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Tous les autres exemplaires origlnaux sont fi>mte en commen^ant par la premiere page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernlAre page qui comporte une telle empreinte. Un dee symboles'suivants apparaltra sur la dernlAre Image de cheque microfiche, selon Ic cas: Ie symboie — ► signlfie "A SUiVFiE", ie symbols V signifie "FIN". Lee cartes, planches, tableaux, etc.. peuvent fttre fllmte i dee taux de rMuction diffirents. Lorsque Ie document est trop grsnd pour Atre reprod'jit en un seul clichA, il est film* A partir de I'angle sup^rieur gauche, de gauche h droite. et de haut en bee. en prenant Ie nombre d'images nAcessaire. Les diagrammes suivants illustrent Ie mAthode. 1 2 3 Ike. (^e,Yi(t.'ca. JUD MC11 p: w P&INTSO h»»..^,iL.;^i.'. ''t't^'^k.l^ •••>'*-<.;• JUDICIAL REFORMS raopouco ar ta :.^i(P COMMISSION / y«ji »MClTiI OF m STATUTES. FIRST REPORT. PWNTED BY ORDER OP THE LEQISLATUM. QUEBEC. 1882. .! ."• ^ |-.../ ^•.. iri'i iii^*'.->'-k' i. ^ ^li I n f s ^ / >i Mi J ^ ^ si i£= ^ = «n = o> = J I « s M = = >. Ct/»A/* - Q Wff IJ ii>^^ --■^pKIPw ■«.—;%*•■, - •" "i!"^ PREFACE In THSl FORM 07 k HePORT TO THE LeOISLATIVIE AsSBMBLT OF THE PnOVINCE OF QUEDEO. May it please your Honorable Hoiue : By a resolution passed at the last session of the legislature, iu accordance with the recommendation of the third report of the select committee, appointed to take into consideration the proposed amendments to the Code of Civil Procedure, your Honorable House entrusted the Commission for the Codification of the Statutes, with the preparation of a scheme of judicial reorganization and the remodelling of that Code. This scheme, which is more a sketch than a matured plan, is now complete ; and the Commission has the honor of submitting it to you, leaving it to your wisdom to perfect it. The Commission might allege, as an excuse for the imperfections of the work, the short time allowed for its preparation; but, being assured of your willingness to credit it with endeavoring worthily to carry out the honorable task which you imposed, it alludes "^o the haste with which the work required has of necessity been per* formed, solely for thf, purpose of ensuring a more careful revision on the part of your Honorable House. The defects in the administration of justice do not arise from the Bench, which is upright, laborious and en- lightened, but £rom the numerous and radical faults in :>wl. "'^'l-l^*. .>.'^^ , .~:..-.t^ -L^-^-K-t' • JUDICIAL REFORMS. the Code of Civil Procedure, the insufficiency of which ii universally admitted, and from the imperfect gradation and organization of the Courts. The degrees of justice are too numerous, and its proverbial tardiness in this country must be attributed as much to that fact as to the tendency of our lormal >• admlnistraUon of jusUce the attorney and solicitor-gcneral, the law officers of the crown whliS., duties take up all their time, and to represent the govenmenU; aTl "wn catl 1 1 V PBEFAGS. • But tho excossivo increase of these courts created too many jurisdictions, and placad the judgea exercising their functions therein, in an isolated position which was prejudicial to uniformity in jurisprudence. This isolation was also prejudicial to the advocates, divided into numerous sections of the bar, strangers to each other, and without professional intercourse or any interest iu common. It retarded tho rise of the legal profession and deprived the country parts of that social influence v,hich thoy had a right to expect from it. Thus, by disseminating beyond measure tho operations of the judicial power, decentralization diminished its vigor and loosonci its tics. From judicial decentralization so carried out arose the abnormal system of a single judge, condemned, in spite of Beniham's opinion, by the views of nearly all publicists, and disapproved by reason. This system, which our experience soon showed to bo insnfficieni, was replaced by the Court of Review, a ha:iardou8 expedient of the Act of 1864 to supplement the omissions of the legislature of 1857, which had neglected to place at the disposal of the districts so parcelled out, a sufTicient number of judges to continue, in contested cases, the system of a plurality of jixdgos, which had until then been followed. Besides adding another to the already too numerous degrees of jurisdiction in our courts, the institution of the Court of Review, a mixed court of first and last resort, which is not appellate and still not a court of original juris- diction, was a retrograde step in the direction of centru liga- tion, and resulted in the revival of an abuse w^hioh Lad disappeared, namely, tho domination of the great centres. The aim of the Act of 1857 had been to secure for the country parts their independence of the large towns, and to assure to the new districts their judicial autonomy. Tlx«s« advantagos wezo dona away with by thd Aot of .^ u 9 JUDIOUL KEFOBMiS. 186*, which submitted the decisions of their judges to review by the courts of Quebec and Montreal, thus placing them in an inferior position with respect to their coUea^es of the great centres, and it is these, advantages which the Commission wishes to restore to them.*^ • Judicial deoontrallzotlon li now an aooompUshod faot, and It would bo rala to Uy to WMiiUblUh tho old •ystom or to ujaot the basis of tho now. It must b« admlttcf that, lu tho beginning, the now Bystom of dooontrallzation WM oarrlod too far, iud a au,;.. sr of soparato JuriadicUons, diaproportlonato to tn« wanu of tho public, wore created, a Sofoot which tho Improved v i ius of oommunlcaUon render erery da/ more apparent. It Is, howeror, with a view to the future, as wall as the presort needs of a people, that laws aro framed and UisUtuUons created; and who knows uut that In a century, or oven less, our descendant, on account of the increase in population and multipUcity of social tics, may not find these jurisdicUons too largo which we now find too small 7 The Commission had, huwever, no choice, being persuaded that any scheme of judicial reorganizaUon based upon the principlo of n^centraluaiion (if such a term may bo used) would inevitably miscarry In a Honso, sovon-eighths of whoso members represent rural conDtituenoie?, and it had, therefore, to base tho proposed reforms upon tho present Irrevocably fixed order of things, and ondonvor to Improve, Instead of to destroy it. The best way of attaining this result was to relieve iho now dlatrlots fro.n all dependenoo upon the great centres, by suppressing tho Court of Iloviow, which la held by three Judges of the districts of Quobeo ond Montreal, and to have tho cases of tho territorial divisions, dismembered from the old districts, decided in the first insUnoe by the Judges of the fifteen remaining districts (the districts of Oaspd, Saguenay and OhicoutimI, from their geographical position and peculiar circumsUnces, being excluded) grouped ic*o (arrcndimmtnuy clrcuiU of three distrxctB each, whoso Judges, whilst continuing to reside in their several districu to administer local affairs, shall meet to decide together the cases in such circuit now submitted to the Court of Review. In these circuits, no ono dlatrict shall hovo any proforenco over the othorj, as the three judges will nit alternately and la rotation In each, to adjudicate upon the oases of the dUtriot. It will no longer bo nocossary for the parties to loavo homo la search of JusUoe la the large cities, as they were compelled to do under tho old system of centralization, and as they now are for cases la review, but tboy will find It at hand as thoy do now in the courts of original JurlsdicUon; 'ho only difference being that, instead of receiving It at the handa of one judge, there will be three; and these three judges wUl not, as now, be strangers, but be their own natural judges. The superiority of this system, which abolitthes ono degree of jurisdicUoa aad attains tho same ead, a docisioa by three judges, over the present one, which consUtutes a second court within the court itself, and aecessiutei two triaU tnatead of one, U apparent, not only for the rural districU, ipgii ijii fimn I PESFAOE. I Owing to the numbe.' >f judges appointed for the Courts of original jurisdiction, seven in Montreal, four in Quebec, and with two exceptions, one for every rural district, it would not b© difficult to carry out the proposal to suppress the Court of Review, to have three judges to decide in the Court of original jurisdiction, in all the districts of the pro- vince,* the merits of contested cases before the Superior Court, and to continue the competence of one judge for all other matters. The boundaries of all tbe districts, including those of Quebec and Montreal, and the powers and residence !| of the judges in each district continuing the same, the only change would be the division of the territory formmg the new districts, intof circuits {arrondissemeittt), each com- prising three adjacent districts. The judges of each circuit, continuing, as in the past, to discharge their functions m their own districts, should sit together during a certain num- ber of terms during the year, in each of the three districts m b^BO for thoso of the oUloi, which, with the exception of other realdonU not bolas obUired to loare the dlitrlct, auffer the some Incoayonlencos as the «)the™i and further, are often doprired of the -«moeg of their Judge, engaged la deciding outside litigation. ^ , . , ,...„. If in 1873, when the appointment of one judge was made for each rural distnct, which up to thattime had one judge forevery two district, this system, which la at once simple, efficient and practical from every pointof ylew, had been inaugurated, how many complaints, recriminations and ».in attempts at reform would hare been obviated. , . The idea of retalnlnff the system of a plurality of judges is not altogether • new one. The question was raised In the House in 1857, when the sysUm of dooontralliatlon was being discussed. If the Orders of the day for that session ftro consultod, a notice of motion will be found, to which the author of this report, who was then a member of the legislature, was not a stranger, to continue the old system of a plurality of judges In contested cases. But the Government of the day. not being then In a poslUon to appoint a sufficient number of Judges, opposed the moUon, and, as it could not be carried against the mlnUtry, it was dropped. • Gasp*, Saguenay, and Chlcontlml excepted. ♦ The word "cii cult "given as the translaUon of the word arrondu^tnt, ' Ml'- ->'* '«• annant&tion i> ooita diosrant *.f_l Jl.A meauA m uiiluu wf seTcrai judicial uutncwi from that which It ha« when applied to th« Oironlt Court • v«*?^^* JUDICIAL EKFOEMS. Ihr!l • / f'T"""- '^° *"* "f ^i^oh. composed of three judges, to be caUed the firet division and the «cond^p.esided over by one judge, to be caUed'thetco^' • Under the new organization, the districts of Quebec and the r urisdiotion, without pre-eminence over the oAer districts, wh,.h, with regard to the old districts would ha placed on a footing of equality. ' ^ All the districts, both old and new, would ha™ (I,. obhged to have recourse to outside courts, and the whole wuhout bemg compelled to submit to a second trkl Tefo t the Court of Eeview. which would then be saperfluouf With reejpect to the rural districts nn +i,n a which this Couit shall disappea^rX™ t'h t Z ^ e" ■ 'the Co^ T'r""" "'" *" f»»7 -mpleted. ' "' • /.°» 7"'°^ Koview, moreover, has been no less nr« judical fo the district, in which it sits, than to the otC d«trict„. I. It does not compel the parties to suit, before ' It to inconvenient and eipensive journeys, it none the Im subjects them to the costs of a useless trial. »«^ aIzI^T. .uito, i. the first Court, by overburdeain7tbe7rj;Z;' The «.periority of the proposed system over the pr„,nt !■ y»- |i'««»iyii» nj iii^ j^ iip ^ ^ p tarn <■■ . i n ■■■i f w yu i ^ 'gy ^ 'i 10 PBEFAOS. one, both as regards the celerity of the procednre, and the eSLciency of the judgments, will be shown when we treat in detail of the organization of the two divisions, in all the districts, and the division of the new districts into circuits. This system, which in the rural districts will require the co-operation of three judges in each circuit, and place their members of the bar in constant commu.'aication, will, in addition, have the advantage of remedying the defects, above noted, that have arisei out of their isolation, with respect to the uniformity of jurisprudence, the dignity of the bench and the elevation of the moral status of the legal profession. As it further necessitates the permanent sitting of one divi- sion of the Superior Court, and in the district of Montreal, of both divisions, the duties of the Court will require the whole time of the judges, who should be exempt from holding the Circuit Court, ^or the County Court, wuich is to replace that tribunal. This Court will be held by county judges, whose appoint- ment the Commission suggests as indispensable to the work- ing of the new organization. In its proper place, will be seen the plan for the organization of this Court, whose judges should also act as district magistrates in the circuits, (arrondissements) fulEl the duties of the second division, in the absence of the superior judges engaged in holding the first division, and preside, when necessary, when evidence is being taken. As already noticed, the institution of the office of advocate- general, to represent the government and supervise the administration of justice, an office which existed before the Union of 1841, but which has, for a long time, fallen into disuse, is a necessity that is now felt. The judicial province, divided for the hearing of cases in appeal, into two divisions, based upon its orij^inal diviuoa "' ■ *»1r.t 10 JUDICIAL EEPOEMS. Sou teal W ^ *" "^'^'r' "' Q-'l^" »d ">» «>iBWct of peals, and it ,» so also for tha Superior Oonrt. This fact il of no consequence for the former of these CrarUburL^ .0 for the latter, for the jurisdiction of the chlf^usl o purred" eXi'"' '" Z"^ P""""'' ^^^^ -i" »» rfWW f "''"f"'ff »«' fte whole province, is asource of trouble for the district in which he doei not reside a^.? Some other changes proposed by the scheme of re-oreani- .atioa wh.ch require the initiative of the judgS « fte cho.c«f assistant judges Ous„..uppJn,s'toCZ." from among the members of the bar,* T revival of the old prov^ions of the Judicature Actof i848. t"efiIgof ^o terms of the first division, in the districtsof Quebec and Montreal and in the circuits, are the principd „» which reqmre, as at present for the hearing „f^3Tn appeal tte division of the province into two gfand Sis I'nlf'f r. '^^■*^' "°'"'^"'"S "P»» » ParticukrTudg the htle of chief justice for the division in which the chlf rthl ""' "'T- -»»- »»' -ide. with powers 4^:' to those conferred upon or which may be conferred upon that officer, and which he will continue to zeroise in the /r^ktdltl':."'"'"""''^^-"'^''''"'^^'^-"*^"! for'^ftrL^r"°1 "'*•' P"^"~ '"'o ""> jori^otion, for these additional purposes, and the appointment of a second chief justice, who wiU. at Montreal, fulfil the duUe» now exercised by the chief justice of ie province. Z !i f: laemben of tha bar »n/i »»,-« •~'^"'.*"* juagea are to be chosen from the PBE7ACS. 11 which the latter will continue to exercise at Quebec, are two other refortns suggested by the Commission.'