor of the island of Newfoundland, with the advice of such chief justice, from time to time, to institute courts of civil jurisdiction, to be called surrogate courts, in different parts of the island of Newfoundland, and the islands aforesaid, as occasion shall require, with full power and authority to hear and determine, in the like summary way, all suits and complaints of a civil nature arising within the island of Newfoundland, and on the islands and seas aforesaid, and on the banks of Newfoundland; which courts shall respectively be courts of record, and shall determine according to the law of England, as far as the same can be applied to suits and complaints arising in the islands and places aforesaid; and the said courts respectively shall be holden by a surrogate, to be appointed from time to time by the governor of the said island, with the approbation of such chief justice, and shall have full power and authority to hear and determine all suits and complaints cognizable in the said court; and the said court shall have such clerks and ministerial officers, with such salaries as the chief justice shall appoint, which salaries shall be in lieu of all profits and emoluments whatever.

Mode of proceedings in the supreme and surrogate courts.

3. And be it further enacted, That it shall be lawful for the said supreme courts and surrogate courts respectively, when any suit or complaint shall be depending therein, to cause to appear from day to day, all persons interested in the matter in dispute, and to examine upon oath such of them as it shall be deemed proper, for better discovering the truth, and thereupon, and after due consideration of all circumstances, to make such order, judgement, or decree therein, and award such damages and costs, as the case shall require; and that in all cases where the cause of any suit or complaint shall not exceed five pounds, the party who is to answer such suit or complaint shall be made to appear in court by summons, and in all cases where such summons shall be disobeyed, or where the cause of any suit or complaint shall exceed five pounds, then that the party who is to answer such suit or complaint may be caused to appear by attachment of his or her goods, debts, or effects, or by arrest of the person, and that the execution of any order, judgement, or decree may be enforced by attachment of the goods, debts, or credits of the party, or by arrest of the person against whom such order, judgement, or decree shall be made; and that it shall and may be lawful for the said chief justice and surrogates respectively, to authorize some person in his or their absence respectively, to issue process, and do all acts appertaining to the said supreme court, and surrogate courts respectively, save and except the enquiring of, hearing, and determining of any crime or misdemeanor, or any suit or complaint of a civil nature.

In actions exceeding 10l. jurors may be summoned, but if a sufficient number should not appear, two assessors, with the chief justice or surrogate, may proceed to trial.

4. And be it further enacted by the authority aforesaid, That, where the cause of action shall exceed the sum of ten pounds, and it shall be prayed by the defendant in such suit or complaint, that a jury may be summoned to try such action, it shall be lawful for the said chief justice and surrogates respectively, and he and they are hereby respectively required to cause twenty-four persons to be summoned, of whom twelve shall be a jury for the trial of such action, and to proceed therein according to law: Provided always, That, if a number of jurors sufficient for the trial of such action having been duly summoned shall not appear to be sworn, it shall and may be lawful for the governor of the said island, and the surrogates in their several courts respectively, to nominate and appoint two proper persons to be assessors to the said chief justice, who, together with the said chief justice or surrogates respectively, shall proceed to the trial of such action, in like manner as if such jury had not been prayed.

Appeals may be made from judgements for sums exceeding 40l. in the surrogate court, and exceeding 100l. in the supreme court.

5. And be it further enacted, That upon any decree or judgement given in a surrogate court, for any sum exceeding forty pounds, it shall be lawful for the party against whom such decree or judgement shall be given, to appeal therefrom to the supreme court, having first given notice of such intention, and having entered into a security to the surrogate, in double the sum for which such judgement or decree was given or made, within two days after making or giving such judgement or decree, for duly prosecuting such appeal; and upon any decree or judgement given in the supreme court, for any sum exceeding one hundred pounds, it shall be lawful for the party, against whom such decree or judgement shall be given or made, to appeal therefrom to his Majesty in council, having first given notice of such intention, and having entered into security, to be approved by the chief justice, in double the sum for which such judgement or decree was given or made, within two days after the giving or making of such judgement or decree, for duly prosecuting such appeal; and in all cases of appeal, as soon as notice shall be given, and security entered into as aforesaid, execution shall be stayed, but not otherwise.