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St. John's, Newfoundland and Labrador, Canada

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Revised Statutes of Newfoundland 1990


CHAPTER J-4

AN ACT RESPECTING THE SUPREME COURT AND PROCEDURE IN THAT COURT

Analysis

1. Short title

2. Definitions

3. Jurisdiction continued

PART 1
THE COURT OF APPEAL

4. Court of Appeal

5. Appellate jurisdiction

6. Jurisdiction generally

7. Quorum

8. Judge ceases to hold office

9. Transfer of judge

10. Single judge

11. Ineligibility of judge

12. Title of documents

13. Reference

14. Certification of opinion

15. Notice to Attorneys General

16. Reference under agreement

17. Notice to interested persons

18. Appointment of counsel

19. Evidence

20. Procedure

PART II
THE TRIAL DIVISION

21. Trial Division

22. Judicial centres

23. Jurisdiction

24. Single judge

25. Same judge

26. Sitting apart

27. Jurisdiction of judges

28. Title of documents

29. Substitution of judge

30. Transfer of judge

31. Retired judge's reserved decision

32. Rehearing of decision

33. Sitting of Trial Division

34. Appeals to Trial Division

35. Effect of verdict

36. Legal and equitable issues

37. No appeal in certain cases

38. New trials

39. Forfeiture of recognizances

40. Recognizance made before J.P.

41. Submission of matter to jury

42. Enforcement of penalty

43. Payment of penalties

PART III
THE SUPREME COURT GENERALLY

44. Coat of arms

45. Seals

46. Oaths

47. Supernumerary judges

48. Precedence of judges

49. Powers of the Chief Justices

50. Vacancy

51. Judges

52. Transfer of proceeding

53. Costs

54. Rules committees

55. Rules

56. Where procedure not provided for

57. Constitutional questions

58. Council of judges

59. Conferences

PART IV
OFFICERS OF THE
SUPREME COURT

60. Clerks

61. Registrar and associate registrar

62. Duties of clerks

63. Duties of registrar

64. Distribution of proceedings

65. Execution by registrar

66. Discharge of liability of registrar

67. Registrar's accounts

68. Registrar's fees, etc.

69. Unclaimed money

70. Saving

71. Consolidated trust funds

72. Special reserve fund

73. Authorized investments

74. Trust and estate officers

75. Court reporters

76. Tipstaffs and criers

77. Masters and taxing officers

78. Commissioners within the province

79. Commissioners outside the province

80. Fees of commissioners

81. Sheriff of Newfoundland

82. Sheriff's fees, etc.

83. Sub-sheriffs and bailiffs

84. Deputy sheriffs

85. Oaths

86. Security

87. Duties, powers, etc.

88. Appointments generally

89. Officers of the court

PART V
RULES OF LAW

90. Interpretation

91. Equitable relief

92. Equitable relief

93. Equitable and legal relief

94. Joined defendant

95. Equitable estates

96. Prohibition and injunction

97. Stay of proceedings

98. Recognition of common law

99. Avoidance of multiplicity of actions

100. Equitable waste

101. Merger by operation of law

102. Right of mortgagor

103. Assignment of debts

104. Stipulations as to time

105. Mandamus or injunction

106. Custody questions

107. Equity prevails

PART VI
PROBATE AND
ADMINISTRATION

108. Definitions

109. Central registry

110. Application

111. Form

112. Inventory and valuation

113. Certificate from registry

114. Caveat

115. Where caveat or objection

116. Proof in solemn form

117. Other proof

118. Production of testamentary document

119. Discretion as to grant

120. Security

121. Appointment of administrator pending action

122. Effect of grant

123. Removal of executor

124. Not a sole executor

125. Executor of appointed executor

126. Executor absent from province

127. Renunciation by executor

128. Good faith payments

129. Filing of accounts

130. Proof of debts

131. Notification of certain creditors

132. Resealing of foreign grants

PART VII
ATTACHMENT,
EXECUTION AND
DISTRAINT

133. Definitions

134. No arrest

135. Goods, etc. to abide order

136. Good faith purchaser

137. Particulars of rent

138. Sheriff

139. Distress of goods

140. Exemptions from attachment

PART VIII
TRANSITIONAL AND CONSEQUENTIAL
PROVISIONS

141. References to Court of Appeal

142. Continuation of proceedings

143. Documents under former style of cause

144. Reference to Trial Division

145. Continuation of proceedings

146. Cases referred back on appeal

147. Documents under former style of cause

148. Continuation of proceedings

149. Cases referred back on appeal

150. Documents under former style of cause


Short title

1. This Act may be cited as the Judicature Act.

1986 c42 s1

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Definitions

2. In this Act

(a) "affidavit" includes a solemn declaration, or statutory declaration, and an agreed statement of facts;

(b) "central registry" means the principal office of the registrar at St. John's;

(c) "court" means,

(i) in the Court of Appeal, the court or a judge or the judges of the court, whether sitting in court or chambers, and

(ii) in the Trial Division, the court or a judge or the judges of the court, whether sitting in court or chambers;

(d) "court of appeal" means the appeal division of the Supreme Court of Newfoundland;

(e) "decision" means the reasons given by the court for its judgment or other order;

(f) "defendant" means a person served with an originating document, or served with notice of or entitled to attend a proceeding but does not include a respondent;

(g) "judge" means a judge of the Court of Appeal or the Trial Division as the circumstances may require and includes a judge sitting in chambers;

(h) "judicial centre" means a judicial centre of the Trial Division continued under this Act;

(i) "master" means a Master of the Supreme Court or a person who may be appointed by the court or a judge to so act;

(j) "minister" means the Minister of Justice;

(k) "oath" includes solemn affirmation and statutory declaration;

(l) "order" means an order of the court and includes a judgment, decree or ruling;

(m) "party" means a person served with notice of, or entitled to attend a proceeding, even if that person is not named in the record;

(n) "petitioner" includes a person making an application to the Supreme Court, other than as against a defendant;

(o) "plaintiff" means a person asking relief against another person by a form of proceeding, other than by counterclaim as a defendant but does not include a petitioner;

(p) "proceeding" means a civil or criminal action, suit, cause or matter, or an interlocutory application, including a proceeding formerly started by a writ of summons, 3rd party notice, counterclaim, petition, originating summons, originating motion or in another manner;

(q) "reference" means a reference to the Court of Appeal under section 13;

(r) "registrar" means the Registrar of the Supreme Court;

(s) "registry" means the office of the registrar in each judicial centre as well as the office of the registrar in the Court of Appeal;

(t) "rules" means

(i) the Rules of the Supreme Court of Newfoundland, 1986 and includes the forms in those rules, and

(ii) the Rules of the Supreme Court of Newfoundland made under section 55 that replace, amend or revoke the rules and forms;

(u) "Supreme Court" means the Supreme Court of Newfoundland referred to in section 3, and where the subject or context requires, the Court of Appeal or the Trial Division; and

(v) "Trial Division" means the Trial Division of the Supreme Court.

1986 c42 s2; 1990 c62 s16

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Jurisdiction continued

3. (1) The Supreme Court of Newfoundland is continued under this Act and shall have all civil and criminal jurisdiction conferred upon the Supreme Court of Newfoundland

(a) by the Imperial Statute passed in the 5th year of the reign of His late Majesty King George the 4th, entitled "An Act for the better administration of justice in Newfoundland, and for other purposes";

(b) by the Royal Charter or Letters Patent under the Great Seal, issued by virtue of the Imperial Statute, dated September 19th, 1825, in the 6th year of His late Majesty's reign; and

(c) by a law in force in the province.

(2) The Supreme Court of Newfoundland shall continue to be composed of

(a) an appeal division, to be called the Court of Appeal; and

(b) a Trial Division.

1986 c42 s3

PART I
THE COURT OF APPEAL

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Court of Appeal

4. (1) The Court of Appeal consists of 6 judges, 1 being a chief justice, who shall be called Chief Justice of Newfoundland, and 5 other judges, who shall be called Judges of Appeal.

(2) Subject to the rules, the Court of Appeal shall sit in the City of St. John's and may sit in other locations within the province at the places and times that the court requires.

(3) Each judge of the Court of Appeal shall maintain his or her principal residence in the City of St. John's or within an area of 50 kilometres by road from that city.

1986 c42 ss4&156

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Appellate jurisdiction

5. (1) An appeal lies to the Court of Appeal

(a) from an order of the Trial Division or an order of a judge of the Trial Division; and

(b) in a proceeding where jurisdiction is given to it under an Act of the Legislature or the Parliament of Canada.

(2) Where another Act of the Legislature or the Parliament of Canada provides that there is no appeal, or a limited right of appeal, from an order referred to in subsection (1), that Act prevails.

(3) The Court of Appeal shall have and exercise appellate jurisdiction, with the original jurisdiction that may be necessary or incidental to the determining of an appeal, with appellate jurisdiction in civil and criminal proceedings, and jurisdiction and power to hear and determine appeals respecting an order or decision of a judge of the Trial Division.

1986 c42 s5

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Jurisdiction generally

6. For the hearing and determination of a proceeding within its jurisdiction, and the amendment, execution and enforcement of an order, and for the purpose of every other authority expressly or implicitly given to the Court of Appeal, by this Act or another Act of the Legislature or the Parliament of Canada, the Court of Appeal has the power, authority and jurisdiction vested in the Court of Appeal of the Supreme Court of Newfoundland as it existed before September 2, 1986.