^' The cognizance of certain civil matters assigned, although exceptionally, to mixed tribunals, held by justices of the * Some persons maj perhaps find the appointmeat of two chief justices for the same court somewhat anomalous. But this is more apparent than real, it is not, properly speaking, the appointment of two chief justices that is required, but the appointment of one chief justice for a particular part of the province, whilst retaining the o£Bce of chief justice of the whole province or of the whole court. This was done for a long time. Under the system prior to the formation of the Superior Court, there was always a chief justice for the district of Quebec, and another for the district of Montreal. That for Quebec had the title of chief justice of the province, and that for Montreal, chief justice of Uontreal. There was, however, as at present, for the Superior Court, only one court for Cue country, the Court of King's Bench, divided into sections or districts. The terms of the ordinance of 1T65, called by old practitioners the "2Sth George III," and those of some subsequent Acts in stating "there shall be a Courtof King's Bench for the district of Quebec, and a Court of King's Bench for that of Montreal," each of these courts having special judges who had no jurisdiction in the other, seem > be contrary to the idea of the unity of the court. But if the substance, and not the letter of these provisions be considered, it will be seen that there was really only one court, that of the Court of King's Bench, composed of several tribunals sitting in ditforent places, as, apart from their territorial jurisdiction, the competence in civil and criminal matters of both these courts was the same throughout the province. Was not the Court of King's Bench, established at Three Rivers, and later at Sherbrooke, held by the judges of Quebec and Montreal, in addition to the resident judge and the provincial judge 7 Even if this interpretation were erroneous, is it not within the power of the legislature to enact that the Superior Court shall have two chief justices, one of whom would be called, the chief justice of the province, and tha other the chief justice of some particular district in the province, and whiUi preserving to the former his title, honors and prerogatives, confer some of bis fbnctiona upon tha chief justice of Montreal, within the extent of territory now within the jurisdiction of the Court of Appeal sitting in the latter city, which is in fine the object of tht proposed amendment 7 Call the chief justice of the provinc3 the first president, or simply the president of the Superior Court, and the chief justice of Montreal the second president or vice-president, and all misunderstanding would cease. Another bill annexed to this report enters into further details npoa the subject of the division of the province into two grand jurisdictions or divisions ; the nam* is of no moment. The bill for the creation of the office of Advocate-Oeneral, who is to be mover in the proceedings necessary to attain the purposes of thia divisioB, cempletes these details. 12 JUDICIAL EEF0EM8. I iif peace, and the jurisdiction civen to iha av^;« • , over n.a.te™-o„„„eotod wiehTa^U" r^ ^ITIS not escaped the reforms proposed oyttcZj^Z ™ rank wm is not without iutZZ^X^TZ: less to the nature of i.s functions than t^ the ZbZsZTt ^a^^dt^raced their exercise, the existing '^^iZ In view of the eventual incorporation of this bodv an ucorporat.on rendered necessary to raise it to a level wito the dafes to be imposed upon it by the new code an^^ to cousol^^au, the legislative provisions govirnt irwrn be submitted to yonr Honorable House. Coar'l^^f r "' "T''"'"" ""^ "■« P«>«d»« before the ' Court of Appeals also require amendment. These have n^t foIVlSf^'CV "'"'"" "'""' ""-""i^t'tiut J! +u i ;. ^ concurrence of the statutory aoDeal to the Pn vy Council and that to the Supreme Court Tan anomaly which should no longer be tolerated, and the former .hould be abohshed. as the latter is beyond our jurisdict!^:! . Trial by jury we should also aboHsh in all civil matters while retaining it in commercial cases. ' To remedy the s^-r^ses noted in the foreffoin --.-ta '»• •♦— " » »>"^i"- "»d to fllustrate its effects and reveal its •bafftotw. In tLa final dnA of the law iMpecting judicial worganiiatioa and • •■ '"I iiJWi. 1« jrUDIOUL BEFOmiS. a sum oi money or, anything of a pecuniary valut not eicceeding one hundred dollars, is claimed.t The procedure before this Court is summary. The want of a Court for the summary decision of smaU causes with jurisdiction over the whole province, has lon^ been fel The Commissioners' Cor.rt, an excep ionTtr^ S J ' ;"*f . '^ *'^ P^«^^^' «^^«-^«. ^ith local nil 1 ""'"'^ *' '''^'^'' *^""°"««' ^d special com- pe ence only over actions of debt up to the sum of $26, doe. not sahsfy this want. It is. in addition, presided over by men who are unacquainted withUe law. and it is not the court of summary jurisdiction required by the country. Tho Circuit Court, partly of original and partly of ultimate jurisdiction, a fadmg memory of a now forgotten epoch in t Under the new system there will hn a. r««.,«_ • j .Ah. cZfr ^S5^L. ; . '" f"'"l'<'i"«i«'i.» within ,h. «rtt«,tel lij^ ^ «»«». Which 4t :zzL"r^;^s. - »- ~^' "» iLi ij I' u m m II , '■'■ ." ■ ". ' ■ ■ "■ ' •••' . ••• ■ |n i» -i^ii ■ ■ J i "W i» " '«i illP HWHH ii . JUDIOIAL BSOnOANIZATION. 17 our judicial system'l^' is presided over, to the detriment of more important Courts, by the superior judges, which it takes away from their ordinary duties. The holding of this Court by these judges is, moreover, incompatible with the system proposed by the Commission, which requires the constant employment of their time for the business of their Court, and their continued presence at the chef-Ueu. Its tompetence, which includes suits for a sum of $200, exceeds also the powers of an inferior Court, and to obviate this anomaly, an appeal is allowed in cases from $100 to $200, an abuse whi^h the lowering of the compe- tence of the County Court, limited to suits for sums up to $100, will cause to disappear. The competence of this Court we have 5zed at $100, for we think that the decrease in the value of money has to-day reduced , that of $100 to at least ten pounds sterling, which was the figure of the competence of the inferior term of the King's Bench, estab- lished by the Legislative Council in 1785. Twenty pounds currency was the limit of the competence of the inTerior term of the Queen's Bench and of the Circuit Courts established by the Judicature Act of 1843. These courts were courtsof ultimate jurisdiction, as will be the County Court, in which the proceedings will be summary. Simplicity in the * It must bo rcmombered that tbo Circuit Court, borrowed from the Eaglish Judicial systom, was created before judicial decentralization, ut a time when the judges and advocates from the cities went to the country to Administer what might bo called ambulatory justice. The term "Circuit Court," therefore, does not now apply, and the term "County Court" would be much more suitable for that Court, whose jurisdiction extends over the county, as the term "District Court," which was for some time the name of tho courts of first instance in France then divided into districts, would be more suitable than the term "Superior Court" for our tribunals of original jurisdiction, whose territorial authority is limited by districts. A proposition in this sense will be made hereafter. It ia worthy of note that the name of DiEtrict Court was formerly given to our courts, and that it was only suppressed by lbs Judicature Act of 1843. ■■ ll>i u«!i,.,«i. 18 JUDICIAL EEFOEIIS. forms, and promptness in the despatch of business, are conditions essential to the nsefiilness of such a court. The county judge, who should be an advocate and in addition to being otherwise quaiiEed, should have five years practice at the bar or on the bench (the one being a complement of the other,) shall perform aU the duties required in non-contentious proceedings, and shall in contentious proceedings, replace the judge of the Superior Court, in case of absence orinabiUty, in all matters in the second division, whose powers, as will be seen, are limited to default cases and incidents of procedure. The want of a summary jurisdiction has long been felt in both crimi-al and civil proceedings. This want gave rise to the dis ct magistrates' court, in great part abolished after a few ,cais existence, . and which, by conferring on the county judge the powers of the district magistrate! the Commission proposes to re-establish. The competence of the County Court, therefore, would be that of the present Circuit Court, in cases of $100, with scarcely more than one modification, the abolition of the nght of evocation to the Superior Court in matters affect- ing real and future rights. There are too many degrees of jurisdiction in our ludi- cial organization. To state that an action for ^ fee of office, say that of a clerk claiming, five shillings for the st of a writ if his nght thereto is contested, or a real action, in which there is question of a pecuniary interest of twenty dollars a title is disputed, may run through four degrees of j ' tion in the province, not counting the aoDeal to th« V^.^y Council, and that to these five degrees, the Supreme Court adds a sixth. If an appeal is taken from the judgment of tha Court of Appeals, respecting a municipal by-law, however small the pecuniary or other interest of the parties in the '- J tr^''T'm^'W^mwmmw^^m'm I I JUDICIAL BEOBOiKIZATION. 19 question raised by snob contestation, is to sbew how defective is our judicial system in this Tespect. What a large field does it not open to the obstinacy of litigants, and -what a small guarantee does it aiford of the stability of the law?. .. ^ In the greater part of Europe, justice is rendered in two degrees. It is so in France, for the Cour de Cassation is not, properly speaking, a Oourt of Appeals, and, as a rule, it h the same in England. Two degrees exhaust the jurisdiction of the other provinces of the Confedeiation. In the legal world, there is scarcely any place, except tho Province of Quebec, in which the privilege of so many recourses exists, and which enjoys the luxury of four degrees of jurisdiction ; six degrees, if to those given by itself, are added the two that have been imposed upon it. One of these four degrees now consists in the evocation from the Circuit Court to the Superior Court, of cases, no matter how small the amount, arising out of fees of office, or revenues due to the Crown, or which affect the futuria rights of the parties, or titlee to real estate. This right of evocation, should doubtless be suppressed. In fine, in what does a fee of office, annual rent, future right, or right of property differ frc ^:/ o*her claim, when the value of the property, tl.; , oal pi tho rent, or the capitalized amount of th^ ^^s, ciaiiued, do not amount to the jurisdiction of the superior tribunal, and why, in such a case, should not the inferior Court be vested with ultimate jurisdiction, as in other actions of debt? What is the criterion of interest in all those cases, if it be not one of money, and why should the Court, which ul- timately decides pecuniary interests in the other cases, not decide equally in these ? The time has long passed in which certain Courts had privileged jurisdiction over special matters, outside of their x>ecauiary interest. I I lllll II >« ■>ii w iiitrp»^ ; 20 JUDIOIIL B^OIIMS It IS, therefore, .adeniable that the Court which has the power to finally decide the case of a party claiming the amount of a promissory note for fifty doUars, should "have the same power, when there is in question an immoveable property of the same value, a fee of office, or a rent, whose capitalized value or principal is worth only that sum. Let us proceed and see whether the same decision should not hold good when the Court is seized of an action for a fee of office, or arrears of rent, the amount of which is with- in its jurisdiction, but the capitalized amount or principal of which exceeds it, and whether it should remain seized of such a case without evocation? This second question is of more difficult solution. Two reasons are generally given in favor of evocation. The first is, that when an action for arrears of rent, below the jurisdiction of the Superior Court, but whose principal IS withm that jurisdiction, is brought before the Circuit Court, and the defendant, in his defence, aUeges the non- existence or the nullity of the deed constituting the rent, owing to the want of jurisdiction in the Court over the principal, the parties must be seat before judges who are competent to decide the question. The second is, that if a defendant were allowed to plead and have the question of the principal decided before the first Court, this judgment of a tribunal, incompetent raf/or^ materia:, would r >ne the less have the authority of res judicata, for the arrears as weU as the principal itself, and that the efiect of a judgment in &^ action for past would ' afiect future arrears, even in case^ in which there was no question of the principal. To the first- reason, the answer is, that the defendant, summoned before a court of limited jurisdiction, may plead in his defence, matters over which the Court would have no jurisdiction, if they had been invoked in the action; and to '•'I U I i'l If ,tft w« 9* " ^m'm ,.^^. ._ 1 1 u I II I - ■ I r 1 — pT" ^ , — Mi.^»M— » JUDXOUL SEOBOANIZitlGN. 21 the second, that a judgment for arreara haa not the effect of res judicata, with respect to the principal or subsequent arrears.* But, supposing! the first or second of these ^.nswers to be doubtful, or that both were so, it would be easy to intro- duce a special provision to remove the doubt, and enact that the inferior tribunal should have jurisdiction in these cases, without giving rise to res judicata, as resj?ects future cases. This would be all the more reasonable, as the procedure before the County Court being summary, and the contes- tation verbal, the authority of res judicata would have efiect anly when the same identical thing would be twice claimed,! which is not the case in question. There remains one other cause for evocation from the Circuit Court to the Superior Court, that of actions brought by the Crown to recover its revenue. This case may ibe assimilated to the others without infringing either the rights of the Crown or public law, for, al'^Jiough a law of public order, allowing the Sovereign che choice of tribunals, whatever may be the amount of the claim, is often invoked, there ' is no provision, either of public or common law, which derogates from the ordinary rules of the competence of the court in these cases. "We may then lay down, as a first reform on this point, the rule that no case brought before the County Court can be* • Merlin, Rep., Vo. chosa jug6e XL, 17 vide page 688. .Laurent 20, No. 36, 61. ' ' ^ Pothier, Obligations Nos. 889, et leq. Chose jag6e. t The authority of ret Judicata is either expressed or implied. I sue you a second time for something for which I have already sued you, and upoa which judgment intei^cned. Thit is ret judicata espressed. I sue you for one year's arrears of rent for which I had already sued you ia anotlierycar. If I have won or lostmycase on the same grounds which you invoice again in the second suit, the first judgment may create the authority of re* ^udica/a, bat implicitly. It therefore requires that the defence should show the identity of these reasons, which it could not do if such defence were verbal. iS **w«(;iwi;(5 n*'i»r*jKy^'tt ■jr|T-»r.-i»sr'- TY'>.---p',\ .-•^TT"^ 22 JUDICIAL RSFOEilS. evoked to a superior tribunal, with one exception," however, that ia which there is raised a question of the consti- tutionality of a federal or provincial statute. In this case, the right of evocation to the Superior Court may, be exercised, not de piano, as it now is, but in the discretion of the superior tribunal, which, according to the circumstances, may grant or refuse the evocation, with- out its judgment, in this respect, being subject to reform. ARTICLE 2, The jurisdiction of the Superior Court shall commence with cases of a pecuniary value exceeding $100* with ultimate jurisdiction up to ^500, and subject to appeal beyond that sum to the Court of Queen's Bench, which, for the future, shall be known in civil matters simjply under the name of "Court of Appeals." t By the proposed reduction in the competence of the County Court to $100, the cases of OlOO to 0200 will fall within the jurisdiction of the Superior Court. But as these cases, unless otherwise provided, are as other matters be- fore the latter Court, within the jurisdiction of the Court of Appeals, it is necessary to show that cases of such small • The compotcnco of the Circuit Court was already reduced in 1870 from $200 to SlOO in the districU of Quebec and Moutroal, under the prosont law wlilch requires that Court to bo held by a Superior Court judKo. This reduction should thorefoi-o with greatorroosoa bo made under a system which confers this Jurisdiction upon an inferior Judge. t The Court of Appeals is now called "The Court of Queen's Bench— Appeal side." Should not this clumsy name give place to the moro simple and correct name of "Court of Appeals," which is the name under which CourU of Appeal are ovorywhoro known, and which was that of the first court of soynrei"" jurisdiction ostabUshed in thli province in 1784 ? 1 1 :'r" n ' ill' I •iPiiwr""^'^'"^*" lll,W,« J-'^S^^t'*", W W of the parties, we sV uld, in case of doubt allow, it f om °11 judgments. The criterion of the appeal .s the reblion of the amount in dispute to the costs. The legidature should not. by allowing frivolous appeals. "P"" P"^" ^ costs disproportioned to the matter in litigation and which mi-'ht equal or even exceed it in amount Tho Commission U of opinion that the restnc ion of the right of appeal to actions exceeding «500 would answer Z requirements of this rule. .The appeal in per^al actions of $500 and under would therefore be taken away.. We will enter into more ample details upon the improve- ZLZZ be made in appeal, when we treat of the reform of n° ml: »P^ion of the Court of Review « follow. that appeals wiU be taken direcUy from the coj^t o onginal iurisdFctiontotheCourtotAppealsintheprov.nce,inwhich ■ justice will henceforward be rendered in two degrees. \, t '. • w ; i ,: ,,>',{ ,,i... ;..;*.:.;.!;. ' .,.,.