12 Vic. cap. et seq. WHEREAS, by an Act passed by the Parliament of this Province in the twelfth year of Her Majesty's reign (cap. 81), entitled, "An Act to provide by one general law for the erection of Municipal Corporations, and the establishment of Regulations of Police, in and for the several Counties, Cities, Towns, Townships and Villages in Upper Canada," power was given to Her Majesty's Court of Queen's Bench in Upper Canada, and the several Judges thereof, to try and decide all matters relating to contested Municipal Elections as therein provided; And whereas, by 81, sec. 146, the Act of the last session of Parliament (chapter 64), entitled, "An Act for correcting certain errors and omissions in the Act of the Parliament of this Province, passed in the last session thereof, entitled, 'An Aet to provide by one general law for the erection of Municipal Corporations, 16 Vic. cap. and the establishment of Regulations of Police, in and for the several Counties, Cities, Towns, Townships and Villages in Upper Canada,' for amending certain of the provisions of the said Act, and making some further provisions for the better accomplishment of the object thereof," the powers conferred on the said Court and Judges have been extended to the Court of Common Pleas and the Judges thereof, and additional powers have been thereby given in the premises to the said Courts and Judges respectively; and it being, among other things, in effect enacted, that it should and might be lawful for the Judges of Her Majesty's two Superior Courts of Common Law at Toronto, or the majority of them, by any rule or rules to be by them for that purpose made, from time to time in Term time, as occasion may require, to settle the forms of all such writs, 181, sec. 27. whether of summons, certiorari, mandamus, execution, or of or for whatever other kind or purpose, as are authorized by the said Act. Therefore, in order to settle the said forms, and to regulate the practice and proceedings in the said Courts in the matter aforesaid, IT IS ORDERED, that the following Rules be substituted for the Rules made in Hilary Term last, by the Judges of the said Court of Queen's Bench, for the trial of such elections; and that the forms of such writs, and the practice to be observed with respect to the matters aforesaid, shall be as follows, that is to say: 1. The relator entitled to complain of any election shall in person or by attorney, by written motion, apply to one of the said Courts of Queen's Bench or Common Pleas in Term time, or to the Judge presiding in Chambers in vacation, for a writ of summons in the nature of a quo warranto, which motion must, according to the statute, be made within six weeks after the election complained against, or within one month after the person whose election is questioned shall have accepted the office, and not afterwards. 2. Such motion shall be founded, first, on a written statement, which shall be annexed to the motion paper, setting forth the interest which the relator has in the election, as candidate or voter, and setting forth also specifically, under distinct heads separately numbered (if there be more than one), all such grounds of objection as he intends to urge against the validity of the election complained against, and in favour of the validity of the election of the relator or another or other person or persons, when he shall claim that he or they or any of them have been duly elected; and at the foot of such statement there shall be an affidavit, made and signed by the relator, that he believes such grounds to be well founded: and, secondly, on an affidavit or affidavits of the relator, or other person or persons, setting forth fully and in detail the facts and circumstances which shall support the application. The statement of the relator may be after the following form, mutatis mutandis: STATEMENT OF THE RELATOR. IN THE QUEEN'S BENCH (or COMMON PLEAS). The statement and relation of that of who, complaining of (here inserting the names and additions of all, if more than one person), hath (or have) not been duly elected, and hath (or have) unjustly usurped and still doth (or do) usurp the office of in the Town of (or Township of as the case may be), in the County (or United Counties) of under the pretence of an election held on ——, at -, in the said County (or United Counties) [and (when it is claimed that the relator, or the relator and another, or others, ought to have been returned) that (here name the party or parties so entitled) was (or were) duly elected thereto, and ought to have been returned at such election], and declaring that he the said relator hath an interest in the said election as a states and shows the following causes why the election of the said to the said office should be declared invalid and void. [And (when so claimed) the said (naming the party or parties) be duly elected thereto.] First-That (for example) the said election was not conducted according to law, in this, that, &c. Second-That the said returned, in this, that, &c. Third-That, &c. was not duly or legally elected or Signed by the relator in person, or by C. D. his attorney. NOTE. Where the intention of the relator is to impeach the election as altogether void, in which event, as the office cannot be claimed for any other or others, the portion of the above and succeeding forms relating thereto should be omitted. 