1986 c42 s6

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Quorum

7. (1) Three of the judges of the Court of Appeal constitute a quorum of the court for the purpose of hearing an appeal at a sitting of the court.

(2) The decision of the majority of the Court of Appeal sitting as a quorum is the order of the court.

(3) The death, withdrawal, resignation, removal or inability to act of a judge after the beginning of a hearing shall not affect the jurisdiction of the court if the appeal or application is finally disposed of by not fewer than 2 judges, in which case their decision shall have the same effect as if made by the whole court.

(4) It is not necessary for all the judges who have heard the argument in a case to be present in order to constitute the court for making the decision in that case; and where a judge who has heard the argument is not present at the time when the decision is delivered, the decision may be announced or read by 1 of the other judges, and shall have the same effect as if the judge were present.

1986 c42 s7

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Judge ceases to hold office

8. Notwithstanding section 7, where the argument in a proceeding has been heard before a judge as 1 of a panel of judges and the judge is appointed to another court or for another reason ceases to hold office, that judge may within 6 months of ceasing to hold office make a decision or an order in that proceeding.

1986 c42 s8

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Transfer of judge

9. Where a judge of the Court of Appeal is unable to sit or take part in consequence of section 11, or from illness or other reason, or in case of a vacancy in the court, the Chief Justice of the Trial Division shall upon the request of the Chief Justice of Newfoundland appoint a judge of the Trial Division to sit and act in the place of the other judge, or in the place of a judge whose office has become vacant, and it is the duty of a judge so appointed to attend and, while so sitting and acting, that judge has all the jurisdiction, power and authority of a judge of the Court of Appeal.

1986 c42 s9

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Single judge

10. In a proceeding pending in the Court of Appeal, an application incidental to it, not including the final determination of the appeal, may be heard and disposed of by a single judge of the court.

1986 c42 s10

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Ineligibility of judge

11. A judge is ineligible to sit on the hearing of an appeal from a decision or order made by that judge.

1986 c42 s11

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Title of documents

12. All documents, affidavits, notices and other papers and documents issued out of, or used in, the Court of Appeal are to be entitled "In the Supreme Court of Newfoundland, Court of Appeal".

1986 c42 s12

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Reference

13. The Lieutenant-Governor in Council may refer a matter to the Court of Appeal and upon the reference the Court of Appeal shall hear and determine that matter.

1986 c42 s13

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Certification of opinion

14. (1) The Court of Appeal shall certify its opinion on a reference to the Lieutenant-Governor in Council together with its decision.

(2) The decision given under subsection (1) shall be given in the same manner as if it were an order of the court given in an ordinary proceeding.

(3) A judge who differs from the decision of the majority on a reference shall also certify his or her decision.

(4) The decision of the Court of Appeal on a reference is considered to be an order of the Court of Appeal and an appeal lies from a decision on a reference as from a judgment in a proceeding.

1986 c42 s14; 1988 c54 s14

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Notice to Attorneys General

15. Where a reference relates to the constitutionality of an Act or a provision of an Act, the Attorney General of Canada and the Attorney General of each province shall be notified of the hearing in order that they may be heard.

1986 c42 s15

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Reference under agreement

16. (1) Where a reference relates to matters arising under an agreement entered into between the Government of Canada and the government of the province that provides for a reference to the Court of Appeal, the Attorney General of Canada and the Attorney General of another province that has entered into a similar agreement may appear before the Court of Appeal and be heard as a party to the hearing of the reference.

(2) The form, terms and other matters relating to a reference under subsection (1) shall be as set out in the agreement, and in the absence of such provision shall be as the parties to the agreement agree.

(3) If the parties have not provided for the form, terms and other matters relating to the reference, or have not agreed to them, they shall be determined by the Chief Justice of Newfoundland, or in the absence or a vacancy in that position, by the senior judge of the Court of Appeal.

1986 c42 s16

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Notice to interested persons

17. The Court of Appeal may direct that a person interested, or a person representing a class that is interested, shall be notified of a reference and upon the notification the person shall be heard on the hearing of the reference.

1986 c42 s17

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Appointment of counsel

18. Where a person or class of persons affected by a reference are not represented by counsel, the court may appoint counsel to represent the person or class and the reasonable expenses occasioned shall be paid by the Minister of Finance out of the Consolidated Revenue Fund.

1986 c42 s18

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Evidence

19. The Court of Appeal may have the evidence taken that it requires upon a matter raised in a reference if provision is made in the reference for the taking of the evidence.

1986 c42 s19

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Procedure

20. The Court of Appeal may determine the procedure in a reference but in the absence of a determination the procedure shall be governed by the rules of procedure of the Supreme Court of Canada upon references to that court.

1986 c42 s20

PART II
THE TRIAL DIVISION

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Trial Division

21. The Trial Division consists of 19 judges, 1 being a chief justice, who shall be called Chief Justice of the Trial Division, and 18 other judges, who shall be called judges of the Trial Division.

1986 c42 s21

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Judicial centres

22. (1) Except as may be otherwise provided by order of the Lieutenant-Governor in Council, each of the following places shall be a judicial centre: Brigus, Corner Brook, Gander, Grand Bank, Grand Falls, Happy Valley-Goose Bay and St. John's.

(2) Each judge appointed to the Trial Division shall live and serve in the judicial centre that may be approved by the Lieutenant-Governor in Council upon the judge's appointment and shall not be transferred to live and serve in another judicial centre without his or her consent.

(3) Each judge of the Trial Division shall maintain his or her principal residence within an area of 50 kilometres by road from the judicial centre to which that judge has been appointed.

1986 c42 s22

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Jurisdiction

23. The Trial Division has jurisdiction over all civil and criminal proceedings that were within the jurisdiction of the Trial Division of the Supreme Court of Newfoundland immediately before September 2, 1986, including all civil and criminal proceedings pending in the Trial Division of the Supreme Court of Newfoundland before September 2, 1986.

1986 c42 s23

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Single judge

24. Except where otherwise expressly provided by an Act, a proceeding in the Trial Division and all proceedings arising from that proceeding shall, where practicable and convenient, be heard, determined and disposed of before a single judge.

1986 c42 s24

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Same judge

25. All proceedings after the hearing or trial including the final order, with the exception of proceedings on appeal or by application for a new trial, shall, where practicable and convenient, be taken before the judge before whom the trial or hearing of the proceeding took place.

1986 c42 s25

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Sitting apart

26. The judges of the Trial Division may sit separately and apart from the other judges at the same time to hear and determine a proceeding that may be heard by 1 or more judges, and the rising of 1 or more of the judges does not affect the right of the other judges to continue to sit.

1986 c42 s26

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Jurisdiction of judges

27. (1) Subject to the rules, each judge of the Trial Division may exercise the jurisdiction of the Supreme Court that might have been exercised in court or in chambers by a single judge before September 2, 1986, or as may be directed or authorized to be heard by the rules.

(2) A judge sitting pursuant to subsection (1) is considered to constitute the Trial Division.

1986 c42 s27

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Title of documents

28. All originating applications, documents, notices and other papers issued out of or used in the Trial Division are to be entitled "In the Supreme Court of Newfoundland, Trial Division".

1986 c42 s28

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Substitution of judge

29. (1) Where a judge is absent, ill, or the office has become vacant, or where there is some other cause, and it is urgent to do so, another judge may sit for that judge to hear or dispose of a proceeding heard in part by that judge.

(2) Evidence that has been heard by a judge before the substitution of that judge under subsection (1) may be used by the judge who sits pursuant to subsection (1).

1986 c42 s29

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Transfer of judge

30. (1) Where, in a proceeding, there is no judge of the Trial Division who is able or eligible to sit or it is desirable for good reason that no judge of the Trial Division should sit, the Chief Justice of the Trial Division may request the Chief Justice of Newfoundland to appoint 1 of the judges of the Court of Appeal to sit and act as a judge of the Trial Division for the hearing of the proceeding.

(2) A judge appointed under subsection (1) shall attend at the hearing of the proceeding to which that judge has been appointed and while that judge sits and acts the judge has all the jurisdiction, power and authority of a judge of the Trial Division.

1986 c42 s30

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Retired judge's reserved decision

31. (1) When a judge has reserved a decision in a proceeding and retires, resigns, or is appointed to another court, that judge may, within 6 months after the retirement, resignation or appointment, give his or her decision as if that judge were still a judge.

(2) A decision given under subsection (1) is of the same effect as if the judge had not retired, resigned or been appointed to another court.

1986 c42 s31

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Rehearing of decision

32. (1) When a judge who has reserved a decision in a proceeding

(a) dies without giving a decision;

(b) retires, resigns or is appointed to another court without having given the decision within the time set out in section 31; or

(c) does not give the decision within 12 months from the time it was reserved by that judge,

a judge of the Trial Division may upon application order that the proceeding be retried or reheard by another judge.

(2) Upon the retrial or rehearing under subsection (1), the judge retrying or rehearing the proceeding may direct that the retrial or rehearing

(a) be upon a transcript of the court reporter's notes;

(b) be upon that transcript and additional evidence given orally or by affidavit;

(c) be upon that transcript and additional evidence given orally and by affidavit;

(d) be upon new evidence; or

(e) otherwise.

(3) The judge presiding at the retrial or rehearing may give direction as to the disposition of the costs of the original trial or hearing and the cost of obtaining and providing copies of the transcript of the court reporter's notes.

1986 c42 s32

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Sitting of Trial Division

33. (1) The judges of the Trial Division may sit and act anywhere in the province in order to

(a) transact a part of the business of the Trial Division; or

(b) discharge a duty that the Trial Division is required to discharge.