■•'. .... ^;.--i'': '!'^' ■■■! .S '■•I'lit .. ■ • yn'-ff^i'''vrfyrm-nr'in.f 24 'JUDICIAL EEP0IIM8, ARTICLE 8. abolished, but which a nrr,,TV" *''^''''' "^^^^ '» ^"^ and falsehood in this idea of th. ^ . " '"'* '™"» legislatares over Jpf^ LllT^'^T^''^^''^''''^ Sovereign. ^^ *" *''' ^"'T Counoil of the ablh thrri^huf:;;;^^:?" "'' "^^ ''-« *» an attribute 5 the prefo^ti™!?K"''^"' <=™»''^^^^d " • >dg„,ents of the eCf aid of T=" '"'°'' "^ '" further appeal :,nt"e'ietanne:^"f,"':'" -'"^out to withdraw the right of everTrbTeoT 1 T ~"?P"'"' aggrieved, of plaoi^g his ^:^^f^':[Z^:^:T^^'^-"^ asking for redress Thi«. T^^ i ® Inrone and mqmry. and does not stay the fxeZtSn ^f ^1'^*'' ^"^ after it is allowed, is altog^Snt ff ^^^^^^ T"" appeal created by the legislature itse^ dhTi, ^'^^^^ 'fe i^/ano. and wl ck suspends tL^f* ^ '' "^"'"^^^^ of Appeals from the Z'^^ee'i:^^^^ '' *'^ ^°^^* statutory appeal created bvifT- 1 ' ^^^ ""• ^* ^« ^^^^ should be Tbolishcd ^'>^«i>ssion recommends stitutes a third dC^ of W^'^^ ^'^r^*' ^^ i* <>o^- ri^ht tn M„.i, ^^^ ^'^ jurisdiction which right to touch. have no li I ' I f' lift I rs •^©tooe (SrjpyXnQif) Qpr^nUsion for] ■codification nf th-i nt,'\ttitea> Judlolal refurcis proposed, by Commission for the codification oil the statutes. First [- report ... QMebdOf 16<$2« V ■ ■ . LL Ja ^-V3 h unb. Ill ,•1 ! ;! i Mi i f i l l ' . ' . ■ «j »i>i n »»<»TT*'»^ """, ' ' " ii" ! l y II ■ : ment. Cannot this judgment entirely overlook the report of the experts or the account «o rendered ....set aside the evidence obtained in this irregular manner, and dismiss the lii; ■■7 " 'Ti •*• ■'•* ■• •;■■■ r»rpN*rwr-"t i"^iii nyt r< ' ^ w » | i T ^BWr ISA 28 J0D1OUL EEJ-OfiMS. pretensions of the party who had no other means of sustain- ing them. "What, in such a case, will the party, who has obtained . permission to take these irrogular proceedings, do, when he sees himself deprived of all advantage from them ? He will then do as he, would to-day, if this proceeding had been refused by the interlocutory judgment, confirmed by the final judgment (for article 1116 gives no appeal when the thing asked for, and which the final judgment cannot remedy, has been refused) ; he will appeal from this final judgment, in the same manner as a party against whom evidence, which he considers illegal, has been allowed, and the Court of Appeals will order such evidence that has been rejected, to be taken, or confirm the judgment reje?.t- • ing it. The same would apply to improbation, reference to ' experts, and other similar cases. To this the objection may be taken that it exposes the party to costs for evidence and proceedings, which would be altogether lost, if such evidence or proceedings are set aside. This may be a serious inconvenience, but if it is com- pared with the incidental proceedings in appeal, which may last for years, during which the main case is suspended, especially when we consider that this appeal is not exercised de piano, but must be obtained, with full cognizance of the matter, by means of a technical ai-d com- plicated procedure, it will be found that, as respects costs and delay, the greatest inconvenience arises from the present system. In face of such a result, it would be difficult to favorably ^ view the fourth category of article 1116, allowing an appeal from a judgment which unnecessarily delays the trial of the suit. ~' - ■ ' ■ a I II iL'if/ Ifli ' I """ ■ ' •^•■^••"■W^T mwii y i'i ■■ " '" '■ JTJDIOUL REOROINIZJLTION, 29 ! i A singular manner of avoiding the delays of a suit, to hasten it by another ! ^i it not, in all respects, a remedy worse than the disease ? In place of taking to the Court of Appeals an inter- locutory judgment rendered by the second division, held by one judge, the Commission proposes to substitute, in the xBases in which euch appeal is now allowed, a revision before the first division, which is presided over by three judges.'* ^ •T^ere are, however, judgmcnU which are InUrlocutory In form, as they do not finaUyd^ddeallthe p^inU ia a case and do not terminate .t,wh.ch none h. finally **"'''^J" V ^i,,„ ^^ action of separation from bed and board, or of less doc.de the menu as w^^^^^^ 7:::ZX^'^^S:^^oa o7the matrimonial righU of the consorts, and ia *1.^ritir;::rL^^^^^^^^ and m othcrsimiiar cases the Judgment i. It .s e^'.*!*""' Y" ,,. .^. „.oie depends upon the execution of the interlocutory XrinTJharn'XTuIaJiudgme^tcan remedy the inju.. sulTered by ^^ttmtiirceStiir^^^^^ ment. have a dcfia Uve character, by their iffoct upon the incident disposed of by Them such a^rovsLal^ Tnhnih these cases, the injury caused by a judgment, which, in rejecting a rind t^ Bottide re FOvisionaT measure, would have the effect of depriving frirllnt of hU liberty or of the enjoyment of hi. property, during the progre^^ of the uft wtfeh^^^^^^^^^ t'be petition to set aside such conservatory proceedings wluld deprive the creditor of his recourse against the person o • J^^pcrty of his debtor, iho may fly the country or dissipate such property, cannot ^r:Sbr^:irrSr judgment in both the. cases, a, deCnitive or Ztleasf no appeal had taken place; in case the provisional measure « continue as u uu aar' „«,aitnr never had recourse thereto. If the 80 JUDICIAL BEFOBMS. ARTICLE 6. The Court of Review is suppreseed. To thoroughly understand tho reasons for the suppression of the Court of Review, apart from those already given, it is necessary to refer to the origin of this court and the causes which led to its institution. Until the Judicature Act of 1857, which decentralized justice and created new districts, the Superior Court, and beforo it the Court of Queen's Bench, sitting as a court of original jurisdiction, had always been presided over by three or lour judges, four in Quebec and Montreal, and three in Three Rivers and St. Francis. , The division of Lower Canada into twenty districts, made the former system of holding the courts with several, judges impossible, and forcibly imposed the injudicious system of a single judge, condemned by the majority of authors and by our experience in this country. A modem venter # says : // est dangereux de meiire entre let nioins dun seulfuffe, la vie et la fortune des citoi/ens. And an old saying of the French courts was : Fol est lejuge qui seuljuge. confirming the judgment upon the incident, although not entering into tho mcrita of tUo appeal, which would become useless, and as such, would bo disallowed but with costs, against tho creditor. It will bo further seen in these latter case., chat, to the impossibility of repairing tho injury caused by the first judgment, without a right of appeal, there is added another circumstance which distinguishes them, from ordinary judgmonta on intidontal proceedings, that is, that the appeal docs not necessarily suspend tho trial, aad this suspension is left to tho decision of the first division and is discre- tionary with that court. 4 We will defer ihe further consideration of the ruleq arising from these distinc- tions, until wo treat of tho power of revision over interlocutoty judgments of tho ■ecdnd division, in tho title of judgments. • M. Bergson, Origineg da Droit Civil moderue de I'Burope, p. WT. • >i I W\ I h 1 ■f " '^^^y niSIOIlI> BSOSOANIZATION. tl It is true that as an objection to a plurality of judges, the eiMupU of England is given, where one judge presides at the trial. But it must not be forgotten that hi. tna^ « » trial by jury, in which thejuroisarejudgesotthe fact, that the funotions of the judge are confined to laying down the . law. and especially that the judgment on the verdict and upon the quesdons of law that have been re of Iberville is given to th" fourth, on account of if rekUre importance and central posiUon in the group i.U' If « p 'M 'iii JtJDlCUL BSOEGANll&AtlOK. 37 The entire range of the changes introduced in the organ- ization of the Superior Court, is briefly set forth in these ^Thradvantage of suhstitxiting the first division for the Court of Review, cannot be doubted. This substitution takes away one degree of jurisdiction, and, in consequence, ezempts suitors from the e::penso and loss of time occasion- ed by a second trial. In the rural districts, the cases will, instead of necessitating the transmission of the records, and occasioning expensive journeys to the parties be decided on the spot. Each case will be finally decided before its own Court and home judges, as for the purposes of the first dinsion. the three judges of the circuit shall form a dis met tribunal for each district, and the three districts shall bo dieir common care, as each district will, for the purposes of the second division, remain the special charge of the resident ^""tMs centralization of the justice of three districts into one circuit, would be the complement of the judicial decen- tralization, carried out in the province twenty-fivo years ao-o and the sequel and perfection of that system, es pecially as the proposed plan requires, to avoid aestroymg its equilibrium, the residence of a judge m each district, and especially in the districts of Terrebonne and Beauce, in which there are none now. From another and an outside point of view, but one which is not without its weight, the holding of these Courts by three judges in the new districts, unaccustomed to the solemnity of such Courts, can serve but to add additional lustre to the administration of justice and in- crease its moral influence. The new sections of th^bar. lowered by the now too-carelessly accepted idea that they are inferior to the older ones, awakened by a legitimate emulation to a sense of their worth, would floon assume their pr brethre: Thos( of justic created and the only, hi 1857, ar minglinj for the p ambitiox would ii The r which 1 the pres paralyze general : the judg is embar] Gtitute tl system, o once, thi to decide at all tL European countries One of ner, is als( the merit The ler delays in of time U the plagu defect in t 88 JUDICIAL BEFOEMS. their proper position in their profession, and rank with their brethren of the older sections. Those who recollect the time before the decentralization of justice, who would wish to have an idea of the emulation created by a Court presided over by three or four jud-es and the apathy produced by a Court presided over by one only, have only to recall the meetings of the Courts before 1857. and compare them with those of to-day. The stran-e mmglmg of puerile regrets for the past with unjust blai^e tor the present, has only one object, that of causing the noble ambition, with which the introduction of the new system would inspire the legal profession, to be understood. The public examination of witnesses before the Court which hears contested cases on the merits, exists under the present system, but there are defects in it which paralyze its usefulness and destroys its efficiency. The general rule, laid down in the Code of Procedure, obli-es the judge to take notes of the oral testimony, but this rule is embarrassed by exceptions, which allow parties to sub. Gtitute the taking of evidence privately, as under the old system, or to proceed before the judge with several cases at once, thus requiring the participation of the Court, only to decide objections and close the depositions. This is not at all the taking of evidence before the Court, which European publicists and the judicial experience of all countries agree in pronouncing excellent. One of the defects of the taking of evidence in this man- ner, is also the long delay between it and the hearing on the merits and the judgment. The length of suits arises, in a great measure, from the delays m the trial under these conditions, and the length ot time tai:en in adducing evidence. The latter abuse is the pkgae of the administration of justice. The chief astec. m tue present system is to aUow the evidence to be i I fill JUDICIAL EEOEGANIZITION. 89 ■; 1: •1 taken at the pleasvre of the parties, who increase its volume and delay it by prolonged postponements, either a-reed npon, or obtained from the courts for futile reasons. The costs of taking evid. chis country amount to a fabulous sum, and hav« t. . .come a judicial cakmi y. The remedy for this continually increasing evil will be found in the fact that parties wiU be compelled to proceed strictly, within the delays, to the adduction of evidence, before the court, and without any interval, to the hearing upon the merits. We will see later that the judgment itself shall, unless under exceptional circumstances, be given •within short delays. • xi. Is there nothing fatal to public order in cases, even the most unimportant, being, without any cause, put off from term ^o term, prolonged from year to year, and continued frou. aecade to decade ? Is it not stranger still that with such good laws to protect the basis of the law, we l^ave «ome that are so unfitted to regulate its practice, and that amono-st the numerous statutes passed to reform our judicial procedure, it has never entered the mind of our legislators to pass one to make cases proceed compnlsonly, and thereby shorten them ? , , i. • i *. Let it not be objected that such an act would be a violent one and an attack upon individual liberty! There ^no lib- erty in indefinitely delaying the work of justice. J^^oever claims before the courts the exercise of a right, should be anxious to obtain it. and if he regrets having gone to law, the litigant should soon wish to be out of it. Few have become rich thereby. . ^i. i • nff This remark is addressed to both parUes; to the plaintiff who should not allow his claim to rest, and to the defendMit who should not have the power to escape from it by indefinitely delaying payment Every law based on a prm- ciple opposed to such a result, would thereioro uo. oiuy &e 40 proper 1 mission Accoi in the 1] at the ] their en Again pressing other ur common even in < these au( But let M OE! Outsid( indefinite hinder th their issu( 1. The intervals, 2. The eive multi 8. The jurisprude of t ie subi We will their prop< THE T< Under t permanenci 40 *tJDtClA.L feEFORJid. proper but judicious, and it is such a law that the Coni. mission proposes. According to the proposed measure, no case should last m the l^rst court more than two or three terms, one year at the longest, and, as a general rule, the term next after their entry mto court should see the greater part closed Agam, this delay of a year should not be allowed 'for pressing matters, and those of a commercial nature and . other urgent cases, which in aU Codes of Procedure are commonly called Summary, and which are not unknown even in our own system, although the difference between these and other matters is not very distinctly characterized. i>ut let us not anticipate. OENERAL CAUSES FOE THE DELAYS IN SUITS. Outside the abuse arising from arbitrary delays and indefinite postponements, three different kinds of obstacles hmder the progress of cases before the courts, and delay ' their issue : ^•°>-o.y 1. The t^o infrequent holding, and that at too Ion- ^ mtervals, of the courts; "^ 2. The too long and too numerous delays, and the exces- sive multiplicity of forms ; > . u me exces 3. The formal and dilatory nature of our system of junsprudence, which pays more attention to the form than of tie substance. We will treat of these defects in their order and indicate their proposed remedy. maicate I. THE TOO INFEEQUENT HOLDING OF THE OOURTS. Under the French domination, the civil tribunals satin permanence, or at least every week. This was also the JUblCUt tllil0BClANl2A.Tl0N. 41 t'Hi . 1 I llir ' ill practice for the courta in France. As distinguished from this system, we have that of Term, used in England Under the first system, the courts are open during the whole judicial year, and they sit every day, or every week ■ Lin A certain number of days determined by the pubhc , requirements; the rule is that every day of the year is a dTfor hearing cases or for the sitting of the court; we htre use the w^rd "court day." borrowed from the Enghsh '^irEn<^land the permanent holding of the courts is incompatible with trial by jury before the Cou.t of i^m Prius sittin- at regular and periodical intervals and under SsaicSon of°the High Courts held at Wes^mst^ Hall These latter courts, deciding upon the verdict can only sit after the assizes, and divide, their sittmgs mto as many terms as there are assizes. , , , ,. ^c.u^ The system of terms and the permanent holdmg of the courU are irreconcilable with trial by jury. In the English practice, the holding of the courts is so inseparable from L ternls that we can hardly think of one without asso- ciatin- it with the other, and these two words are, so to ^^£:Co'T;s^nis have in turn formed part of our system. We had the permanent holding of the courts under the French system, and the English system gave us terms. Is it not, however, evident that ^^^^o^'^J"^ which trial by jury is not the ordinary method o trial in civil cases, in which in all cases the evidence is taken and the argument heard before the same court, at the same time, Ind before the same judges, where law and fact are mixed, this system, which is pregnant with anomalies, is nonsensical and ends by being absurd ? ^ ^ It established the taking of evidence pnvaicly, lep.avxnii the courts of nisi prius by th^ court for the adduction of . 