3. If the Court or Judge applied to shall find sufficient ground for issuing a writ of summons in the nature of a quo warranto, then, upon such recognizance being entered into as the Act directs, and a proper affidavit of justification made, and the sufficiency of the sureties allowed by such Court or Judge, a writ shall issue, sealed and tested as other writs of summons in cases between party and party, and attached thereto shall be a copy of the relator's statement of objections and grounds, and of the names and additions of the persons who shall have made the affidavits upon which the writ was moved. The recognizance and fiat for summons, and the writ of summons in these Rules mentioned, may be in the following forms: FORM OF RECOGNIZANCE. IN THE QUEEN'S BENCH (or COMMON PLEAS). UPPER CANADA, County (or United Counties) of bered, that on the day of thousand eight hundred and of Be it remem. in the year of our Lord one before me, of and - of Chief Justice (or a Justice, or a Commissioner for taking bail) in Her Majesty's Court of Queen's Bench (or Common Pleas) for Upper Canada, cometh and acknowledge themselves severally and respectively to owe to - of (here inserting the name or names of the person whose election is complained against), as follows, that is to say, the said, the sum of fifty pounds, and the said and the sum of twenty five pounds each, upon condition that if the said do prosecute with effect the writ of summens in the nature of a quo warranto to be issued on an order or fiat to be made at the instance and upon the relation of the said against the said to show by what authority he (or they) the said claims (or claim) to be (here state the office so claimed), and why he (or they) the said should not be removed therefrom [and (where so claimed by the relator) why he the said relator (or the party or parties entitled) should not be declared duly elected, and be admitted to the said office]; and if the said do pay to the said all such costs as the said Court of (or the Judge presiding in Chambers, at the City of Toronto, in the County of York) shall direct in that behalf, then this recognizance to be void, otherwise to remain in full force. Taken and acknowledged the day and year first above mentioned, Before me, FORM OF A JUDGE'S FIAT ORDERING A WRIT TO ISSUE IN VACATION. of IN THE QUEEN'S BENCH( or COMMON PLEAS). Upon reading the statement of - of in the County of complaining of the undue election and usurpation of the office by [and (if so, stating) that the said (relator or other person named) was (or were) duly elected, and ought to have been returned to the said office], and upon reading the affidavits filed in support of the said statement, and also upon reading the recognizance of the said and sureties therein named, and the same being allowed as sufficient, I do order that a writ of summons do issue, calling upon the said -(the party whose election is complained of) to show by what authority he (or they) the said (the party whose election is complained of) now exercises or enjoys (or exercise and enjoy) the said office [and why (if so claimed) he (or they) the said should not be removed therefrom, and the said - (relator or other person or persons named) should not be declared duly elected, and be admitted thereto]. NOTE.-If by Rule of Court, the above form should be modified accordingly. FORM OF WRIT OF SUMMONS. UPPER CANADA. VICTORIA, by the Grace of God, &c. To, of, &c., in the County (or United Counties) of We command you (and each of you) that you (and each of you) be and appear before the Chief Justice or other Justice of our Court of Queen's Bench (or Common Pleas) for Upper Canada, presiding in Chambers, at the Judges' Chambers in our City of Toronto, on the eighth day after the day on which you shall be served with this writ, then and there to answer and show to such Chief Justice or Justice by what authority you claim to use, exercise or enjoy the office of which office, upon the relation of - -, having, as he says, an interest in the election to the said office as a we are informed that you have usurped and do still usurp [and that (if 80 claimed) the said (relator or party or parties mentioned) was (or were) and should have been declared duly elected and admitted thereto], and further to do and receive all those things which our said Chief Justice or Justice shall thereupon order concerning the premises. Witness the Honourable - Chief Justice of our said Court of (or other Justice in whose name the writ is tested), at Toronto, this day of 18, and in the year of our reign. FORM OF NOTICE TO BE ENDORSED ON OR ANNEXED TO THE WRIT OF SUMMONS. IN THE QUEEN'S BENCH (or COMMON PLEAS). The Queen, upon the relation of against To and, named in the within (or annexed) writ of sum mons. The within (or annexed) writ of summons has been issued at my instance and relation; and a statement concerning the premises, whereof a copy is hereunto annexed, is filed in the office of the Clerk of the Crown in this Court (or with the Clerk in Chambers at the City of Toronto), together with affidavits supporting the same; and the names and additions of the deponents to the said affidavits are hereunder written. And you are served with the said writ of summons to the intent that you do appear and answer as therein commanded, or otherwise judgment will be given against you by your default, and your election to the therein mentioned office will be declared invalid, and you will be removed therefrom [and the said (the relator, or ——, the party or parties, if any, alleged to be entitled) therein named, be declared duly elected and will be admitted thereto in your place]. A. B. in person, or by C. D., his Attorney. The above mentioned deponents are: of of MINUTE OF THE DAY OF SERVICE TO BE WRITTEN ON THE 4. A copy of such summons, and of the paper attached thereto, with a notice on the back of the copy of summons, according to the foregoing form, may be served by any literate person, who shall, within twenty-four hours after such service, make a minute on the writ of the time of serving the same; and upon the return of the writ, the party or parties summoned may appear either in person or by attor ney; and the manner of appearance shall be by endorsing |