(2) Rules may be made prescribing the times and locations where the Trial Division may ordinarily sit.

1986 c42 s33

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Appeals to Trial Division

34. (1) On an appeal from a tribunal or a court of inferior jurisdiction and upon the removal of a proceeding in which evidence has been taken to the Trial Division, the Trial Division

(a) may direct the rehearing of witnesses, the retaking of evidence, or the taking of further and other evidence by the court or tribunal;

(b) may require the report of all evidence taken by the court or tribunal;

(c) may require the production and examination of a witness already examined or of persons who have not been already examined; and

(d) may refer the proceeding back to the court or tribunal for further consideration in whole or in part.

(2) In giving a decision or judgment upon an appeal from a court of inferior jurisdiction or a tribunal, the Trial Division

(a) may dismiss the appeal;

(b) may confirm or reverse the decision of the court or tribunal;

(c) may alter, amend or modify the decision;

(d) may make an order that appears to be just; and

(e) may make orders as to costs.

1986 c42 s34

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Effect of verdict

35. The verdict or finding of the judge who tries an issue or assesses damage has the same effect as the findings of a jury.

1986 c42 s35

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Legal and equitable issues

36. In a proceeding where both legal and equitable issues are raised they shall be heard and tried at the same time unless the court otherwise directs.

1986 c42 s36

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No appeal in certain cases

37. An order made by a judge by consent of the parties, or as to costs only, is not subject to appeal, except by leave of the judge who has made the order.

1986 c42 s37

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New trials

38. (1) A new trial of a proceeding that has been tried by a judge without a jury may be finally disposed of as to damages as well as other matters, upon the evidence already taken, with or without further evidence or re-examination, and without the necessity of having the proceeding tried again.

(2) With the consent of the parties, a new trial of a proceeding that has been tried by a jury may be dealt with in the manner set out in subsection (1).

1986 c42 s38

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Forfeiture of recognizances

39. (1) Where a recognizance returned to or given to the court is forfeited by breach of a condition the court may, by an interim ruling

(a) made upon sufficient affidavits showing the execution and forfeiture of the recognizance; and

(b) served upon the parties executing the recognizance that may be within the jurisdiction of the court,

require the parties to show cause why the recognizance should not be declared to be forfeited and the amount of the penalty contained in it be forfeited.

(2) Upon hearing the parties executing the recognizance, or those of them that appear at the hearing, or in default of the appearance of the parties, the court

(a) may order the recognizance forfeited and the payment of the penalty into the court by the parties liable; or

(b) may discharge the interim ruling made under subsection (1).

(3) Notwithstanding subsection (2), the court may lessen or forgive the amount of a penalty ordered to be paid under that subsection.

1986 c42 s39

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Recognizance made before J.P.

40. (1) Where a recognizance for the doing or not doing of a matter or thing made to a justice of the peace, other than the appearance of a person before the court, is forfeited, that justice of the peace or, in the case of the death or incapacity of that justice of the peace, another justice of the peace shall, whenever that justice of the peace is requested to do so by a person seeking to enforce the recognizance, make a return of the recognizance and of its forfeiture signed by him or her in the form set out in the rules.

(2) Where a return is made under subsection (1), section 42 applies.

1986 c42 s40

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Submission of matter to jury

41. (1) The court may, in a case where a recognizance is conditioned on the performance of an act not to be done in, before, or to the court, submit a matter in controversy on an interim ruling to a jury for its determination in the same manner as if the matter had come before the court upon a special case.

(2) Following the determination of the jury under subsection (1), an order shall be made by the court under section 39.

1986 c42 s41

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Enforcement of penalty

42. An order for the payment of a penalty under section 39 may be enforced by the court by process of contempt under the rules.

1986 c42 s42

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Payment of penalties

43. An amount paid into the court under sections 39 and 42 shall be paid by the court into the Consolidated Revenue Fund.

1986 c42 s43

PART III
THE SUPREME COURT GENERALLY

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Coat of arms

44. The coat of arms of the Supreme Court shall be the Royal Arms as displayed in the court houses of the Court of Appeal and the Trial Division.

1986 c42 s44

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Seals

45. (1) The judges of the Court of Appeal and the Trial Division may establish the seals to be used by the Court of Appeal and the Trial Division to certify and authenticate the proceedings of those courts.

(2) Until the seals are established under subsection (1), the seals presently in use by the Court of Appeal and the Trial Division shall continue to be used.

(3) The seal of the Court of Appeal shall be kept at the registry of that court.

(4) The seal of the Trial Division shall be kept at the central registry and a duplicate of that seal shall be kept at the registry in each judicial centre.

1986 c42 s45

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Oaths

46. (1) The Chief Justice of Newfoundland, the Chief Justice of the Trial Division and every other judge of the Court of Appeal and the Trial Division shall, before entering upon the duties of the office of judge, take and sign the Oath of Allegiance and the Judicial Oath referred to in the Oaths of Office Act.

(2) The oaths referred to in subsection (1) shall be administered by a judge.

1986 c42 s46

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Supernumerary judges

47. (1) For each office of judge established under sections 4 and 21, there is an additional office of supernumerary judge, which a judge of the Court of Appeal and the Trial Division may elect to hold upon compliance with the Judges Act (Canada) and upon meeting the qualifications required under that Act.

(2) A judge who elects to hold the office of supernumerary judge is to be called a judge of the Court of Appeal or a judge of the Trial Division in accordance with the division of the court to which the judge is appointed at the time of his or her election.

(3) Subsection 4(3) and subsection 22(4) do not apply to a judge who elects to hold the office of supernumerary judge.

1986 c42 s47

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Precedence of judges

48. (1) The judges of the Supreme Court have rank, precedence and seniority in the following order:

(a) the Chief Justice of Newfoundland;

(b) the Chief Justice of the Trial Division;

(c) the judges of the Court of Appeal in the order of their seniority of appointment to that court; and

(d) the judges of the Trial Division in the order of their seniority of appointment to that court.

(2) Notwithstanding subsection (1), District Court judges elevated to the Trial Division on September 2, 1986 have rank and precedence after the judges of the Trial Division holding office on September 2, 1986, and among themselves according to seniority of their appointments as District Court judges but the Chief Judge of the District Court on September 2, 1986 shall, notwithstanding the date of his or her appointment, take rank and precedence immediately after the other judges of the Trial Division who were appointed before September 2, 1986.

1986 c42 s48

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Powers of the Chief Justices

49. Where the Chief Justice of Newfoundland or the Chief Justice of the Trial Division

(a) is absent from the province;

(b) is unable to act; or

(c) requests it,

his or her powers shall be exercised by the next senior judge of the respective court who is able to act in the place of the Chief Justice of Newfoundland, or the Chief Justice of the Trial Division.

1986 c42 s49

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Vacancy

50. A vacancy in the Supreme Court does not impair the Supreme Court in the exercise of the powers of the court.

1986 c42 s50

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Judges

51. A judge of the Court of Appeal or the Trial Division is by virtue of the office a judge of the other court to which that judge has been appointed under section 9 or 30 for the purpose of hearing a proceeding and while so acting has in all respects equal jurisdiction, power and authority.

1986 c42 s51

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Transfer of proceeding

52. (1) If a proceeding has been started

(a) in the Court of Appeal where it ought not to have been started; or

(b) in the Trial Division where it ought not to have been started,

a judge of the respective court may direct that proceeding be transferred to the appropriate court.

(2) All proceedings taken by a party that have been transferred under subsection (1), and all orders made before the transfer, are considered to be as valid as if they had been taken and made in the court in which the proceedings ought to have been started.

1986 c42 s52

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Costs

53. (1) Subject to the rules and the express provisions of another Act, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, are in the discretion of the court.

(2) The court may determine by whom and to what extent costs awarded under subsection (1) shall be paid.

(3) Costs may be awarded to and against the Crown.

1986 c42 s53

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Rules committees

54. (1) There is continued

(a) a rules committee of the Court of Appeal consisting of

(i) the Chief Justice of Newfoundland who shall be the chairperson,

(ii) the other judges of the Court of Appeal,

(iii) the Chief Justice of the Trial Division, or the nominee of the Chief Justice from among the judges of the Trial Division,

(iv) the registrar,

(v) 2 members of the Law Society of Newfoundland appointed by the benchers of that society, and

(vi) the minister or the nominee of the minister; and

(b) a rules committee of the Trial Division consisting of

(i) the Chief Justice of the Trial Division who shall be chairperson,

(ii) the Chief Justice of Newfoundland, or the nominee of the chief justice from among the judges of the Court of Appeal,

(iii) 4 judges of the Trial Division designated by the Chief Justice of the Trial Division,

(iv) the registrar,

(v) 2 members of the Law Society of Newfoundland appointed by the benchers of that society, and

(vi) the minister or the nominee of the minister.

(2) Each rules committee shall meet at least once yearly at the call of the chairperson and at other times upon the request of 3 members of each rules committee made in writing to the chairperson.