1' I i 42 evidenc is true, know ai are told called u judge in oharaoto which, b and prac its indis] This t court, an hear the immedia' to its effi for the a( court car Under day in th them du they take Under year, thr( of terms, two term term folic Before Montreal terms fix days each lengthen ; on the m ha vino* b( the ezcepi 3 ii *I1l 42 JUpICIAL REFORMS. evidence. The courts for the adduction of evidence are, it 18 true, presided over by judges, but by judges who do not know anything of the evidence adduced save what they are told when objoct.'oiis are raised, and which they arc . caUod upon to decide. This distant participation of the judge m the taking of the evidence cannot give to it the character of evidence publicly taken before the court, and which, by common consent, is recognized both by theory and practice, as superior to evidence privately taken, end Its mdisponsability proclaimed. / . u This adduction of evidence publicly taken, sitting the court and under the eyes of the judges who both see and hear the witnesses, whose depositions they dictate, and immediately followed by the heanng ^a condition necessary to 18 efficiency) and the system under which separate terms for the adduction of evidence are the only times when the court can lawfully be held, are incompatible. Under the permanent system, the courts hear cases every day m the year, or the first day of each week, and decide them during the same week, the latter portion of which they take to decide the cases heard in the former Under the system of terms, the courts devote, out of every year, three, four or five months, according to the number of terms, to the hearing of cases, and the interval between wo terms to deliberate, and render judgment during the term following such deliberation. Before the decentralization of justice, the practice at Montreal was as follows: There were every year four terms fixed by law, lasting from twenty to twenty-five days each, and which the judges could neither shorten or lengthen; each term was exclusively devoted to hearin-s on the merits and on incidental proceedings, the evidence ° ".' ^^ «u.iii^ «-"« preceamg vacation. "With the exception of some routine proceedings, it was unheard ilT II •judicial reoroanization. 48 of that a case, even for hearing in law or any other incident, should bo decided before the term folloxving that m vrhich it was hoard, and very often before several terms. At the end of every term, the forty, fifty, sixty or more cases heard during tho term would bo placed under advioomont and ono of tho judges would hold a court for taking evidence during about twelve days in tho vacation, during whicH time also tho jury cases would be tried. Can there bo any difficulty in choosing between those . two systems, in ono of which cases are decided the day following, or within two or threo days after the hearing, while, in the other, cases are kept under advisement, during one or two months after the hearing, and then judgment is rendered in three or six months later. , ^ , . It is true, that recent statutes, in which, although not formally enacted and even vaguely noticed, the idea of permanent sittings appear., have considerably modified the old system, by allowing judges to fix special terms or to prolong the regular terms, with the option of rendenng [udgm:nts in vacation, and have so remedied or furnish- ed the means of remedying, the most striking defects of the system, but it is none the less true, that the new laws have left the principle still in force, that a limited Pax of that judicial year alone constitutes the Court ^Y'' *^,1k ! others are dies non or non- juridical days, and that those not specially indicated as juridical days, are not Court ^"instead of being an exception and requiring a special provision to give them their juridical character, f the V e 4 e it 5:- ■■,y e 1^ , >e ft al * ^8 id ■ ■ ■ .* 44 JUDtCUL ftEFORJid. and even during such vacation, the judges will be obliged to sit, when there is business before the Court. The permanent holding of the second division, will not be difficult in the city districts. There will always be a seventh judge at Montreal and a fourth at Quebec, to per- form this duty, and, in the circuit districts, the judge in each district, who, in his absence, will bo replaced by the county judge, will remain long enough at the chef-lieu, bt;twMn the sittings of the first division, held in the other districts of the circuit, (arronclissemeni) to perform the duties of the second. The despatch of business will be further facilitated by the option given in the scheme proposed by the Comir.ission, to the judge to decide in chambers the greater part of the business of this division. As to the permanent holding of the first division, it will not cause great inconvenience at Quebec and Montreal, in which three in the former and six in the latter place, will be always at hand, as they are not obliged to hold the lower court. It cannot be so. on account of the separation of the judges, and it is not necessary that it should be so, for the first division in the circuits. In these districts, Uie business of this first division, confined to the taking of evidence and hearings on the merits, with a few rovFews of judgments rondoicd by the fiocond diviaion, will not bo very lui-go. The taking of the ovidonco itaoU, which should not bo considered such a ibrmidublo matter, reduced to its proper proportions, and going only into facts pertinent to the issue, will be comparatively easy and of short duration, when simplified by the articulation of facts, suggested by the the Commission, that is, a real articulation in place of the sham one which now bears that name, in which parties kept within proper bounds by the threat of severe I'll m 1:11 ¥. JUDIOIJLL BEOHaiNlZATlOM. 46 I ! penalties against bad faith, will deny only Bcch facta as are really in dispute. ,. ^ i r* *v,- The hearing on the merits, coming immediately after the evidence, before the judges before whom it was taken, and who. in consequence, understand the case as well as the advocates themselves, wiU take place under similar con- ^Tin addition to the facilities afforded tho Courts for the prompt despatch of business in the circuits, we take into account the limited number of complicated suits or suits of Ion- duration that are brought within their jurisdiction, we would see, and a long judicial experience m the dis- tricts, that are to form the circuits, has convinced the Commissioner, that three terms of the arst division^ of^ten or twelve days each, held every third month in eac^ cxihe districts, would be amply sufficient to dispose of the business. This would reduce the absence of the judge from nis district to sixty or seventy days, during which he would be replaced by the county judge,4t and during the rest of the year he will be able to attend to the business of the second division and the Criminal Court, whose two terms last barely eight days each in these districts. From a personal point of view, the enforced absence of the jud'^es, to hold the first division in the two districts of their circuit away from their residonce, an absonca of short duration compared to tho roquiromonts of tho old eystom, under which thoy woro absont during sis months oi tho year, will bo rendered much eaaior to boar, owing to tho facilities of communication, as, in more than half the cases, they may leave for the chef-lieu of the outside district the TZ as to make this officer as useful an auiilia^ to tho supcifJor judges, as the Commission expects, care should be taken not to fix the terms of the County Court in the circuits, during the holding of the first diriwon, when two of the judges are absent from their residence and the time of the third is occupied. evenm We Chamb divisioi to hold settling and oth The Code oi proceed in chan attendin Each propose< the ser^ to his ov Courts. of the lo^ inopporti diction, Appeal C be chose: as is don country. : The mi judges, ( referring their notr justice an represonti within th By all t manent h< in the circ M 46 JUDICIAL EEFOEMS. evening before or the morning of the holding of the Court We have just stated that the judge would dispose in Chambers of the greater part of the ousiness of the second' division. In effect, whatisthegoodofcompoUingthe jud-es , to hold a Court for default cases, motions of course the settUng of articulations of facts, the appointment of experts and other similar incidents. The rule proposed on this point is that whenever the Code of Procedure does not prescribe that any incidental proceeding shall be heard before the Court, it may be heard in chambers, and, if circumstances prevent the jud-e from attending m chambers, then at the residence of the judffe Each district, including Montreal, having, under the proposed plan, a sufficient number of judges at its disposal the services of each judge are to be exclusively devoted to his own jurisdiction, and cannot be required for outside Courts In place of taking them from among the jud-es 0. the lower court and thus expose the ordinary jud-es°to inopportune removal and disturb the service in each^uris- diction, under this system, the assistant jud'^es for the Appeal Court and for the court of original jurisdiction, shall be chosen from among the senior advocates and counsel as IS done m France, and has already been done in this' country, to the satisfaction of both bench and bar The manner of replacing incompetent judges by assistant judges, UugessuppUantii) will be shewn in the articles referrmg to the duties of the advocate-general. upon whom their nomination will devolve, in concert with the chief justice and puisn6 judges, the bdtonniers of sections and representatives of the l)ar not incorporated into sections within the jurisdiction in which such replacing is required' By aU these reasons, therefore, it is proved that the per- manent holding of the first division is not more difficult in the circuits than in the old districts. '1 » i JUDICIAL BEOEGANIZATION. 47 We have stated above, that every day in the year shall, unless excepted, be a "court day "for both divisions. We have just shown that no exception is necessary for the second division, which should sit in chambers or in court every day in the year on which there is business to be at- tended to, and have added that every proceeding' within the jurisdiction of this division may, with the exception of certain cases noted as those to be heard in Court, be heard in chamberB. or at thejudge's residence, if required. . It is not so with the first division, which should not be required to sit, except during a part of the year proportion- ate CO the time at the disposal of the judges and to the amount of business in each district, in which, as a rule, they should sit in open Court.* . Besides, the fact that this proportion vanes m the differ- ent districts, and that it would be difficult to base a calcu- lation of the time, during which such division should sit, upon the actual number of cases in .each, this number may vary from year to year and require the calculation to be modified; it would not, therefore, be judicious to estabhsh an absolute rule for the duration of the terms in each city- district and each circuit. It is better to allow the Courts themselves to fix the terms, as they know the wants of Uieir jurisdictions, with power to modify the tables of terms here- alter, if circumstances reqmre it. The Commission, on this point, proposes the following: In the jurisdictions of Quebec and Montreal, the chief justice of the province or the chief justice of Montreal and the pu8in6 judges of either of the two districts and of the five circuits at a conference held in the cities of Quebec and Montreal, at which conference shall attend the advocate- "extraordinaiy caseB. or whea the interesU of the parties ^J»^«^^ f^ pubUc service require it, the first divisiou may hear cases out of Court, but this excepUon shall only be allowed in cases of urgency. THE MUL': 48 JUDICIAL EEFOHMS. general and baiouniers ofeaohof the two city distriol» and for the oronits. the same advooate-gener/or h„t^ TZ'f °"';" ^"'"' -'IStFrancCndanldvo.af: cho en for each circuit, in which there is no district iTrin ■ d"ate ::r •"" r"'°^ *^'p"p«" 'abTco t:Lrf datoand auration of the termn nf +1,^ c" x ,.'^'^"^06^, e^h of the two City dt^rLd^ffr^a'ch i^r°Vh table shall be forwarded to the Govemmelandt It? or without amendment, put into force bTpJataSon Th.s conlorence for each jurisdiction sU be Teld and the convocahon of the judges, batonnier, and ritcatj shdl be made at the instance of the AdTOcate-GenTrlT Notwahstanding this table, and outside the fixed periods the judge^may of theirown accord, hold sittings of fhefirst dlv,s.o„ ,„ each of the two city districts, »d in f^v ou-cmt districts where these special sitt ngs m" S ' necessary, and it shall even be their dnt„ tfi. Tf ^ , sU.ng,iftheycandoso,w,thoutimrosfn7toom'ul'rt upon themselves, or interfering with ordinlry business t shall also be lawful for the judges, in the eventTf the roll being exhausted, to shorten the terms le&re tte expiration of the period fixed by the table, as it wTuldt theirduty to continue the terms if these rolls arlnot ex- hausted and If there was still business before the court b , m the circuit districts, this shortening of 4e term°^ . ta>:e place so long as there are oases-u^defadrmer"' II. P.. THE MULTlPUOIir OF DELAVS AND THE OOMPtlOAT.ON OP FOEMS. We miist now show, that, notwithstanding the reor^.n ' ization of the courts, they can onlv rend J If a^ : inefficient justice., owin, fo tho c^r.^^^.^^^^^^^ I: I ' k ii I ^ '<«MV**IMMW««fW ' '' I JUDIOUL BEOBOANIZATION. 49 of the procedure now followed, based upon old ordinances and especially upon that of 1667, unless in reforming such procedure to make it suitable to the requirements of the age, we give it what it now lacks, promptness and simplicity. The ordinance of 1667, whoso chief merit was to render procedure uniform and to reduce it to a general and regu- lar system, applicable to all the courts in France, up to that time governed by different usages, vraa, notwithstanding its superiority over previous laws, iar from being a perfect work. This ordinance, almost our sole Judicature Act under the old system, was not suited to the wants of a new country and the simplicity of its social relations. Apart from the organization of our courts, baced upon the judicial system of England and certain forms of pro- cedure, special to the English practice, the Judicature Acts of the province are, however, based upon that ordinance which was in full force at the time of the promulgation of the Code of Civil Procedure in 1867, two centuries after that of the ordinance. In place of containing the reorganization of the judicial . system of the province and a reform of the procedure of its courts, to render it equal to the requirements of the time and the tendencies of a new social condition, the Code of Civil Procedure was only a consolidation of the old ordinance and our ancient laws, and a blending of their provisions by means of a few amendments introduced to £11 up gaps and hide its defects. This view of the character of the code is admitted in the re£>ort of the Commissioners themselves.* ' As a theoretical view of the law, and as a memory of judicial traditions, the Code of Procedure may be * See the eighth report of the Commiauonera. ?«£« VIII. 4 60 JTJDIOIAL REFOSMS. considered as a remarkable work, but as a syctom of judicial practice, which should have aim at the shortonin^ of ouita, the simplicity of their forms and their prompt dcciaion, it was a work of no practical utility and it io now out of date. It must therefore be reformed, commoncin^j with the shortening of the delays of the three principal phases of procedure, summons, contestation, and proof. OF SUMMONS. It is unnecessary to state that the delays upon summons, fixed at a time when travelling through the country took as many days as it now takes hours, and tho£se of the contestation which, under most favorable circumstances, take two months and over, greatly delay the progress of cases. Add to these delays the suspension of proceedings occacioned by pre- liminary exceptions, and we have, as a result, a year of litigation before proof can be adduced. The Oommicsion proposes to reduce the delays on summons to a fixed term of eight days, wherever made and whatever may be the distance from the place of coiTico to the court whence it iosues, increased by a ftirthor delay of six days to plead to the merits, and of three days only to produce preliminary exceptions.'!* •Under the procedure augfjeated for summons and contcfiUtioo, the return day of the writ will not be mentioned in it In accordance with the practico .ntroduced by the new Judicature Acta now in force in Encland, adopted by the ProTinco of Ontario, and which have for a long time bcon in nee in Prance; the do.ondant ia Bummonod to appear within the delay fixed by law, that ia to oar .ccord.n2 to article 12, within eight daya after the service of the summons. Within these eight days the plaintiar returns his action, and if he does not. a certificate of default and nonsuit is taken against him, and when the writ is returaed, if within this delay of eight days, increased by the delay allowed to p ead, the defendant has not appeared or pleaded, proceedings ar« had against him by default. In fact the defendant has the same delay to appear a. to plead »nd both ECU may be dona at once. pj'"*!- as w picaa, Th««dTftDUg«ofthlslnaoratlon, with • rlewof r««ktlng the proceedins. I il ;^ ii'i; JUDICIAL EEOEajLNIZATION. 51 The foilowing articles of the Code exprosa its views. ARTICLE 12. Wherever may be the place in the province in which a Bummons is served, within the jurisdiction of the Court or in another juriedictjon, and whatever may be the distance of such place from the 0;)urt before which the defendant is summoned, the de- lay on the summons shall be eight days, without any additional delay by reason of the distance between the place of service and the Court. ARTICLE 18. Within this delay, increased by the delay to plead, which is three days for the production of prelimi- nary exceptions, and six for picas to the merits, the defendant must appear and plead his prelimi- > nary exceptions or to the moritS; as the case may bo. ARTICLE 14. If, withiii the eleven days after the service of the sum- mons, the defendant has not appeared, or if he hca more simple and rapid is plain; ii is also a means of ovcrcombi; the artificci of a fraudulent debtor who, knowing that a writ has been icaucd 0£alc8t him and that it must be served withm a short -delay, hides hicyjolf daring th» short Ume required lor the service, and compels the creditor to take a now writ A stranger amenable In certain cases to the jurisdiction of ourcoorti, U only to make a short sUy in the province. His creditor takes a writ in advanco and hoi hija served during his stay, which is otherwise too short to allow htm to take bli writ and have it served, and so in olaer cases. The duration of the writ' should, however, bo limited. Undar the EnjILh statute It lasU six months, aft«r w^oh, If It ha* not b«eB wmd, it nauit U ie&«wcd. *2 JUDICIAL HEFORUS. appeared and has not produced a preliminary ex- ception, he is de plcno jure dQ^^vived of the right ^ to produce itj no such preliminary osception shall be, under any pretext, allowed after the ex- piration of the time fixed, and the foreclosure/ shall be absolute. ARTICLE 15. If the defendant has appeared within the delay of eleven days and has not produced preliminary exceptions, he has an additional delay of three days, after the expiration of the eleven days, to plead to the merits, and, if within these eleven days, he haa not appeared, he has the same delay of three days to appear and plead to the merita, and if, at the expiration of fourteen days after the service of the summons, he has not appeared, a default to appear is established against him, and he shall be proceeded against by default. ARTICLE 16. If he haa appeared but has not pleaded, he is likewise • deprived of his right to do so, and he is proceeded against «j?^ar/tf. ARTICLE 17. In the case of preliminary exceptions, the delay of six days to plead. to the merits only begins to run , from the day upon which they are disposed of. I .^ ttrn m nr fi •: JXTDIOIAL BEOROANIZITION. ' * ARTICLE 18. 58 'I! If a defendant has several of these exceptions to set up, he must allege them all at once and in the same plea, notwithstanding their apparent incompati- bility, and proceedings shall be taken at the same time upon each, without prejudice to the others. ARTICLE 19. No answer or reply to these exceptions shall be neces- sary, and the plaintiflf, who does not admit them, shall be considered as holding them unfounded in fact and in law. ARTICLE 20. The procedure upon and trial of these exceptions shall be held before the second division, and the adduc- tion of evidence, hearing and judgment shall be proceeded with according to the forms and within the delays for summary proceedings. ARTICLE 21. The day after the foreclosure from appearing or plead- ing to the merits, the plaintiff may inscribe for judgment by default or ex-par U. In personal actions for simple debt, whatever may be their nature and cause : . ; 1. If the action is founded upon an authentic document or a private writing, appearing to have been signed by the . defendant more witi and if th( the produ 2. If th debt, and establish i lion of th( ed, sworn affidavits, or at any effect that ^8. Or, i upon prod tioned in i The clerk toth( the r with on th whicl const: * That is to i made bj himse ia cases bj defi as the inscriptii t This articli distiaguished f existing provis judgment agaii the creditor. '. •xtend this prii 54 JUDICIAL BEF0E2IS. defendant, or having his mark affixed thereto before one or more witnesses and the signtitiire of one or all attested, and if the writing is a complete proof of the debt, upon the production of such writing ; 2. If the writing does not make complete proof of the debt, and some further and additional proof is necessary to establish it, on production of the writing, and of a deposi- tion of the plaintiff or of a witness not legally incapacitat- ed, sworn to before the clerk or a commissioner to receive affidavits, taken at the time of the institution of the action,* or at any time after the service of the sunjmons, to the effect that the debt is lawfully due ; ^8. Or, if there is no writing to support the demand, upon production of a deposition in the nature of that men- tioned in the preceding paragraph ; The clerk at once draws up the judgment and submits it to the judge*, who, after verifying to his satisfaction the regularity of the service and the compliance with the provisions of this article, initials the same on the same day or on the day following that upon which it was submitted to him, and this initialing constitutes a valid rendering of the judgment.! • That is to say, that in taking the writ, the plaintiff may produce an affidavit made by himself or by another person, swearing to the lawfulnosa of the debt, and in cases by default, thk afildarit shall serve as if it was filed at the same time as the inscription for Judgment t This article has for its object the extension to all actions of simple debt, as distinguished from those which are not, as for example, actions of damages, the existing provision which permits the Uking, in a cerUin number of cases only, judgment against a defendant by default, without further proof than the oath of the creditor. The reason of this proceeding being the same in all, why not extend this principle to all cases ? "'^l ! ; JUDIOUL EEOROUJIZXTION. ^^ ARTICLE 22. If however, the case is not susceptible of proof by oral ' testimony, or if the judge for any otber motive, within his discretion, haa reason to suspect the good faith of the plaintiff or to doub/the lawfulness of the claim,he may withhold the initialing and order proof to be made in the ordinary manner. ARTICLE 23. In other actions, that is to say, those for anything other than a simple debt, tl^« P}f ^^^^ ^^^f ^^, the benefit of the above articles 21 and 22, but must t^duce evidence in the ordinary manner and it is only after the proof is concluded that the clerk draws up the judgment, which as laid down in article 21, he places before the judge, who,. • on the same or next day shall dispose of the case by maintaining or rejecting the demaiid, but m ' this, as in the preceding cose, t^« ^^^^^^^^^S ^^^^^ judge is considered as the rendering of thejudg- ment. AETICLE 24. The above provisions, respecting cises by d^feuU^d ZaZ apply to cases in winch the defendant h^ . Teen sui^oned through the newspapers or 'to those accompanied or followed by provisional mea- sures and to aU cases of valid service. 56 JUDICIAL BKFOBMS. AETICLE 25. After the expiration of the delay to plead to the merits, no plea shall be received, not even with the consent of tho other party, without the authoriza- tion of the judge.* ARTICLE 26. Denr.urrers shall no longer delay the proceedings and require a hearing in law, but they shall be pro- ceeded upon as hereinafter provided in articles 44, 46, 48, 49 and 50, at the same time as the inci- dent* to the articulation of facts. OF THE CONTESTATION. ARTICLE 26a. Replies to pleas of general issue shall no longer be necessary, and by this plea, if there is no other, the issue is ipso facto joined. ; • The enforcement of the rule which prescribes the compulsory proceeding in cases within the fixed doloys, is found in article 25, that is to say, in thisarticle which compels the defendant to plead to the merita, within fourteen days after the service, under-i^nalty of foreclosure; in article 32, which compels parties who wish to adduce evidence, to prepare a statement of the facta which they wish to ' prove, within four days after the issue is joined ; in article 46, which forces parties who have objected in law to the arUculation or who have, during the pleadings produced demurrers to have their objoctiona or demurrers decided by the judge of the second division, within four days after the production of the answers to the ttiticulatloo; In articIoCS, which, under penalty of foreclosure, provides for a review bo'bro the first division of the judgment of the second di/lsion, upon the objections in law to the articulation, or on the denurrerg, withic four days after the rendering of the judgment; and, in articles C4 aud 65, which allow the defendant to demand the dismissal of theacUon, if the plaintiff does not inscribe bia case for hearing on the merita within the prescribed delay. :il i' iV I I JUDICIAL EEOROANIZATION. 67 It shall no longer be permitted to plead a general de- nial simply, and every plea which does not contain a categorical or qualified denial in numerical order • • . of the facts set forth in the declaration, or an affir- \ mation o. behalf of the defendant, that he is ignorant of the truth of the fact, shall be struck and the facts not so denied, absolutely or in a qualified manner, of which the defendant has not declared himself ignorant, shall be held to be ad- mitted. ARTICLE 27. If th3 pleas are special, the plaintiff has only four days to answer, without its being necessary that the defendant should apprise him thereof ARTICLE 28. ' If within these four days, the plaintiff produces geaeral ' answers, in fact or in law, or both together, to these special pleas, or if he does not answer, the issue is joined. . „ • ^ x In the same manner, if he answers specially, in fact or in law or in both at once, these answers join the issue, unless by permission of the court, the defen- dant produces, within a same delay of four days, special answers which equally join the issue. . Wo will M« in th. dr.ft of th. Codo of prooodur., uodor tb. Utl. of fummoai, thitTh. fl!.U OB which tb. olalm U buod .hiUl bo aUogod uriatim li. num.rloU order. . , hi M JUDi'.OIlL BSF0B£X8. AETIOLE 29. Upon production of an incidental or cross demand by the deferdont, the contestation shall be made as upon the principal demand in accordance with the above rules. AETIOLE 80. The same will apply, except in the cases in which an^ other proceeding is prescribed, to every demand in warranty, incidental demand during the. progress of any case, opposition, intervention, and in every case in which the parties occupy the respective positions of plaintiff and defendant. AETIOLE 81. All distinction between perpetual and temporary pleas .IS removed, and every plea to the merits, whether Its effect IS perpetual or temporary, shall henceforth be known under the generic name of plea, the term ezeeptionheins reserved for preliminary exceptions.* AETIOLE 32. Within four days after issue is joined, each Darty serves the opposite party with a numbered summary or • The Ob; ct of this article Is to put an end to the conf\iaioa atklnt fi-om error. comoltted L/ the parti'^a la the namluff of thoL- o.ooptloc^^^ aa^^ thVSaS be ween perpetual and temporary o«opticao, which J« la Sth of no pr«l"S uUU , the geaerlc nam, off.,. .pp,yU.ff. with equal propriety, toovoryS«t \i JUDXOIiJ* EEOaOlNIZiTIOK. ft» an articulation of the foots T^hich he intends to prove when evidence is to he adduced. A copy of the declaration, of the plea, or any o^hor document used in pleading, shall, in future, not be sufficient to replace this articulation. ARTICLE 88. 't'h- facta articulated must he pertinent to the issue. It is nv,t necessary that they should be a repetition of those already contained in the pleadings, pro- vided they are connecled therewith. ARTICLE 84. All facts are pertinent if they tend legally to sustain the conclusions or to corroborate the allegationo of the party invoking them, or to contradict or modify those of the opposite party. ARTICLE 86. Deeds or writings not already set forth in the pleadings, and which the parties intend to produce, shall bo • mentioned in the articulation. ARTICLE 86. The day following the expiration of the four days, the parties produce in the office, these crticulatioos with the deeds or writings, or a copy thereof if private writings, moLtionod in the artioulatioas. . ^ JODIOUL BElfOIlMS. AETIOLE 87. The evidence to bo adduced by the parties mu.t be confined to the facta articulated, and tho defauU to produce an articulation on the part of one or «1I the parties, within the prescribed delay I, equivalent to a declaration thaUhe party or pi ies [n r.'rT^f ' proof already :nale b^th';^ ^': rngs produced, or by the express or implidt :^a:::tdtr;ar:r.: r r---' " , uu loey will not be allowed to adduce AETIOLE 88. Within fourdaysaftortheproduction of the articulations each party, catesorioally ar.j in nunierieal o-Z' answer, each articulation of the a" plrty or modified manner, or declaring that he is ignorant of the facts arnculated, and has his answer servrf Thu answer is fyled in the office on the day ^tioned in these «iswers, whether originals or AETIOLE 89. Default in the production of exhibits with tho articula «»oranswer,willnothavetheeffoctofa«^^^ tho proceedings, and the enforcement of the abovf articles, unless nfto-- ^ -.i:.. <■-, <. - ""ove t« *),. ' 1 " r -.""viu iur tao :,«iit (jay /rivon to the party ,n default, the odverso p.rty obS n ■ JT 'ii i; JUDICIAL KEOSGANIZATION. 61 an order from the judge of the second division, fixing the delay within which these exhibits shall be produced, which delay being expired, with ■ or without the production of the exhibits, the proceedings are resumed. ARTICLE 40. The simple or qualified denial made by a party of fa<5ts which are proved later, or the declaration that he is ignorant respecting them, renders such party liable for the costs of the proof made by the opposite party and which the admission of these facts would have avoided. ARTICLE 41. If from the whole evidence, it appears that a party was aware of the truth of one or more facta, denied or admitted in a qualified manner, or of which such party has declared that he was ignorant, and that he acted in bad faith, the court may, even in the event of such party succeeding, in whole or in part, upon the merits of the suit, in its discretion allow him no costs against the adverse party, and even condemn him to pay to the latter the whole or a part of the costs of the evidence or of the Buit. ARTICLE 42. ->./>^.,. ^^».»£.«>«M AW nfiayt y,n.rr\r\ff no answered in fhot to each articulation, the party may object to tho ■,ji'' TT' JUDICIAL ESFOMia. " pertinence of ejujh articulation, as not founded in law and without legal effect upon the cause, by declaring before or after each answer that the articulation, or part of the articulation, is un- founded in law, or stating generally, as it is now done in demurrers, but without being obliged to allege special reasons, that the proceeding, declara- tion, plea or answer to which the articulations refer, is unfounded in law. ARTICLE 43. A party also may answer in law only and not in fact, to each articulation, or t.^.ko objection in law, in gtohl to all the articulations, or dmply gtato that the pleadings to which the articulationa refer are unfounded in law, but in the case of the present article, the articulations shall be taken to bo wholly or partly admitted in fact. ARTICLE 44. The party who, in the contestation, shall have produced a plea or answer in law may, in place of objecting in law to all the articulations or to the pleadin*' to which these articulations refer, state with *the same effect that he renews his plea or answer in law. ARTICLE 45. The default to answer the articulations in whole or in part, and produce these answers within the time I't i!l - I JUDICIAL EBOEGANIZATION. 