1986 c42 s54

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Rules

55. (1) Each rules committee may make rules

(a) regulating the sittings of the court and the sittings of the judges in chambers;

(b) regulating the payment, transfer and deposit of money or property into or out of the court;

(c) regulating the procedure of the court in exercising the jurisdiction of the court conferred by another Act or regulation;

(d) regulating the means by which particular facts may be proved and the method in which evidence may be given on an application in a proceeding relating to the distribution of a fund or property, whether in the court or not;

(e) respecting the physical or mental examination of a party where the physical or mental condition of a party is an issue in the proceeding;

(f) respecting the hearing of appeals and all proceedings relating to or brought up by certiorari orders from Provincial Court judges or justices of the peace;

(g) governing the pleading, practice and procedure of probate and administration under Part VI;

(h) providing for the service of documents out of the jurisdiction of the court;

(i) respecting the duties of the officers and clerks of the court;

(j) respecting the costs of proceedings in the court; and

(k) governing the pleading, practice and procedure generally of the Court of Appeal or the Trial Division.

(2) The Lieutenant-Governor in Council may make rules fixing the scale of fees to be taken by the registrar, the high sheriff, sub-sheriffs, deputy sheriffs, bailiffs or process servers.

(3) Each rules committee may make rules fixing the scale of fees to be taken by barristers and others for proceedings in the court not included in subsection (2).

(4) Rules made under this section are subordinate legislation for the purposes of the Statutes and Subordinate Legislation Act.

1986 c42 s55; 1990 c14 s1

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Where procedure not provided for

56. (1) In cases not provided for in this Act, the rules or by the provisions of another Act that are not inconsistent with this Act, the pleading, practice and procedure of the High Court of Justice in England are, where applicable, the pleading, practice and procedure of the Supreme Court.

(2) Where the practice and procedure in a particular proceeding cannot be ascertained, the court may adopt the practice and procedure that is necessary to permit the proceeding to continue.

1986 c42 s56

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Constitutional questions

57. (1) Where in a proceeding the constitutional validity of an Act or regulation of the Parliament of Canada or of the Legislature is brought into question, it shall not be heard until notice has been given to the Attorney General for Canada and to the Attorney General for the province.

(2) The notice shall state what Act, regulation or part of an Act or regulation is in question and the day on which the question is to be argued, and shall give other particulars that are necessary to show the constitutional point proposed to be argued.

(3) Subject to the rules, the notice shall be served 10 days before the day named for the argument.

(4) The Attorney General for Canada and the Attorney General for the province are entitled as of right to be heard either in person or by counsel notwithstanding that the Crown is not a party to the proceeding.

(5) Where in a proceeding to which this section applies the Attorney General for Canada or the Attorney General for the province appears in person or by counsel, each shall be considered to be a party to the proceeding for the purpose of an appeal from an adjudication as to the constitutional validity of an Act or regulation in question in the proceeding and each has the same rights with respect to an appeal as another party to the proceeding.

(6) Where the court considers it appropriate, the court may order that a notice under this section be given to the Attorney General of a province.

1986 c42 s57

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Council of judges

58. (1) A council consisting of the judges of the Trial Division shall meet at least once yearly at the call of the chairperson and at other times upon the written request of 3 judges of the Trial Division to the chairperson, upon a day fixed by the chairperson and of which he or she shall give notice to the judges assembled for the purpose of

(a) considering

(i) the operation of this Act and the rules, and

(ii) the working of, and the arrangements governing the performance of duties by, the clerks, officers and employees of the court;

(b) inquiring into and examining defects that appear to exist in the procedure of a court; and

(c) considering other matters that the chairperson or 1 of the judges of the Trial Division considers appropriate.

(2) The Chief Justice of the Trial Division shall be the chairperson of the council.

(3) Where the council considers it necessary and appropriate to do so, it may form 1 or more subcommittees to deal with a matter referred to in subsection (1) and each subcommittee so formed shall meet at the times and places that are necessary to achieve the purpose for which it was formed.

1986 c42 s58

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Conferences

59. The Chief Justice of Newfoundland and the Chief Justice of the Trial Division may require a judge of the Court of Appeal or the Trial Division to attend a meeting, conference or seminar to be held for a purpose relating to the administration of justice.

1986 c42 s59

PART IV
OFFICERS OF THE SUPREME COURT

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Clerks

60. (1) The Lieutenant-Governor in Council may appoint as clerks of the Supreme Court a registrar, an associate registrar, deputy registrars, assistant deputy registrars and other clerks that the business of the Supreme Court may require.

(2) The clerks appointed under this section shall, by virtue of their office, have power to administer oaths or affirmations, take affidavits, issue process and take bail.

(3) There shall be at least 1 assistant deputy registrar in the Court of Appeal and at least 1 assistant deputy registrar in each judicial centre.

(4) The clerks appointed under this section shall, before entering upon their duties, take and sign before 1 of the judges the following oath or affirmation:

"I, A.B., of .................... , do solemnly swear (or solemnly, sincerely and truly declare and affirm) that I will according to the best of my skill, learning, ability and judgment, well and faithfully execute and fulfil the duties of the office of .................... without favour or affection, prejudice or partiality, to a person." (Where an oath is taken, add "So help me God".).

1986 c42 s60

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Registrar and associate registrar

61. (1) The Registrar of the Supreme Court and the Associate Registrar of the Supreme Court shall be members in good standing of the Law Society of Newfoundland.

(2) The registrar and the associate registrar shall not practise as a barrister or solicitor, or demand or receive fees or compensation.

(3) The registrar and the associate registrar are masters and taxing officers of the Supreme Court.

(4) The registrar and the associate registrar hold office during good behaviour.

(5) The registrar and the associate registrar shall give security as approved by the Lieutenant-Governor in Council

(a) for the faithful discharge of the duties of registrar and associate registrar; and

(b) for the safekeeping of, and accounting for, all money paid into the hands of the registrar or associate registrar by virtue of his or her office or by order of the court.

1986 c42 s61

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Duties of clerks

62. (1) The associate registrar, deputy registrars, assistant deputy registrars and the other clerks and officers of the Supreme Court are under the direction of the registrar and shall perform the duties that may be prescribed by the registrar.

(2) The clerks and other officers other than the registrar and associate registrar shall give security as approved by the Lieutenant- Governor in Council.

(3) In the absence of the registrar, or in the case of a vacancy in the post, the associate registrar shall perform the duties of the registrar, and if the associate registrar is unavailable, the senior deputy registrar at the judicial centre of St. John's shall perform the duties of the associate registrar, and if both the registrar and associate registrar are unavailable, the senior deputy registrar at the judicial centre of St. John's shall perform the duties of the registrar and associate registrar.

(4) In the absence of an assistant deputy registrar, or in the case of a vacancy in the post, the registrar may, on a temporary basis, assign another clerk in the judicial centre or a clerk from another judicial centre to perform the duties of an assistant deputy registrar.

(5) The deputy registrars and assistant deputy registrars shall be taxing officers for the purpose of taxing costs in respect of a proceeding or class of proceeding that the registrar may specify.

1986 c42 s62

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Duties of registrar

63. (1) The registrar

(a) shall receive, file and have custody of all pleadings, petitions, reports, affidavits, bonds, notices, orders and other papers and documents in every proceeding in the court, and shall make appropriate entries in the proper books;

(b) has the care and custody of all documents ordered to be deposited for safekeeping or produced under an order of the court;

(c) shall enter in a cause book all proceedings of the court, and all entries for trial, appeals, special cases, and other business coming before the court;

(d) shall certify proceedings and examine and authenticate office copies of pleadings and other proceedings;

(e) shall sign all orders of the court and enter them;

(f) shall keep the minutes of the proceedings of the court;

(g) shall seal and sign all grants of probate, letters of administration, letters of guardianship and official copies of them that have been ordered by the court;

(h) shall collect the fees to be collected by the registrar as set out in the rules;

(i) shall keep an account of all money paid into and out of the court;

(j) possesses and enjoys all the powers, rights and privileges appertaining to or exercised by, and shall perform the duties of, the master, registrar, accountant-general and prothonotary of the Supreme Court of Judicature in England, or those officers that now in that court perform those duties; and

(k) possesses and enjoys all the powers, rights and privileges appertaining to or exercised by, and shall perform the duties of, the chief clerk and registrar as set out in The Newfoundland Judicature Act, 1889.

(2) The registrar may assign any or all of the duties and powers set out in subsection (1) to the associate registrar, deputy registrars, assistant deputy registrars or other clerk or officer of the court.

(3) The Assistant Deputy Registrar of the Court of Appeal or other clerk or officer in charge of the registry in the Court of Appeal shall perform the duties and powers as set out in subsection (1) that may be appropriate to the Court of Appeal.

(4) Where the Court of Appeal so directs, the Assistant Deputy Registrar of the Court of Appeal or a master of the Supreme Court shall be a taxing officer of the Court of Appeal for the purpose of taxing costs in respect of a proceeding.

1986 c42 s63; 1988 c54 s14

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Distribution of proceedings

64. (1) Unless a majority of the judges agree upon another method of distribution, all proceedings started at a judicial centre served by 2 or more judges shall be distributed among those judges in rotation.

(2) The registrar shall be responsible for the distribution referred to in subsection (1) being made according to regular and just rotation, and in a manner as to keep secret from all persons the rotation of the judges.

1986 c42 s64

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Execution by registrar

65. (1) Where a trustee or other person acting in a fiduciary capacity obtains leave from the court to bid on a sale of the trust estate, and to become the purchaser, the court may in addition order that the conveyance of the trust estate be executed by the registrar.

(2) A deed executed under subsection (1) by the registrar is of the same effect as if it had been executed by the trustee or other person acting in a fiduciary capacity.

1986 c42 s65

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Discharge of liability of registrar

66. (1) The Consolidated Revenue Fund is liable to make good all sums required to discharge a liability that the registrar is liable to discharge as administrator, guardian, trustee, receiver.