68 fixed by Article S8, is also considered as an ad- mission, /ro totooxpro tanto. of the truth of the articles articulated. HBABINO ON OBJECTIONS TO AETICULATI0N8 OR ON PLEAS OE ANSWEE8 IN LAW. AUTICLE 46. Within ihe four days next after the production of the answers, the party who has objected in law to the articulations of the adverse party, or who, having produced a plea or answer in law to tho declaration, h-D in hia anowors to the ftrticulationa, in tho to?ai» of Artlclo 44, declared that ho ronowa tho eaiaa, may, after four days notico given to tho advci'^JO party, require, on the day fixed in such notice, the eecond division to maintain his objections, upon which the parties shall be heard. If the party ' who hsfl produced the objections and given the notice does not appear, on the day fixed, to support his demand, his objections, or pleas, or answers in law shall be rejected. ARTICLE 47. All other objections of a similar nature, made by other parties who require them to be maintained, shall, without requiring any other notice, bo argued at the same time, and no ceparate hearing on any such objections shall bo had thereafter. ** JUDIOIiL BEFOEMS. AETIOLE 47a. The default of a similar notice within the required timo, shall be considered as a waiver of the obiec- tions, and plcos, and answers in law. . AETIOLE 48. Judgment upon these objections shall, in so far as it is possible, be rendered on the day that they are heard, or on the next day. • ARTICLE 49. If all the objections are maintained or rejected, the case shall saving the right of appeal against the jud- ment hereafter allowed, proceed in the former caTe the latter as if no objections had been made. If . demurrer to tho whole action is maintained, the action shall be dismissed, and if some of thi allegations of the declaration are struck on the demurrer, or the whole or portions of the pleadings on the answers in law, this judgment shall have • *' ^™' f «=' 0^ if it had been founded upon answers in law to the artici-lations. AETICLE 50. . »y 01 the parties under the circumstances set forth m the preceding articles, require the modiScation h ^J[V,uT ii iO'"n i T-"' M' \ r t — ITT T^ ' II i«iii n iiii i ii.ipinn II wgnf^m^^^m^Hmt^^ JUDICIAL SaOIlGA.NIZAT*0:T. 65 ofthearticulationa of one or all of tlic parties, tlao court shall prepare a conducive ctc-toiiicnt or procd:- verbal, according to thaprecant practico injury trials, of the facta to which the evidence of one or cU the parties is to be confined; this ct::,tcmcnt, v/hich may. alco be prepared hy the clork, under the direction of the court, signed and initialed by tie jud^ie and the clerk, shall be placed in tho record on the day following ita preparation, and the evidence to be adduced by either or all of the parties, C3 the c»G3 may be, shall be in accordance with the statement. ASTICLE 51. In case the articulations remain intact, either because tho party has not followed up hio objcctioi:i3 in the tdrms of Article 46, or becauj^e they have all beon rejected, the evidence, limited to the facto articulated, is taken as if no objection had beenmade. The came r/oplics * when the second divifsion, in place of maintainin-;; or rejecting the objections, reserves them. ARTICLE 62. Notwithstanding the default of articulations and evi- dence, it shall, however, bo lawrul for any p;:irty . to oiTer, before tho first divioion, Lis eupple-jacnt;.ry oath, to defer or refer the decieory cath to tho other party in the cases permitted by law, and 'to interrogate the adverse party under oath, upon articulated facts or ao an ordinary witnceo, co if gi yti i ' i yi ' V U' li ' :.. w ■ ^ ■r- f.r \« ^r> W . ' ," * ,n r* y '! '■» ' ^ « p -w i.^ , f.,,^m 1 •!<;i i 66 JUDICIAL ELros:i3. articulations similar to iho pleadinga, had beea produced by him or by any party to the case. It shall be also equally lawful for the Court to inter- rogate the parties upon the decicory oath. APPEAL TO THE FIEST DIVISION VR021 JUDGI^SNTS SENDEEED UPON OBJECTIONS OS DaS£UERi:iiS. , ' ^ ASTIOLE 53. » There is an appeal in review? before the first division, from judgments upon objections to articulations of fact, or upon demurrers rendered by the second division. AETIOLS 54. This appeal is exercised by a siiaplo declaration of the parties or of one of the parties, to the efTect that they require the revision of the jud-ment, made at the time the jud^nient is mdde, and eitting the Court, or produced ia the clerk's ofilee, within four . days after the judgment, after previous notice of one day is given to the adverse party, in the latter case. ARTICLE 65. If there is a similar demand on behalf of several parties, these demands are joined and form one common appeal. . AUTIOLr] 56. In dcAiult of a dca!:iv:;tioii wiihi" t!*o ti:^ : ni?c„ci^ib:-'' tho parties arc dcprlvca of their ^ppcJJl^ ^ in S If (' mr^^mr^m^t \l JUDICIAL BUOIIGAKIZATION. 67 judgment has the autliority of res jzidicda, tlio evidence, if any is required, is taken according to its provisions and it becomes executory without appeal, if it has dismissed the action. . ARTICLE 67. This demand in appeal, upon which the parties are . heard, in the manner prescribed in article 78 and following, does not prevent the inxription of the case upon the rolls of the first division, as if no appeal had been demanded. , INSOBIPTIONSBEFOES THE FISST DlViaiON. ARTIOLS 68. There shall be two rolls for the first division, kept by the clerk, the roll for proof and hearing, for cases in which evidence is to bo adduced, and a roll for hearings in law, incidental proceedings and upon the merits. ARTICLE 69. Are inscribed upon the roll for proof and hearing: 1. Cases in which an urticulat'oa and £Ho;Ter- L?.vo licoa produced within the rircscrilcd tino, witliout oV;vQi,lon3 iu law; 2. Thc:o in vhich o!ycoticna cy dcLiuv:?c:ra Lciviii:^ lc::i illod, huvo bocii ab::udGncd i^ dcLi^lt gI iioilcp Oi ;ir'PlkdIon to •-""■niJu the objcoilona wcA S^'«*.«i*A wW4 W) Oi* re d: V.I 68 JUDICIAL l-^ITOIiMS. rejected in default of a &: .nilax domand after notice, according to article 46; • ^ 8. Thoso in which objcctione or demurrorp have been rejected by judgment that has acquired the authority aires Judicata^ in default of appeal. ARTICLE 60. Are inscribed upon the roll for hearing in law and on the merits : 1. Caco3 in which, in default of ortiouhtions of both par- ties, no evidence ia allowed to be adduced ; < 2. Those in which by mutual default to enawor, the articulations are taken as adiaitted ; 3. Those in which an appeal is taken from the judgment upon the articulations. ** ARTICLE 61. Within the categories of article 59, cases are ready for inscription for proof : 1. In the caae of paragraph I, three daya after the time allowed to object in law ; 2. In the coca of parji-rarth 2. three dr.yo af:or the abandoninrj or rejection of tho objcctioiis and dcnvarrcr:;, m default of notice or demaud of inaintciui:c3 of theco ODjcctiona and dcmurrora, accovdin^' to articles 'IG and 47 ; 8. In tho caco of para^^'ranh 3, tuvoo days c.:tz? tho ospi^ ration of tho ti;ao allowed for a -jpcal. *.|!' i ,«i 1 ! r< m^^f^m^^^ JUDICIAL REOaOANIZATION. CD AETICLE 62. . In the categories of article 60, cases are ready for in- scription upon the law-roll, as follows : 1. In the case of paragraph 1, throe days after the expi- ration of the delay to produce articulations of fact ; ^ 2. In the case of paragraph 2, three days after the expi- ration of the delay to produce answers; 8. In the case of paragraph 8, three days after the appeal. ASTIOLB 68. In accordanco with tho practico followed, each paxty may inscribe the case on either roil. ASTIOLSGi. la the circuits {arrorMiszcxzr.h) if a c^co is ready for inscription, one month before the no:;t tcrni of tho di3trict,and the plaintiu' allows one-half of this tiiao to lapse, that is to say fifteen days, without inscrib- ing, the adverse party, who has not .^Ircady done so, may do so, if he does not prefer demanding at tho . next term, after one day's notice, the di;iq.::.:2,l of tho action ; and the Court may, in itc discretion, grant tho default required a;;d di;-ir*:;::wl of tho action, ^javing tue plaintiiTs ri^jht to in;:tituta another euit, or fi:: tho zzjzz for tho cdducticn of ovidcncG, or for hearing in tho l.orm it:clf, if there la ti"uio oacu^h, and, in tho cciitrai'y c:j:o end io^ good rc;i2ons jjiven hy the dQfcnd:;a2t, in tho follov/- ing or any otLc? 6ufcse(^ucnt term. . I I V M H II H I tt » " " 'W"»i|- ■• |.V« 70 itTDioLiL iiEi?oaird. ARTICLE 65. The preceding article applies to the districts of Quebec and Montreal, if, after the day upon which a case is ready for inscription, the plaintiff allows two whole . terms at Quebec and three at I^ontreal, to elaps without inscribing it. TEMPOEABY PB0VI3I0NS. ARTICLE 66. In all the districts, as well in those of Quebec and , Montreal as in those of the circuits, all cases, pend- ing at the time of the coming into force; of the new Code of Civil Procedure, in which the issue shall have been joined, but which have not been inscribed for the adduction of evidence shall, in the same manner as those to be instituted after that time, be Bubj ect to the above articles. ARTICLE 69. In such cases then pending in which issue shall not have been joined, it shall be so joined, according to the new code, and so with the rest of the trial ; a5 to those m which issue shall have been joined, but not inscribed for proof, they shall be subject to" the articulation of facts ; but, in this resDect, the day • following the coming into force of the code, shall be deemed within tho meaning of article 32, the day upon which such isDue is joined. rODlOUL E'^OnGJUJISl'JION, 71 I ^ AETICLS 70. •Casea then pending and wliich have teen inscribed for proof, or at tlie sarao tiino for proof and itcaring on tha merits, or Tor hearing on the mcriis c aly, shall at ones, and without any proceeding bcin^ taken by the parties, be tranoferred to tha roll for proof and hearing of the first division, and the casci inscribed for hearing upon the merits only, shall bo, in the same manner, transferred to the law-roll. AKTIOLE 71. Every case shall be inscribed before the first division sitting in the district in which it is pending. ii ' ! I ; AETICLE 72. In a circuit district, if between the time when the case is ready for inscription and the nest term of the first division for the district in which it is pGnding, one or two terms aro to be held in the other districts di. the circuit, the case, by consent of parties, may ba inscribed upon the rolls of the first division of either of these districts, and shall then ba proceeded with in all respects as in a case of such other dictriet. If, however, in a case so transferred to another district, a hearing is had up n objections to ariicalr.uons, or upon demurrers, and according to the jiid^ment it ia necessary to adduco evidence, the cr.2G may be, by a similar .consent, retransrcrrcd to its own court, there to be tried upon the merits. *W'!W««M«Mf«if^ ■"" ' ' ' .1 "•»lllll« "' ' I I 1 1 ■■■•I 72 JUDIOLLL Hi:70Sirs. *• ! A^^TIOLE 78. Every judgment rendered by tbe f:r3t divifiioa of a second dictnct of the circuit, {an.ndiiicmj:i(\ ehall be exe- cuted in the first, that la to y in 'the district in which the case arose. METfiOD op PEOCESDINO UPO IKSOBIPTIONS BEFORE THE FIEST DiViaiON. ' ARTICLE 74. No inu :ption before the fir^t !ivisioa shall be made for > any particular tarn, or L pai-ticular day of a term, • but It shall be made generally and the cki-k ohall dispose of it in the following manner : " ARTICLE 76. 1. If the inscriptions are for the roll of proof and hearing aa they are received, or after having received a cer^a^n number, the clerk, fl .oring the order of the inscriptions, and regulriin, th. precedence u^on that order, distributes tliem over the diH^rcnt dWs of thenext term, according to its nxeJ or L..babla duration, allowin;? a d.5nite or arbitrary nuzibcr for cTch day, ac ording to the number cf c^^^ in- scribed for the term, and the knov/Iedgo th. he himself may have, or wL.oh may be comniunicu ed ^ to }um by the parties, of the probable length of each ca. . u '.^^ isi.^a' ■mi Sr- iim~»i«»"«"""»» I i. JUDICIAL EEOSOANIZA-TION. V8 2. He cliall leave a delay of cigbt days tctwocn the day the case is placed upon the roll aiid the day fixed, and as the cases are fixed ho ehall, on tho eame day or on the next day, give notice either verbally or in writing to the parties. i / AETIOM 76. In the district of Montreal, the cr.5;es inscribed upon the roll for proof, or upon the roll for hearing, shall be placed alternately upon either roll of the two sections of the first division, and, regard being had to the business before either section, inscriptions may be transferred from one to the otlier. AETIOLS 77. Ali cases inscribed upon the roll for hearing shall be fixed for the nearest day of tho t«rm following the inscription, provided a delay of four days is left be- tween the placing upon the roll and tho day fixed, which day shall be notified to the parties by the clerk, upon the same day cr the next following day, as in the case of inscriptions far proof. In the dis- trict of Montreal, the inscriptions shall be in rotation from oae section to the other, as above prescribed ; saving, nevertheless, the transfer from one to the other. 1^ t*-^ •('.'«lIt»'i;T-'» Pf"' iPPl'*>«i| « w iiityit^l • j~f- / " T " t»»WI'W j l»WHi V M ^y * n lODIOiAL REFORMS. PBOOEDURK UPON INSCRIPTIONS UPON THE ROLL FOR PROOF AND HEARING BEFORE THE FIRST DIVISION. ARTICLE 78. On the first day in each term, in the circuit districts", the Court shall' first hear the cases inscribed upon the roll, in appeal from interlocutory judgments, render- ed upon articulations of facts, and upon pleadings in law, and they shall dispose of them insianler, if pobuble, if not, on the earliest opportunity ; and, if in consequence of the judgment, evidence is to be adduced, the Court shall fix .it immediately for a certain day, among the cases already fixed or to be fixed for proof and hearing, and the clerk shall transfer it to the roll for proof. No absolute delay for the fixing of the proof shall be observed by the Court, which wi- allow a reasonable delay, deter- mined by circumstances. ARTICLE 79. If, ill consequenco of the judgment, no proof is neces- sary and the case is to be heard on the merits, the Court shall fix a day for such hearing. After the hearing of objections and on the pleadings, the cases inscribed upon the merits shall be heard, in the order fixed by the Court, by general rule or rale of practice, or by a special order in ear;h term ti * f i '' !ll" ?\ !!' 1 •^iT ili ' I I II [I - I Tr"7"~T — ^* i»yc.,... !. I f J I " w ■i / rtDlOIAL BEOBQANIZATlOtt. « AEVCLE 80. . • Evidence adduced before the 0°"^. shall be taken in ordinary writing or by stenography, subject to the special rnlesof each district of Qaebecor Mon- treal, or of each circuit, or ""^er rn les of pract.ce enacted for all or for each of the jurisdictions. ARTICLE 81. • The witnesses shall be examined by the parties, under the supervision of the judges, who shall keep the evidence within regular bounds, and not permit, to bo agreed. That i3, that m cases transcribed into ordinary writing, graphy, the stenographer's notes a o^^^^^^^^^^ ^J^^^^^ ,. unless in case of aVpeal. f" '1 tl^-^^^'^;- J^ ^ ,^„ ,ig„,ture of the dcpoaited in the record, and shall bo ™^; ^" [^^.^^ if ^ho judges, clerk, in whose care and ^fl^l^ll^l^Z^^^^^ and arc therefore who have '^«-Vf'!t'rIt"n=f?rBrthir memory or to verify the correctness already cogni7,ant of .t, ^^ .sh to rctttsu vn j ^^^ of their notes, they cau.e the «^"««-lf " .^^/J^;—^^^ ^Id by the steno- Sr :-tain VleS of tUe 'deposHions, which, as soon as they are closed, must be placed in the record, and there remam ^^^^^ transcription, which jr^e^- :t":rr;: ^irthTldductlon of evident and to protect the deposition against all P^^^^l^^" .';;j';;^"';;„ge8Ud with reapect to the stenographic Many other improvements m.gh. be ^"eses j ^^^^^ ^^ ^^^ Uking of evidence; the «^"°S-P»''»;/^i°"J;f;Z employee he would be, Court, and be under J^V"!;^;;'^ °VJ,^^^^^^^^^^ of the different but the Commission thinks It be ter that the judges be consulted. sections of the bar, whose practice in th.s matter may vary, TpT^^-t-T*- » -r— »* -w- 76 rojlIOIAI, BKPOEMS. even with the express or implied consent of the adverse party, any illegal proof. "'""""'« ARTICLE 82. Unless specially derogated from, the adduction of evi- dence before the Court is subject to the ordinary forms and rules now in use. ' ARTICLE 83. It shall be no longer necessary for a party to interrogate h.s adverse party upon articulated facts communi oatedbeforehand, but any party may intcrroraTeh adversary upon ,M »« questions. Notwithstl^^d shall be the same as before the new eo,ie. ARTICLE 84. Nothing contained in the preceding article prevents the examinat on of the narfv n» .