(2) Neither the registrar, nor the Consolidated Revenue Fund, is liable to discharge a liability

(a) that the registrar has not contributed to; and

(b) that the registrar could not have averted by the exercise of reasonable diligence.

1986 c42 s66

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Registrar's accounts

67. (1) The registrar shall, as soon as possible after the end of every fiscal year, prepare accounts of all money held by the registrar as an administrator, guardian, trustee or receiver, and shall, before August 1 in every year, provide a copy of the accounts

(a) to the Chief Justice of the Trial Division, for the information of the judges; and

(b) to the minister.

(2) The auditor general shall examine and audit the accounts of the registrar.

1986 c42 s67

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Registrar's fees, etc.

68. All fees, commissions, allowances and expenses payable to or receivable by the registrar in his or her capacity as registrar under this or another Act shall be paid into the Consolidated Revenue Fund.

1988 c54 s14

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Unclaimed money

69. (1) Money in the hands of the registrar and received by the registrar in his or her capacity as registrar, administrator, guardian, trustee or receiver to which, in the opinion of the registrar, following appropriate inquiry

(a) there is no person legally entitled; or

(b) the person legally entitled is either not known or that person's whereabouts are unknown,

may be paid by the registrar into the Consolidated Revenue Fund.

(2) Subsection (1) does not apply to money paid into the Supreme Court under the rules unless the court so orders.

1986 c42 s68

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Saving

70. (1) A person who may be entitled to money paid by the registrar into the Consolidated Revenue Fund under section 72 may apply to the Trial Division for an order

(a) that the person is legally entitled to that money; and

(b) directing the registrar to pay over to that person the money and interest that are set out in the order.

(2) Upon receipt of a copy of an order issued under subsection (1) the Minister of Finance shall pay the money and interest set out in the order from the Consolidated Revenue Fund to the credit of the registrar.

(3) The interest directed to be paid under an order made under subsection (1) shall be the interest which would have been credited under subsection 71(4) if the money paid into the Consolidated Revenue Fund had been in a consolidated trust fund of the registrar from the date of payment into the Consolidated Revenue Fund until the date of that order.

(4) Where money was paid into the Consolidated Revenue Fund under section 69 before the establishment of a consolidated trust fund of the registrar, the interest from the date of payment into the Consolidated Revenue Fund to the date of the establishment of a consolidated trust fund of the registrar shall be calculated at the rate of 8% yearly simple interest.

1986 c42 s69

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Consolidated trust funds

71. (1) All money held by the registrar in the registrar's capacity as registrar, administrator, guardian, trustee or receiver may be kept by the registrar in 1 or more consolidated trust funds.

(2) The interest rate payable on the consolidated trust funds shall be prescribed by the minister upon the recommendation of the registrar, and the amount of interest shall be calculated upon the minimum monthly balance of the money in the respective consolidated trust funds.

(3) The interest rate prescribed by the minister under subsection (2) may be a fixed rate of interest or may be an interest rate that is related to the interest rate earned by the consolidated trust funds or to another interest rate of general application.

(4) The registrar shall credit the interest at the rate prescribed and calculated under subsection (2) to the various accounts making up the consolidated trust funds half yearly, on April 30 and October 31, or on another date on which an account is paid out by the registrar.

1986 c42 s70

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Special reserve fund

72. (1) Where the income or other gains earned by the consolidated trust funds established under subsection 71(1) exceeds in a half year the amount credited under subsection 71(4), the excess income or other gains earned may be paid into a special reserve fund.

(2) The special reserve fund may be used by the registrar

(a) to meet a deficiency between the income or other gains earned by a consolidated trust fund and the amount required to be credited under subsection 71(4);

(b) to meet a deficiency between the total amounts of money invested by the consolidated trust funds and the realized value of the investments held by the funds;

(c) to meet the cost of the administration of the consolidated trust funds and the special reserve fund;

(d) to meet the expenses incurred by the registrar in the exercise of the registrar's duties as registrar, administrator, guardian, trustee or receiver; and

(e) to meet the expenses incurred by the registrar in the registrar's capacity as administrator, guardian or trustee, where money to meet those expenses are not available in an estate administered by the registrar.

(3) The registrar may recover from an estate money paid out by the registrar under paragraphs (2)(d) and (e) with reference to the estate.

(4) The provisions of paragraphs (2)(d) and (e) do not impose a duty on the registrar to spend money for the benefit of an estate administered by the registrar or to insure or otherwise preserve property of the estate where money is not available in the estate to meet the expenses.

1986 c42 s71

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Authorized investments

73. Money in the consolidated trust funds and the special reserve fund shall be invested in investments authorized by the Trustee Act.

1986 c42 s72

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Trust and estate officers

74. (1) There may be appointed in the manner provided by law those accountants, trust and estate officers and other employees that may be required to assist the registrar in the carrying out of his or her duties as administrator, guardian, trustee and receiver.

(2) The accountants, trust and estate officers and other employees appointed under subsection (1) shall, before entering upon their duties, take and sign before 1 of the judges the following oath or affirmation:

"I, A.B., of .................... , do solemnly swear (or solemnly, sincerely and truly declare and affirm) that I will according to the best of my ability and judgment, faithfully execute and fulfil the duties of ....................." (Where an oath is taken, add "So help me God".).

1986 c42 s73

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Court reporters

75. (1) There may be appointed in the manner provided by law and upon the recommendation of the Chief Justice of Newfoundland or the Chief Justice of the Trial Division court reporters of the Supreme Court

(a) to report proceedings; and

(b) to perform other duties that may be assigned by the judges.

(2) The reporters appointed under subsection (1) shall, before entering upon their duties, take and sign before 1 of the judges the following oath or affirmation:

"I, A.B., of.................... , do solemnly swear (or solemnly, sincerely and truly declare and affirm) that I will faithfully take down and transcribe the evidence and proceedings in which I am assigned to act as court reporter, and that I will faithfully perform other duties assigned to me." (Where an oath is taken, add "So help me God".).

1986 c42 s74

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Tipstaffs and criers

76. (1) There may be appointed in the manner provided by law tipstaffs and criers of the Court of Appeal and the Trial Division upon the recommendation of the Chief Justice of Newfoundland, and the Chief Justice of the Trial Division.

(2) The Chief Justice of Newfoundland and the Chief Justice of the Trial Division shall designate, from among the tipstaffs and criers appointed under subsection (1), 1 to be the chief tipstaff and crier for the Court of Appeal and for each judicial centre.

(3) The tipstaffs and criers appointed under this section shall, before entering upon their duties, take and sign before 1 of the judges the following oath or affirmation:

"I, A.B., of .................... , do solemnly swear (or solemnly, sincerely and truly declare and affirm) according to the best of my ability and judgment, will faithfully execute and fulfil the duties of ....................." (Where an oath is taken, add "So help me God".).

1986 c42 s75

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Masters and taxing officers

77. The Chief Justice of Newfoundland may issue commissions under the seal of the Court of Appeal to those barristers that the Chief Justice of Newfoundland thinks suitable to be masters and taxing officers of the Supreme Court.

1986 c42 s76

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Commissioners within the province

78. (1) The Chief Justice of Newfoundland and the Chief Justice of the Trial Division may issue commissions within the province under the seal of the Court of Appeal or the Trial Division to those persons that they think suitable, and may revoke the commissions.

(2) A commissioner appointed under subsection (1)

(a) may administer oaths and take affidavits, bail or recognizance within the province in or concerning a proceeding in the court; and

(b) may, if empowered to do so, issue originating documents returnable to the court.

1986 c42 s77

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Commissioners outside the province

79. (1) The Chief Justice of Newfoundland and the Chief Justice of the Trial Division may issue commissions outside the province under the seal of the Court of Appeal or the Trial Division to those persons that they think suitable, and may revoke the commission.

(2) A commissioner appointed under subsection (1) may administer oaths and take and receive affidavits outside the province in or concerning a proceeding in the court.

(3) An oath, affidavit or acknowledgment taken before a commissioner appointed under subsection (1) is as valid and effectual as if it had been administered or made before a commissioner within the province or other competent person.

1986 c42 s78

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Fees of commissioners

80. The fees to be taken by commissioners appointed under sections 78 and 79 are those set out in the rules.

1986 c42 s79

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Sheriff of Newfoundland

81. The Lieutenant-Governor in Council shall appoint a person known as the High Sheriff of Newfoundland who shall hold office at the pleasure of the Crown and who is charged with the responsibility of ensuring that the powers, functions and duties of sheriff are properly carried out in accordance with the law.

1986 c42 s80

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Sheriff's fees, etc.

82. Notwithstanding subsection 87(1), all fees, commissions, poundage, allowances and expenses payable to and receivable by the high sheriff in his or her capacity as sheriff under this or another Act shall be paid into the Consolidated Revenue Fund.

1988 c54 s14

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Sub-sheriffs and bailiffs

83. (1) The Lieutenant-Governor in Council may appoint upon the terms and conditions that the Lieutenant-Governor in Council may prescribe

(a) a sub-sheriff to assist the high sheriff; and

(b) additional sub-sheriffs for those areas of the province that are designated in their appointments to help in carrying out the functions and duties of high sheriff within their areas.

(2) There may be appointed in the manner provided by law, bailiffs and other clerks and employees that are necessary to help the high sheriff in carrying out the powers, functions and duties of high sheriff.