„ i«"enrs witness. ^ "^ "* *" ordinary ARTICLE 85. A case once commenced shall continue until the wit nesse f ,„ ,,^ ^^^^^ ^^^^ ^^^^ examhed ,T e Court however, may, if the ends of justice re! qmre It, suspend the adduction of evidence in a case du„„g a part of the sitting, of the Court or fershtil''''' "?"""; •' *» " ■>="«-'" **uur oj me 8lttlD?8 or t" a ^"♦"— J ^ • „ -- i^ » .vtiuic uiay^, 10 iiear : Hi! II! i ;1 ,1 n i'P ^■, JUDICIAL BSOBOANIZATION. 77 witnesses of the party then adducing evidence, or those of the other party. This suspension is within the discretion of the Court, which, with- out good reasons, based upon the interests of justice and those of the parties and without necessity, should not allow or order the inter- ruption of the evidence. ARTICLE 86. The adduction <»r evidence 8b<>uld not, unless for^ood reasons In the discretion, of the judges, be ad- journed, even by consent of parties, before it has commenced, or whilst the parties are proceed- ing therewith, on account of the absence of one or more witnesses, if other witnesses are before the Court. ARTICLE 87. The examination of the wknesses present, must be had, saving to the parties the right of producing the absent witnesses, arid upon the order of the Court, which, after inquiring into the facts which the party intends to prove' by these absent wit- nesses, and taking into consideration their pro- bability, their pertinence to and' effect upon the suit, grants or refuses such order. I t ARTICLE 88. The Court may, at any time, even after the hearing ^ «!.. :*_ 1 al. Ai.: j.^iK..^ ^/ *u^ IB JUDICIAL SEFOBMS. case upon the advisement roll, revoke the order made, refusing the right to produce addition- al witnesses, and allow or order the rejected depositions to be produced, and upon these new depositions, allow others. ARTICLE 89. It is also discretionary with the Court to order the appearance of any witness offered or not by the party, if the proof shows that such witness pro- babJy knows some fact pertinent to the suit or necessary to clear some point and place the Court in a position to render justice to the parties and It may delay the closing of the proof, um i the examination of such witness. nui tne ARTICLE 90. Upon the production of any witness, examined by order or under the permission of the Court, the d ent. obtain leave to produce other witnesses either to attack ihe credibility of or to eon rS ' the Witness, or for both purposes at once. AETICLE 91. If, by reason of the press of bu.^icfis or the presumed ength of the proof, the judges deem it advisaWe they may appoint one or more Commiss one ' I III I i JUDICIAL REOltOANIZATION. 79 under the form prescribed by the Code of Civil Procedure, before whom the evidence will be > adduced, but only on the days upon which the . Court is sitting, and who shall decide upon the objections to the evidence, saving the parties* right of appealing from the decision of the Com- missioners to the first division then sitting, which shall hear the objections and decido upon them instanteft so that the deposition may be con- tinued before the Commissioner. The county judges are, of right. Commissioners, and if the first division sits at the same time as the County Court, such evidence may be taken before that Court, if it can be done without interfering with the matters there pending. The adduction of evidence commenced before the Court, may be contin^ed before a Commissioner and vice versa. ARTICLE 92. t i No deposition taken by a Commissioner or a county judge, dan be closed before being read to the witness, in presence of the Court, which may fix any time of the day suitable to it, to have the depositions of the witnesses, heard before the Commissioners, read to the witness and to close them.* * The object of this article is to gWe the Court cognizance of the proof before the hearing, ai in caaes ia which the eTidence it takea before it i. - mvuHj ; ! n . ijr^in , , . -, • j , i, ^ ,, „ , ^^_ , ^ , „ ,. 80 JUDICIAL SEFOHMS. ARTICLE 93. Immediately after the proof is closed, the parties are heard upon the merits of the case. 1 ARTIX3LE 94. A special roll, called *'the advisement roll," shall be kept by the clerk, upon which shall be inscribed, in order ol date, the cases taken under advise- ment, and the date of the judgment. ARTICLE 96. No case shall be entered upon the roll, without an order of the Court to that effect. OP JUDGMENTS AND THEIR KENDEEINO. ARTICLE 96. s Judgments are rendered by the majority of the Court. If the case was heard before two judges only* and they disagree, a re-hearing shall be ordered] and the case shall be heard de novo before three judges. ARTICLE 97. No case shall be entered upon the advisement-roll, b.ior.i he judges have, after consultation, agreed that ;hey cannot decide the case on the day of Its hearing, or on the nearest day of the term, or within any other short delay. I, fi, i- JUDICI A.L BEOBOANIZATION . 81 < When judgment is rendered, without the case being set doAvn upon the advisement roll, it must be drawn up and signed within twenty-four hours after it is rendered. ARTICLE 98. When according to article 97, a case should be taken under advisement, the judges, before it is entered, shall, in a conference held by them, on the bench or in chambers, to which the attorneys of the par- ties may be called, and during which they may be heard to make suggestions, settle a statement of the questions of fact and law which arise in the case, commencing with the questions of fact ; it is, as much as possible, in this order that the case shall be considered when under advisement and the questions decided. This settlement of the facts shall not, however, be final ; it may be set aside or modified while the case is under advise- ment. ATITIOLE 99. In the appreciation of the proof, the first division is not obliged to consider, as producing judicial efiects upon the trial, the facts, or any of them, which its own judgment in review, or the judgment of the second division, not appealed from, has declared to be pertinent, and upon which proof hos been allowed. The first division, ore. the contrary, may, nohvithstand-' ing cither of these judgments^ consider the facts e '* \ 88 JUDICIAL BEFOBMS. as being without influence upon the final judgment or reject the proof as useless or illegal. ARTICLE 100. Aa much as possible, the cases shall be taken under advisement, and decided in the order of their hearing. ARTICLE 101. Thejudgmentsshallbesodra\vna.stocontainastatement of the questions of fact and of law, and the decision upon these points shall be sufficiently clear, so as to give to any one, not already possessed of it, an idea of the question in litigation, and shall, if required, serve as a report of the case. ARTICLE 102. Every judgment shall categorically decide the questions of fact and law, whose solution is essential to the suit, commencing with the facts and shall only pass to the questions of law, if the decision on the facts , does not dispose of the case. ARTICLE 103. All the judgments rendered after advisement shall be signed and initialed by the President of the Court, before being delivered in open Court. Additional rules upon proof and judgments are to be found in the Code of Civil Procedure. I: ■ lUI, ll I il; JUDICIAL BEOBGANIZATION. ARTICLE 104. 88 All the Articles respecting procedure, the contestation, the articulation of facts, hearing and judgment upon the objections before the second division, the proof and hearing and the judgment before the first, apply to all contested coses before the Superior ^ Court, subject to ordinary procedure. SUMMAHY PEOCEDUKE. All contested cases, and all contentious proceedings before , or after judgment, do not, however, fall w' thin this category. There are some which, by reason of their urgency, the small- ness of the amount in litigation, and the delay which they cause in the proper decision of cases, must be withdrawn from the jurisdiction of the first division, and tried and decided in an exceptional manner by the second division, with or without an appeal to the first. The procedure followed in these special cases, contrary to the general rule, which gives jurisdiction to the first division over the merits of all contested cases, is the summary procedure, other rules for which shall be given hereafter, subject to modification in certain cases. Before doing so, if, is fitting to give the names of the ordinary cases and those accompanied by provisional pro- ceedings considered as summary, which will be subject to the jurisdiction of the second division. These are : 1. Actions for alimony, based on the law or on contracts, except those accompanied by conclusions in declaration of paternity, in which, however, the second division may order provisional allowances ; 2. Cases arising from the relations of landlord and tenant, lessors and lessees, with or without provisional measures ; I 84 JUDICIAL REFORMS. 3. The revendicatiou of movables whose valn« ^^ .x«ea the amount of the ultimate jurlSX" '"' ""' 4. Actions for eolarios of persons hired at a fixed nrio. or a determined lime, or by the pieee, or by the d„v !:r';:r:hot^:::Lrr^^^^^^ :rss:etoitr--=^^^^ 5 Actions by hotel or boarding honse-koepers for lod^in" dr!n "^"l!™" '"'"' °" P'o^'^wy «otes, bills of eichance or by prnate writings, accounts for supplying ^ods and i:^;mr;:fd:br^"" -'-^ ^"--- »^^" offices r "'''°°""° "° '""^°"°" »^P»"'° <" "^"-Ji-P"! 0. Mandamus; n S •" ?.' ""'""' °f P'-oW'-ition or injunction • Le"ers'paL::."° ■"""" "' '""^-•- <" ™"^ '« »"'.l pro'i^Tonrsr--' '~^- --- ratificTt^n o^tiSrr *"' ""'"^^ '""" ''y"""-'. " demand:": ttrntfor '"""TT """'"^''■P '»* "' of a family »unTi„. '""*' '''' >''^^'' "" ""^ «<'"<=« .ach o2i ■ '" ""^ '^'" ">"« ^ -» appeal from doe?nTr:tllL°?;r'.^-^ '" P-=-PH' I to U ■' I I Ml i] JUDICIAL REORGANIZATION. 85 mines the nature of these paragraphs, in the category of which similar cases should fall. Upon any question raised before either division, as to the jurisdiction of either over the^e cases, the judge who shall decide that a party has brought his case in the wrong jurisdiction, shall not for that reason dismiss the demand, but shall send the case before its proper tribunal. Similarly the complaint of any party, that either upon the summons or in the proceedings preliminary to trial, and upon all judicial proceedings, he has only had summary delays in place of ordinary delays, shall not give occasion to the dismissal of the demand or the loss of the right summarily claimed, or to the setting aside of the proceeding by which the other party claims it, but simply to an exten- sion of the delay for the period which he has been deprived. A party summoned in the ordinary form, who should have been summoned in the summary manner, may de- mand the dismissal of the action and vice versa. Incidental proceedings, either before or after judgment, also considered summary, and which remain before the second division, are : 1. Preliminary exceptions ; 2. Recusations; 3. Disavowals ; 4. Continuance of suits ; 5. Petitions in revocation of judgment ; • 6. Interventions; 7. Oppositions by third parties; 8. Oppositions to annul ; 9. Oppositions to withdraw ; 10. Oppositions to secure charges ; 11. Oppositions for pa3rment and contestations of reports of distribution ; 12. Suits to set aside a shei-ifi''s sale; 86 ^UDIOUL BEt'ORMS. ieithc. of 13. Contestations of provisional measures. Oi^positio, 10 marriage, which is included in theso two catego-o. jg another summary matter. in all f ., . cases above enumerated, the parties may. belo >r utor the adduction of evidence, or when irr w ''"u^ /"' ^'"""Sr on the merits, inscribe it by usent upon the law-roll of the first divis/on. where the roof shall be taken and the case heard and decided Lia ordmary cases In any similar stage of t.e case, the second division may. if overcrowded with business, order the clerk roll of the first division, where it shall be fixed tried rntl;:^. ""''' '''-''''' '^''^ rulesof thatirn r^^Te'trV^'T^'^' the pleadings, by producing, upon the day after the .osue has been joined, a ioin decaration tothat effect, proceed by articulation of fact Xl": "'*'°' ^"""'^' ^^ ^^*-^« '^2, and ,J^\^'\%''^^<>''^^^Y^^^ed by that Article to produce the articulations, shall be reckoned from the day aS the production of such declaration. ' ARTICLE 105. Except in cases where special provisions are applicable to particular cases, the summary procedure before the second division shall bo the following : ARTICLE 106. The delays upon summons shall be five day., whatever Z^Court ^"*'°°' ""^ *^' ^^^' ^^ '^'''''^ ^'^°^ ! IMAGE EVALUATION TEST TARGET (MT-3) ik '^i ' ^^^% v % 7i 1.0 I.I 2.0 Muu 11.25 i \A 1.6 P> ^> Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 87^-450,1 ^ •«■"« procedure i. speciUly n u ■l; »!J 1 H \1 : I / '! * J i JUDICIAL BEOSGANIZATION. 89 obvious. We give the name of cases of urgency to those special matters which will form a division of the summary procedure, which will remain applicable to those cases that are not excepted. These cases will retain their generio name of summary cases. The procedure of urgency will apply to all suits and instances so noted in the new Code. This procedure shall be the following: ARTICLE 116. The delay between the service and the return is one day, if the service is made within a radius of fif- teen leagues from the Court, with an additional delay of one day for every fifteen leagues, or por- tion of fifteen leagues, of additional distance. ARTICLE 117. The defendant is obliged to appear and plead in the forenoon of the second day which follows the expiry of the delay upon the summons, and if he does not do so, he is proceeded against by default to appear or to plead. ARTICLE 118. Issue is joined in the manner prescribed in the above articles, for ordinary cases, except that the plead- ings necessary to join it are produced from day to day, and in the forenoon of the day upon which they are to bo produced. Every preliminary exception is to be produced at the same time as the plea to the merits. i , &6 lUDlOUL REfroSMS. Proceedmgfl on preliminarjr pleas and those to the merits are had together, and if the preliminary exception is maintained, the plaintiff is condemned to pay the costs of the whole suit. ARTICLE 121. So soon a^ the issue is joined, the case may be inscribed before the second division, upon the roll for proof and hearing for the next day, and the proof shall be taken and continue from day to day, and when closed, the case shall, without delay, be heard upon the merits. ARTICLE 122. The evidence shall be taken in writing, unless the parties consent to oral testimony. ARTICLE 128. The judgment in these matters shall, if possible, be he^r^ *"* '''''^* '''' *"" *^® ^""^ following the ARTICLE 124. If the urgent matter did not commence as a provis- sional proceeding accompanying the summons, but 18 an incident in the case, the proceedings necesuary to bring the matter to judgment shall, unless there be special provision or derogation, continue from > day to day, and the judgment, as in the case of the ■A -^ ^DlCtAL ftfiORGANIZATlOK. 91 preceding article, shall, if possible, be rendered on the day of the hearing upon the merits, or on the following day. ' The division of the summary jurisdiction into two classes of cases is already to be found in the Code of Civil Procedure, although not so distinctly characterized. Two examplee of this division are found in the different procedure followed in two summary matters, suits between lessors and lessees, authorised by the iirst chapter of the second title of the sixth book, in which the delay upon summons is one day, with an additional delay of one day for live leagues distance, and in which the contestation is carried on from day to day, and the suits respecting corporations and public offices, in which the delay upon summons is three days, . with the same additional delay, and the delay to produce pleadings is three days. The Commission has taken as a distinguishing line between the purely summary procedure and procedure of urgency, the distinction between the procedure upon actions between lessors and lessees, and that respecting corporations and the usurpation of public offices, making of the first the model or prototype of the nro-ent procedure, and of the second that of the purely summary procedure. In the Code of Civil Procedure will be seen what summary matters, principal or incidental, should be treated as putely summary or as urgent. It suffices at present to *te that every summaiy matter, included in either of the two categories above mentioned, and which is not declared to be subject to procedure of urgency, remains subject to the summary procedure. The same rule applies to matters not declared to be summary, which are tried and decided according to the ordinary procedure. Among summary matters subject to urgent proceduro, 02 JUDICIAL REFORMS. we inoLe hern ill ^r 7 "'""«"'*'>' '^«»''=. «d first el^orvte^ft "' r""°""* '" ^°'- ' *°* "^ «■« applies tfthem ""°"'"' ""* "" "«»' P'ow^ure seetltrtr"™'"''"''^ '» ""^ prooed„e\vill b, laws, in .