1986 c42 s81

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Deputy sheriffs

84. (1) The high sheriff may appoint on a part-time basis deputy sheriffs to exercise and discharge under the control, direction and responsibility of the sheriff those powers, functions and duties of the sheriff that are conferred upon them by the sheriff within locations of the province designated in their appointment.

(2) Deputy sheriffs are not employees of the province notwithstanding that all or part of their remuneration may be provided from funds voted by the Legislature.

(3) The high sheriff shall maintain a list of all deputy sheriffs appointed under this section showing the location in which the deputy sheriff is designated to act and the list is open to public inspection during normal office hours at no charge.

1986 c42 s82

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Oaths

85. The high sheriff and every sub-sheriff, bailiff and deputy sheriff shall, before performing the duties of the office of the sheriff, take and sign before a judge or Provincial Court judge the Oath of Allegiance and Judicial Oath referred to in the Oaths of Office Act.

1986 c42 s83

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Security

86. The high sheriff and every sub-sheriff appointed under section 84 shall give the security that may be approved by the Lieutenant-Governor in Council for the performance of their duties.

1986 c42 s84

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Duties, powers, etc.

87. (1) The duties, powers and privileges of the high sheriff shall be the same as those performed, exercised and enjoyed by the sheriff before September 2, 1986.

(2) The high sheriff shall comply with, implement and execute the requirements imposed upon the sheriff by this Act, another Act of the province or under the common law.

1986 c42 s85; 1988 c54 s14

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Appointments generally

88. (1) There may be appointed in the manner provided by law other officers, secretaries and employees that may be necessary to carry out the duties and functions of the Supreme Court under this Part.

(2) The officers, secretaries and employees appointed under subsection (1) shall, before entering upon their duties, take and sign before 1 of the judges the following oath or affirmation:

"I, A.B., of .................... , do solemnly swear (or solemnly, sincerely and truly declare and affirm) according to the best of my ability and judgment, that I will faithfully execute and fulfil the duties of ....................." (Where an oath is taken, add "So help me God".).

1986 c42 s86

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Officers of the court

89. All clerks, officers and other employees and staff appointed under this Part shall be officers of the Supreme Court.

1986 c42 s87

PART V
RULES OF LAW

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Interpretation

90. In civil proceedings in the Supreme Court, law and equity shall be administered by it in accordance with the rules set out in this Part.

1986 c42 s88

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Equitable relief

91. If a plaintiff or petitioner claims to be entitled

(a) to an equitable estate or right;

(b) to relief, upon an equitable ground, against a deed, instrument or contract, or against a right, title or claim asserted by a defendant or respondent; or

(c) to relief founded upon a legal right, that could have in the past been given in equity,

the court shall give to the plaintiff or petitioner the same relief as ought to have been given in a proceeding in equity for the same or similar purpose before December 31, 1889, being the day that The Newfoundland Judicature Act, 1889, came into force.

1986 c42 s89

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Equitable relief

92. If a defendant

(a) claims to be entitled to an equitable estate or right;

(b) claims to be entitled to relief, upon an equitable ground, against a deed, instrument or contract, or against a right, title or claim asserted by a plaintiff or petitioner; or

(c) alleges a ground of equitable defence to a claim of a plaintiff or petitioner,

the court shall give to an equitable estate, right, or ground of relief so claimed, or equitable defence so alleged, the same effect, by way of defence against the claim of a plaintiff or petitioner, as the court ought to have given if the same or similar matters had been relied on by defence in a proceeding instituted in equity for the same or similar purpose before December 31, 1889.

1986 c42 s90

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Equitable and legal relief

93. The court may grant to a defendant

(a) in respect of an equitable estate or right, or other matter of equity; and

(b) in respect of a legal estate, right or title claimed or asserted by that defendant,

all the relief against a plaintiff or petitioner that the defendant has properly claimed and that the court might have granted in a proceeding instituted for that purpose by the same defendant against the same plaintiff or petitioner.

1986 c42 s91

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Joined defendant

94. (1) Relief

(a) claimed under section 93;

(b) related to or connected with the original subject matter of the proceeding; and

(c) in a similar manner claimed against another person whether a party to the same proceeding or not,

may be granted against a person who has been served with written notice of the claim under a rule or an order of the court, and that might have been granted against that person if that person had been made a defendant to a proceeding instituted by the defendant seeking relief under section 93 for a similar purpose.

(2) A person served with a notice under subsection (1) is considered to be a party to the proceeding with the same rights in respect of that person's defence against the claim as if that person had been sued in the ordinary way by a defendant seeking relief under section 93.

1986 c42 s92; 1987 c41 s9

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Equitable estates

95. The court shall recognize and take notice of

(a) all equitable estates, titles and rights; and

(b) all equitable duties and liabilities,

appearing incidentally in the course of a proceeding in the same manner in which the Court in Equity would have recognized and taken notice of the equitable estates, titles, rights, duties and liabilities in a proceeding instituted before December 31, 1889.

1986 c42 s93

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Prohibition and injunction

96. (1) A proceeding shall not be restrained by prohibition or injunction.

(2) Notwithstanding subsection (1), a matter of equity on which an injunction against the prosecution of a proceeding might have been obtained either unconditionally or on any terms and conditions if The Newfoundland Judicature Act, 1889 had not been enacted may be relied on as a defence.

1986 c42 s94

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Stay of proceedings

97. (1) The court may direct a stay of proceedings pending before it.

(2) A person, whether or not that person is a party to the proceeding

(a) who would have been entitled, if The Newfoundland Judicature Act, 1889 had not been enacted, to apply to the court to restrain the prosecution of the proceeding; or

(b) who may be entitled to enforce an order, contrary to which proceedings may have been taken,

may apply in a summary way for a stay of the proceedings either generally or where necessary for the purposes of justice, and the court shall make the order that may be just.

1986 c42 s95

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Recognition of common law

98. Subject to sections 91 to 97 and other provisions of existing law

(a) all legal claims and demands; and

(b) all estates, titles, rights, duties, obligations and liabilities existing by the common law or custom, or created by statute,

shall be recognized and given effect to by the court as they would have been before December 31, 1889.

1986 c42 s96

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Avoidance of multiplicity of actions

99. In a proceeding the court shall grant, either absolutely or on those terms and conditions that seem just, all the remedies that the parties may be entitled to in respect of the legal and equitable claims properly brought forward in the proceeding, so that where possible

(a) all matters in controversy between the parties may be completely and finally determined; and

(b) multiplicity of proceedings concerning the matters may be avoided.

1986 c42 s97

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Equitable waste

100. An estate for life without impeachment of waste does not confer upon the tenant for life a legal right to commit equitable waste, unless an intention to confer such a right is expressly contained in the instrument creating the estate for life.

1986 c42 s98

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Merger by operation of law

101. There is no merger by operation of law only of an estate, the beneficial interest in which would not be considered to be merged or extinguished in equity.

1986 c42 s99

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Right of mortgagor

102. (1) A mortgagor entitled to the possession of land or the receipt of the rents and profits of land, where a notice has not been given by the mortgagee to take possession of the land or enter into receipt of the rents and profits of the land, may start a proceeding in the mortgagor's own name only

(a) for the possession;

(b) to distrain for the recovery of the rents or profits; or

(c) to prevent or recover damages in respect of a trespass or other wrong.

(2) Subsection (1) does not apply where the proceeding arises upon a lease or other contract made by the mortgagor jointly with another person, unless the mortgagor starts a proceeding or distrains jointly with that other person.

1986 c42 s100

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Assignment of debts

103. (1) An absolute assignment by writing signed by an assignor of a debt or other legal thing in action,

(a) that does not purport to be by way of charge only; and

(b) of which express written notice has been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim the debt or thing in action,

is considered to be effectual in law, subject to all equities that would have been entitled to priority over the right of the assignee if The Newfoundland Judicature Act, 1889 had not been enacted, to pass and transfer

(c) the legal right to the debt or thing in action from the date of the notice;

(d) all legal or other remedies of the debt or thing in action; and

(e) the power to give a good discharge for the debt or thing in action without the concurrence of the assignor.

(2) A debtor, trustee or other person liable in respect of a debt or thing in action who has notice

(a) that an assignment is disputed by the assignor of the debt or thing in action or a person claiming under the assignor; or

(b) of another opposing or conflicting claim to the debt or thing in action,

may call upon the persons making the claims to interplead concerning their claims, or may, upon an order, pay the amount that that debtor, trustee or other person is liable for into court to await the determination of the court in respect of that amount.

1986 c42 s101

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Stipulations as to time

104. Stipulations in contracts as to time or otherwise that would have not been held to be of the essence of the contracts in a court of equity before December 31, 1889 shall receive the same construction and effect in the Court of Appeal or the Trial Division as they would have received in equity.

1986 c42 s102

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Mandamus or injunction

105. (1) A mandamus or an injunction may be granted, or a receiver appointed, by an order of the court, in all cases in which it appears to the court to be just or convenient that the order should be made.

(2) An order made under subsection (1) may be made either unconditionally or upon the terms and conditions that the court thinks just.

(3) An injunction that is asked for, either before, at, or after the hearing of a proceeding, to prevent a threatened or apprehended waste or trespass may be granted by the court

(a) whether the person against whom the injunction is sought is or is not in possession under a claim of title or otherwise;

(b) whether that person, if out of possession, does or does not claim a right to do the act sought to be restrained under a colour of title; or

(c) whether the estates claimed by both or either of the parties are legal or equitable.

1986 c42 s103

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Custody questions

106. In all questions relating to the custody and education of minors, the rules of equity prevail.

1986 c42 s104

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Equity prevails

107. In all matters that are not particularly set out in this Part in which there is a conflict or variance between the rules of equity and the rules of common law, the rules of equity prevail.

1986 c42 s105

PART VI
PROBATE AND ADMINISTRATION

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Definitions

108. In this Part

(a) "court" means the Trial Division, the court or a judge of the court, whether sitting in court or in chambers; and

(b) "foreign grant" means a grant of probate or administration or other document having the same general effect that letters of probate and administration have in this province that has been granted by a court in

(i) a province of Canada,

(ii) the United Kingdom or a British possession, colony or dependency, or

(iii) a member nation of the Commonwealth,

under subsection 132(5).

1986 c42 s106

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Central registry

109. (1) When letters of probate and administration are issued at a judicial centre other than the judicial centre at St. John's, a true copy of the will, the letters, the petition leading up to the grant, the inventory and other documents which the registrar may prescribe shall be forwarded immediately to the central registry by the assistant deputy registrar or other clerk in that judicial centre.

(2) The registrar shall file the documents referred to in subsection (1) and shall maintain an index of all grants of probate or administration made in the province.

1986 c42 s107

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Application

110. (1) An application for letters of probate or administration or for the resealing of a foreign grant shall be by petition to the court.

(2) The petition shall be verified by affidavit.

(3) Five days' notice of the petition shall be posted in the registry but the court may prescribe a different period or method of notice or may dispense with the requirement of notice.

1986 c42 s108

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Form

111. Letters of probate or administration shall be in the form prescribed by the rules.

1986 c42 s109

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Inventory and valuation

112. (1) A petition for letters of probate, administration, guardianship or for the resealing of foreign grants in the court shall have annexed to it an inventory and valuation of the estate within the province.

(2) The inventory and valuation shall be verified by affidavit.

1986 c42 s110

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Certificate from registry

113. A grant of letters of probate or administration may not be made until a certificate has been received from the registry that a caveat has not been entered opposing the grant of letters of probate or administration and a certificate has been received from the central registry that no previous grant has been made or that a previous grant has been made in which latter case the certificate shall provide particulars of the previous grant.

1986 c42 s111

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Caveat

114. A person who intends to oppose the issuing of a grant of letters of probate or administration shall, either personally or by his or her solicitor, enter a caveat in the registry.

1986 c42 s112

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Where caveat or objection

115. (1) The court shall require those of the parties concerned as it considers necessary to appear and plead to a statement of claim for a grant of letters of probate or administration where

(a) a caveat to an application for a grant has been entered before the issuing of letters of probate or administration; or

(b) in the opinion of the court, sufficient objection is made against a grant of letters of probate or administration.

(2) The court, after default or trial, may make the order that appears just.

1986 c42 s113

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Proof in solemn form

116. (1) A will may be required to be proved in solemn form on the petition verified by affidavit

(a) of a person claiming as executor or having or wishing to have execution of the will; or

(b) of a person interested in the will or in the estate of the testator.

(2) The court shall, upon a petition made under subsection (1), order a proceeding to be started to obtain probate in solemn form, and may direct who will be the parties to the proceeding.

1986 c42 s114

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Other proof

117. (1) An affidavit may be obtained from a person who may have been present at the execution of a will where

(a) both the signing witnesses to the will are dead; or

(b) an affidavit cannot be obtained from either of the signing witnesses.

(2) Where an affidavit cannot be obtained under subsection (1), affidavits shall be provided to the court stating that no affidavit can be obtained under subsection (1), and

(a) setting out evidence of the handwriting of the testator and the signing witnesses; or

(b) setting out evidence as to other circumstances that may raise a presumption in favour of the execution of the will.

1986 c42 s115

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Production of testamentary document

118. (1) The court may, whether a proceeding is or is not pending with respect to probate or administration, order a person to produce and bring into the registry, or otherwise as the court may direct, a paper or writing being or purporting to be testamentary that may be under the control of that person.

(2) Where it appears to the court that there are reasonable grounds for believing that a person has knowledge of a writing or paper purporting to be testamentary, the court may direct that person to attend the court to be examined orally, or upon interrogatories respecting the writing or paper.

(3) A person ordered to produce and bring into the court a paper or writing under subsection (1) shall produce and bring into court that paper or document if it is in the possession or control of that person.

(4) A person directed to attend the court under subsection (2) shall answer the questions and interrogatories put to that person.

(5) A person who does not obey an order or direction of the court under subsection (3) or (4) or does not answer questions or interrogatories under subsection (4) is subject to the same process of contempt as that person would have been subject to if that person had been a party to a proceeding in the court and had made the default.

(6) The costs of an order made under this section are in the discretion of the court.

1986 c42 s116

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Discretion as to grant

119. Under special circumstances, where it appears to the court to be just or expedient, letters of probate or administration may be granted to a person other than the person entitled ordinarily or by law to the grant of probate or administration.

1986 c42 s117

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Security

120. (1) Letters of administration may not be granted, or a guardian or receiver of property appointed, until security is given by the person seeking appointment as administrator, guardian or receiver for the faithful discharge of his or her duties, unless the court otherwise orders.

(2) Subsection (1) does not apply to a trust company authorized to do business in the province or to the registrar.

1986 c42 s118

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Appointment of administrator pending action

121. (1) The court may appoint an administrator of the estate of a deceased person pending a proceeding concerning the validity of the deceased's will, or for obtaining, recalling or revoking letters of probate or administration.

(2) An administrator appointed under subsection (1) has all the rights and powers of an administrator appointed in the usual manner except the right to distribute the residue of the estate.

(3) An administrator appointed under subsection (1) is subject to the control of the court and shall act under its direction.

1986 c42 s119

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Effect of grant

122. Following a grant of letters of administration a person may not act as executor of the estate of a deceased or take an action as to the estate comprised in or affected by the grant of letters of administration until the grant has been recalled or revoked.

1986 c42 s120

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Removal of executor

123. Upon the application of a person interested in the estate of a deceased person, the court may, by order, remove an executor or administrator upon the same grounds that the court may remove a trustee, and may appoint some other person to act in the place of the executor or administrator so removed.

1988 c54 s14

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Not a sole executor

124. (1) Where the executor or administrator removed under section 123 is not a sole executor or administrator, the court need not appoint a person to replace the executor or administrator.

(2) If an appointment is not made to replace an executor or administrator, the rights of the executor or administrator removed pass to the remaining executor or administrator.

1986 c42 s122

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Executor of appointed executor

125. The executor of a person appointed as an executor under section 123 does not, by virtue of the appointment, become executor of that estate.

1986 c42 s123

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Executor absent from province

126. (1) Where an executor or administrator to whom letters of probate or administration have been or may be granted has been absent from the province for 1 year and has not appointed a responsible attorney to act for and represent that executor or administrator, the court may, on petition verified by affidavit showing to the satisfaction of the court that the interests of the parties concerned in the estate are or will be prejudiced by the absence, appoint an administrator with the will annexed or an administrator to complete the administration of the estate.

(2) An administrator appointed under subsection (1) has, during the absence of the executor or administrator and on giving security sufficient to the court, the same power as the absent administrator or executor would have if the administrator or executor were present in the province.

(3) A person wishing to contest the appointment of an administrator under this section shall follow the procedures set out in sections 113 and 115.

1986 c42 s124

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Renunciation by executor

127. Where a person renounces probate of the will of which that person is appointed executor or 1 of the executors

(a) the rights of that person to act as executor stop; and

(b) the representation to the testator and the administration of the estate of the testator may proceed as if that person had not been appointed executor.

1986 c42 s125

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Good faith payments

128. A person making or permitting to be made payments in good faith or a transfer based upon letters of probate or administration is indemnified and protected in doing so, notwithstanding a defect or circumstance affecting the validity of the grant of the letters of probate or administration.

1986 c42 s126

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Filing of accounts

129. A person to whom letters of probate or administration are granted shall, within 1 year after the issuing of the grant, file in the registry

(a) a full inventory and valuation of the estate of or to which the deceased was possessed or entitled to at the time of the death of the deceased;

(b) a full statement of the estate that has come into that person's hands, or into the hands of another person by that person's order;

(c) a full statement of the disbursements made by that person on account of the funeral expenses, debts and estate; and

(d) a full statement of the estate then outstanding or undisposed of.

1986 c42 s127

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Proof of debts

130. (1) Creditors of the estate of a deceased person shall prove their debts immediately after the grant of letters of probate or administration.

(2) Debts may be proven by

(a) an affidavit showing particulars of the debt; or

(b) an account, the correctness of which is certified by a commissioner of the court as having been sworn before that commissioner.

(3) The costs of proof of a debt under subsection (2) shall be met by the creditor.

1986 c42 s128

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Notification of certain creditors

131. (1) When the executor or administrator is prepared to distribute the estate, the executor or administrator shall give notice to the persons whose claims to be creditors have been notified to the executor or administrator but not established to his or her satisfaction that, if they do not establish their claims to the satisfaction of the court within the time set out in the notice, the executor or administrator will proceed to distribute the estate without regard to their claims.

(2) Following the expiration of the time set out in the notice, or a further time that may be granted to a creditor by the court, the property of the deceased may be distributed by the executor without regard to the claims of the creditors notified under subsection (1) who have not proven their claims to the satisfaction of the court.

1986 c42 s129

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Resealing of foreign grants

132. (1) Upon application made under section 110 together with a copy of the foreign grant, the court may order that the foreign grant be sealed with the seal of the court.

(2) Where a foreign grant has received the seal of the court under subsection (1), the foreign grant has the same effect as letters of probate or administration granted in this province.

(3) Before sealing a foreign grant under this section, the court

(a) may require evidence as to the domicile of the deceased;

(b) may, in the case of letters of administration, require the giving of security in an amount sufficient to cover property in the province to which the foreign grant relates; and

(c) may require, on the application of a creditor of the estate, that adequate security be given for the payment of debts due from the estate to creditors living in the province.

(4) A duplicate of a foreign grant sealed with the seal of the court granting it, or a copy certified as correct under the authority of that court, is a sufficient copy for the purposes of subsection (1) and has the same effect as the original.

(5) The Lieutenant-Governor in Council on being satisfied that the legislature of a province, British possession, colony or dependency or a Commonwealth nation has made adequate provision for the recognition in that jurisdiction of probates and letters of administration granted by the Supreme Court may by order direct that this section shall, subject to exceptions and modifications specified in the order, apply to that jurisdiction.

1986 c42 s130

PART VII
ATTACHMENT, EXECUTION AND
DISTRAINT

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Definitions

133. In this Part "property" includes debts, effects, goods or things in action.

1986 c42 s131

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No arrest

134. A person may not be arrested and held to bail in a civil proceeding.

1986 c42 s132

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Goods, etc. to abide order

135. Property attached as provided in the rules shall abide the order of the Trial Division, in the proceeding in which it has been attached.

1986 c42 s133

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Good faith purchaser

136. An execution order against the goods of a judgment debtor shall not prejudice the title to those goods acquired by a person in good faith and for a valuable consideration before the actual seizure of the goods where the purchaser did not have notice before the time of the purchase that an order by which the goods might be seized had been delivered to and remained unexecuted in the hands of the high sheriff.

1986 c42 s134

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Particulars of rent

137. In all cases of distress for rent, the person making the distress

(a) is to deliver to the person in possession of the property; or

(b) where no person is found in possession, is to attach to a conspicuous part of the property,

particulars in writing of the rent demanded specifying the amount, the time when it arose and the person by whom or by whose authority the distress is made.

1986 c42 s135

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Sheriff

138. The high sheriff, the deputies, sub-sheriffs and bailiffs of the sheriff may distrain for rent.

1986 c42 s136

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Distress of goods

139. In all cases of distress the person whose property is distrained and who wishes to recover that property may apply to the Trial Division for a recovery order under the rules.

1986 c42 s137

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Exemptions from attachment

140. (1) The following property is exempt from attachment, execution and distraint:

(a) the furniture, household furnishings and appliances reasonably necessary for the health and welfare of the debtor and the debtor's family having a cumulative market value of not more than $5,000;

(b) all necessary food, clothing and fuel for the debtor and the debtor's family;

(c) tools, implements and necessities used by the debtor in the practice of the debtor's trade, profession or occupation having a cumulative market value of not more than $10,000; and

(d) 1 motor vehicle having a market value of not more than $5,000, if required by the debtor in the course of or to retain employment or in the course of and necessary to the debtor's trade, profession or occupation.

(2) The exemptions provided in subsection (1) do not apply to a corporate debtor.

(3) The amounts set out in paragraphs (1)(a), (c) and (d) may be changed by regulations made by the Lieutenant-Governor in Council.

1986 c42 s138

PART VIII
TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

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References to Court of Appeal

141. Where in an Act, regulation, rule, order, by-law, agreement or other instrument or document reference is made or could be construed as being made to

(a) the Supreme Court of Newfoundland sitting as a full bench;

(b) the Appeal Division of the Supreme Court of Newfoundland; or

(c) a judge of either of those courts,

the reference shall be taken to mean a reference to the Court of Appeal.

1986 c42 s139

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Continuation of proceedings

142. (1) Where, on September 2, 1986, a proceeding is before the Court of Appeal of the Supreme Court of Newfoundland or a judge of that court

(a) the proceeding shall be continued before the Court of Appeal;

(b) the judge dealing with the proceeding shall continue to deal with it in his or her capacity as a judge of the Court of Appeal; and

(c) all documents required to be filed in or in connection with the proceeding shall be styled "In the Supreme Court of Newfoundland, Court of Appeal".

(2) On September 2, 1986, the records and files of the Court of Appeal of the Supreme Court of Newfoundland, whether concluded or not, continue to be the records and files of the Court of Appeal.

1986 c42 s140

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Documents under former style of cause

143. (1) Where a proceeding before the Court of Appeal of the Supreme Court of Newfoundland or a judge of the court is continued under section 142, an affidavit styled in the Court of Appeal of the Supreme Court of Newfoundland

(a) shall be accepted for filing after September 2, 1986 if it had been sworn or affirmed before September 2, 1986; or

(b) may be accepted for filing where it was sworn or affirmed after September 2, 1986 if the registrar is satisfied that it is impossible or that it would result in undue delay or hardship to have an affidavit sworn or affirmed that is properly styled.

(2) The court may, upon the application of a person interested in a proceeding before the Court of Appeal or a judge of that court, give directions

(a) as to the filing of documents or matters of procedure in cases for which no provision is made by section 142 or subsection (1); or

(b) for the purpose of removing or minimizing a procedural difficulty arising on September 2, 1986.

1986 c42 s141

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Reference to Trial Division

144. Where in an Act, regulation, rule, order, by-law, agreement or other instrument or document, reference is made to

(a) the Supreme Court of Newfoundland sitting other than as a full bench;

(b) the Supreme Court of Newfoundland without words indicating the division of that court;

(c) the Trial Division of the Supreme Court of Newfoundland; or

(d) a judge of those courts,

the reference shall be read as a reference to the Trial Division unless the context otherwise requires.

1986 c42 s142

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Continuation of proceedings

145. (1) Where, on September 2, 1986, a proceeding is before the Trial Division of the Supreme Court of Newfoundland or a judge of that court

(a) the proceeding shall be continued before the Trial Division;

(b) the judge dealing with the proceeding shall continue to deal with it in his or her capacity as a judge of the Trial Division; and

(c) all documents required to be filed in or in connection with the proceeding shall be styled "In the Supreme Court of Newfoundland, Trial Division".

(2) On September 2, 1986, the records and files of the Trial Division of the Supreme Court, whether concluded or not, continue to be the records and files of the Trial Division.

1986 c42 s143

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Cases referred back on appeal

146. Where a proceeding

(a) that was before the Trial Division of the Supreme Court prior to September 2, 1986; and

(b) as a result of an appeal

(i) has, before or after September 2, 1986, been referred back to that court to be further dealt with, or

(ii) after September 2, 1986 would, except for this section, have been referred back to that court to be further dealt with,

the proceeding shall be dealt with by the Trial Division as though the proceeding had instead been before that court.

1986 c42 s144

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Documents under former style of cause

147. (1) Where a proceeding before the Trial Division of the Supreme Court or a judge of that court is continued under section 145, an affidavit styled in the Trial Division of the Supreme Court

(a) shall be accepted for filing after September 2, 1986 if it was sworn or affirmed before September 2, 1986; or

(b) may be accepted for filing where it was sworn or affirmed after September 2, 1986 if the registrar is satisfied that it is impossible or that it would result in undue delay or hardship to have an affidavit sworn or affirmed that is properly styled.

(2) The court may, upon the application of a person interested in a proceeding before the Supreme Court, give directions

(a) as to the filing of documents or matters of procedure in cases for which no provision is made by section 145 or subsection (1); and

(b) for the purpose of removing or minimizing a procedural difficulty arising on September 2, 1986.

1986 c42 s145

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Continuation of proceedings

148. (1) Where, on September 2, 1986, a proceeding is before the District Court of Newfoundland or a judge of that court

(a) the proceeding shall be continued before the Trial Division;

(b) the judge dealing with the proceeding shall continue to deal with it in his or her capacity as a judge of the Trial Division; and

(c) all documents required to be filed in or in connection with the proceeding shall after September 2, 1986 be styled "In the Supreme Court of Newfoundland, Trial Division".

(2) On September 2, 1986, the records and files of the District Court of Newfoundland whether concluded or not, become the records and files of the Trial Division.

1986 c42 s149

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Cases referred back on appeal

149. Where a proceeding

(a) that was before the District Court of Newfoundland prior to September 2, 1986; and

(b) as a result of an appeal

(i) has, before or after September 2, 1986, been referred back to that court to be further dealt with, or

(ii) after September 2, 1986 would, except for this section, have been referred back to that court to be further dealt with,

the proceeding shall be dealt with by the Trial Division as though the proceeding had instead been before that court.

1986 c42 s150

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Documents under former style of cause

150. (1) Where a proceeding before the District Court of Newfoundland or a judge of that court is continued under section 148, an affidavit styled in the District Court of Newfoundland

(a) shall be accepted for filing after September 2, 1986 if it was sworn or affirmed before September 2, 1986; or

(b) may be accepted for filing where it was sworn or affirmed after September 2, 1986 if the registrar is satisfied that it is impossible or that it would result in undue delay or hardship to have an affidavit sworn or affirmed that is properly styled.

(2) The court may, upon the application of a person interested in a proceeding before the Trial Division, give directions

(a) as to the filing of documents or matters of procedure in cases for which no provision is made by section 148 or subsection (1); and

(b) for the purpose of removing or minimizing a procedural difficulty arising on September 2, 1986.

1986 c42 s151

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