-ui^z prX: rwfr " *" ri"'-'"' now exists oalyin its a^Xltf;^ ™ ^''■""'y ""'^d. but not as a distfnot "'a^^tbn 7"?"'"""" ""'"™' the summary proced„rroX an acdler"".' T'^""' only as exceptional, in place of beinl,t' v^ ^^'"' general rule, and ho din^a dLVnotT ?''■''"" "' * .f irx'^^irofzrrdit^ - r^ complete ^echanis. an'd'a ::„Sr : CLT b^tT ^ucab. sho j.ttu^: —h:: riL^ 1 1 tu ll"; JUDICIAL REORGANIZATION. 98 place beside ordinary matters, with respect to which they are exceptions only, and that the result of its too extensive application would be that in certain jurisdictions (that of Montreal for example) the second division, to which the time of one judge alone is assigned, would have too much to do as compared* with the first division, which is held in two sections and by three judges in each. The Commission has foreseen this objection and removed it to a certain extent by allowing, as above enacted, the second division, overburdened with work, to send to the first division a certain number of cases which it thinks would not suffer by this transfer, and the parties themselves to transfer summary cases to «he first division. There is another reason besides the number of cases before the second division, which might give rise to this double provision. There are, amonj; the summary cases, some in which, from the nature of the demand, say an account for supplies, a draft, bill of exchange, notarial obligation, and the character of the contestation, questions may arise which take away from the suit its summary character, and require its reference to the ordinary procedure or to the first division. This latter case is also provided for by the permission given the parties, who are the best judges of the importance of their cases, to transfer, by consent and without exception, all their summary cases to the first division. The Commission think they should here suggest a third rule. That is, to allow the reference to the first division, of cases in which the contestation has so changed their nature, to be there tried as ordinary cases and according to the same forms, the articulation included, upon the application of any of the parties, and in the discretion of the court. This application should be made on the day after issue is joined, or two days after, and if allowed, the delay for the 94 JUDICIAL REFORMS. articulation shall be reckoned only from the day after the judgment allowing it. This third rule would, in addition, have the effect of re- heving the second division fiom the matters so referred to the first. There is another method of reducing the excessive amount of business before the second division. It would be, not to make absolute and without exception the rule requiring the holding in permanence of the first divi- sion at Montreal, in two sections, and to allow the second division to sit in two, three or four sections, each presided over by one of the judges, which the suspension of this rule would leave free. Everything is left discretionary with the Court, but the advocate-general is obliged to take the initiative therein. The same power should be left, in the district of Quebec, to the judges, to hold several sections of the second divi-' sion, and to suspend the sittings of the first division, when the necessities of the public service permit it. In the case in which the second division may transfer, before or after proof, a case to the first division, the jud^-e holding such second division, in place of ordering the transfer, should have the power to require the assistance of one or more of the otherjudges ; the proof should be taken before these judges and the judgment be pronounced by them. The appeal to the first division, from judgments ren- dered by the second, shall be taken in the cases in which it is allowed, by simple declaration to that effect, made at the time the judgment is rendered or within four days follow- mg its rendering, with notice, in the latter case, of one clear day, given to the other party. This appeal cannot betaken from judgments rendered by several judges. Certain judgments in urgent cases (judgments ordering r; ^ \ ' :: JUDIOUL BEOBQANIZATION. 05 i! I' :|l I provisional or definitive alimentary allowances, for ex- ample), shall be executed, notwithstanding the appeal. Special provisions will be found in the Code of Proce- dure, respecting the security and other conditions under which this appeal is exercised. That is a matter of detail which has no place here. It would be desirable, that in the beginning of the ju- dicial year, which lasts from the first of September to the tenth of July following, the interval being filled by the summer or long vacation, that the distribution of the judges of Montreal should be so made, that the presence of the same judges in both sections of the first division and in the second division, should be assured for the whole year. However, this rule would not be absolute, and, according to the requirements of the service and the convenience of the Courts, the inversion of the order would be optional, and any judge would sit in either section of the same division; the two divisions might sit in one or several sections, on the same day, and divide their sittings as they please, on condition always, however, that the second divi- sion should sit during the whole judicial year, and even during the vacation, for certain cases set forth in the Code, among which will be found the urgent cases. It is to be noted that for the purposes of the appeal to be hereafter spoken of, a sitting of the second division, held by several judges, in summary cases, shall be considered as a bitting of the first division. III. Of the excessive formalism of the Code of Civil Pro- cedure, and the means of remedying it. We now reach the third obstacle to the good administra- tion of justice which has been above alluded to. Examples M 96 JUDICIAL REFORMS. of thecxcessi re formalism of our laws are found all throu^^h the Code of Procedure, and we will point thom out as they appear, so as to remedy them and do away with this abuse and exaggeration of the form. These amendm- nts will be found throughout the draft of the new Code of Procedure We may be here allowed to note several articles taken from the draft, in which wo will again replace them, to show Its general tenor, by isolated examples taken here and there, without regard to the order of the subjects to which the articles refer, and without a connection between them.# ARTICLE 125. GENERAL RULES OF PROCEDURE. The trial and judgment of cases is had in the forms given by the Code. However, in default of pre- scribed forms and in omitted cases, the Courts may, and it is even their duty to dictate to the parties or sanction the forms used by them, which they deem necessary or efficient to validly try cases, give a solid foundation to their judgments and insure their execution. ARTICLE 126. The style of procedure is not confined to any techni- cality or form of words. Every pleading shall be concise, drawn in simple, clear and intelligible terms, distinctly enumerate the grounds and object of the demand, nnd the written language of the • The order of tho number of thcw arUcles, is not that given them in the Code. JUDICIAL BEOBOANIZATION. VI Court shall, in so far as ilie particular character of tho subject permits, be conformable to ordinary language and be interpreted in good faith, without, cavil, and in a sense conformable to the apparent intention and interest of the parties. ARTICLE 127. ' Errors of calculation, of drafting, and all faults of cali- graphy, when apparent, are corretlsd by the Courts themselves, in addition to the parties being also allowed to rectify them on a written or verbal de- mand to tliat effect, with or without notice to the other party, in the discretion of the Court, and according as the parties suffer or not by such de- fault of written demand or notice. ARTICLE 128. Defects in form involve nullity only when this penalty is formally pronounced by some article of the Code. ARTICLE 129. In every other case, the nullity is within the discretion of the Courts, whose judgment upon the matter is not subject to appeal, and it should be pronounced only when the violation of the prescribed form causes to the party invoking such nullity, an irre- parable injury. Otherwise, and if the error is not one of those which, according to Article 127, 7 «4 d8 JUDICIAL REFORMS. they mny of tliemselves umend/it shall be always lawful to tho party who, cither personally or by the executive officers whom he has employed, has made a mistake in the form, to amend it and re- pair sucli defect in his proceedings. ARTICLE 130. Except in cases of absolute nullity, no objection to the form, raisea without a substantial grievance by any party, shall be avoralL- received \y the Court. ARTICLE 131. All judicial matters are not necessarily, altbou-h they may be validly, dealt with and decided hi open Court. ^ ARTICLE 132. By. consent of parties, the ca^es for hearing before the Court may, in urgent cases, based on public interest or the private interest of the parties, whose import- ance the judge shall determine, bo heard in Cliam- bers, in the residence of the judge, or in any public or private place, provided that the judgment, if not rendered at once, or on the day following the hearing, be rendered in open Court in the ordinary way, and that in the former ca^e it be, without delay, enregistered in the office of the Court where the case is pending. I >! I ii I '-i "Ij ••. J , JUDiaiAL REORUANIZATION. ARTICLE 133. 99 If, at the opening or at any period of ho term, there is not at the c)icf-lieu, owing to some accident, a suitable Conrt-house in which to hold the sittin«>'8 of the Court, such sittings may be lawfully held in an}' building chosen for that purpose by the judge, by an order entered in the register. All writs of summons shall be returned in the place thus temporarily set apart for the holding of the Ccm-t, defaults shall be there recorded, and all proceedings taken with the same effect as if in the ordinary Court-house. , ARTICLE 134. In cases in which this Code or any other law has no express provisions applicable to questions of proce- dure raised before the Courts, they shall search among analogous cases for the rules of theirdecisions. In the absence of such analogy, the rules must be sought for in the general spirit of our judicial or- ganization and of our laws of procedure, and in the common law, and in default of all these, they shall be based on common sense. ARTICLE 135. No right shall be without recourse before the Courts and in case the Code of Procedure does not give forms for the exercise of such right, the judges shall prescribe such forms or favorably receive those suggested by the parties, if they find them efficient. 100 JtWCIAL REFORMS. ARTICLE 136. No technical error in the form of any proceeding, unless such form is expressly prescribed, shall cause the rejection of the proceeding adopted, motion, petition or plea, or any other form of procedure ; provided that it is not substantially contrary to judicial usage and the formalities essential to the suit. ARTICLE 137. T-he words "Tribunal," "Court" or "Judge," applied to the judges in the exercise of their jurisdiction, , are synonymous. GENERAL POWERS OF THE COURTS. ARTICLE 138. Outside of and in addition to the cases permitted bylaw or the rules of practice, every Court has the power to swear persons heard before it or acting under its authority. It also has the same power to re- quire that every act within its jurisdiction shall be performed under the sanction of that solemnity. ARTICLE 189. In the investigation of disputed facts, the judge' may, in addition to the proof adduced by the parties, endeavor to arrive at a clear understanding of the matter, by using any means requisite to ascertain tho truth. '' ' fi ^ii.rs4' I I ! JUDICIAL &£OBaiNIZATION. 101 ARTICLE 140. He may cite before the Court, and compel, under the penalties of the law, to appear and testify before him, all persons whom he may think are in a posi- tion to enlighten him upon the pretentions of the parties, whatever may be their rank and position, scientists, public officers, or private individuals, provided always that this article shall not affect privileged cases. If the suit turns upon the verification of writings or special and technical matters, respecting the arts, sciences, professions, trades and industries, the Courts may order inspections, operatic >13 and valua- tions to be made by scientific men and those skilled in and cognizant of the matter. ARTICLE 141. The greatest latitude is given to the Courts in this respect, and their judgments are not subject to appeal on these points. They shall not, however, have recourse to these special methods, except in cases of necessity, and in the ascertained absence of means of discovering the truth and of rendering justice* to the parties by means of regular proof made by them, in f\e course of ordinary procedure. 102 JUDICIAL BEPORMS. WHO MAY PLEAD Aa\D BE IMPLEADED IN THEIR OWN NAMES AND HOW MUST THOSE WHO ARK INCAPACITATED DO SO.* ARTICLE 142. By Observing the rules of the competence of the Courts every foreigner as well as every British subject] wherever his residence or domicile, may, if he is Otherwise lawfully qualified, appear in his own name before the Courts of the Province, both as plaintiff and defendant, against any foreigner as well as any British subject, and against any in- habitant of the Province. He may sue and be sued befove these Courts. ARTICLE 143. To be in a position to appear befora the Courts, in his own name, and without any outside authorization or intervention, it is necessary (except in the cases hereinafter mentioned, in which minority is not an " obstacle to the exercise of Ihis right) that he be of full age, have the use of his reason, and the free exercise oi his civil rights and the disposal of his property, and not be under any legal incapacity. The ftrticlcs from nrticle 14'' tn oHixin in .„i • i ».oth of CBtubli^Inu, tl.c. .c„.c of uncortain ju.i.pn e u^ ^ '^vc J c 'T" required to validate ti.e apj-curance, i„ thoir own nunu-a of c S "f LerBons and for ,I.c Letter understanding of article 4,' loraud IC IT"h "=' vide a radical reform upon the matter, by chau^inl intn l!i r \ ^ '"■°* those nullities which aLf..om the nni^orZc! oTlTZ.V T?''=' considered absolute and irreparable. cond.t.one, hitherto JUDICIAL EEOBOANIZATION. 108 ARTICLE 144. It is necessary that he should have an interest in the suit. Such interest, except in special cases where it is otherwise provided, need not be actually exist- ing ; it may be only eventual. ARTICLE 145. Married women, minors, interdicted persons, and those who are civilly dead, cannot plead or be impleaded, except in the following cases : ARTICLE 146. A v/ife, being a public trader, does not require the consent or presence of her husband to take proceedings before the Courts, in connection with her business. !i ,1 ARTICLE 147. A married woman, separated as to property, or who not being separated as to property, has by her contract of iarriage reserved the enjoyment and manage- ment of her property, may alone and without the assistance and authorization of her husband or of the Court, appear in her own name and formulate all demands, and set up all defenses necessary for its administration and preservation. She takes alone, in her own name, the personal actions belonging to her. Further, a married 104 JUDICIAL REFORMS. woman does not require the authorization of her husband or of the Court to institute, in the case provided for by sections 96 and 97 of the Quebec License Law of 1878, an action of damages against a person licensed for the sale of intoxicating liquor, who, notwithstanding the prohibition made under sccvion 95 of the same law, sells such liquors to her husband. The same applies to the action of a married woman against any person, resulting from an offence. ARTICLE 148. In all other cases, no married woman can appear in her own name without being authorized by her husband, present in the case, or by the Court. ARTICLE 149. A minor, emancipated by marriage, may appear in his own name and institute all suits and personal actions respecting the administration, preservation, and enjoyment of his property. ARTICIE 150. An unemancipated minor, being a trader, who, for the purposes of his business, is reputed to be of full age, may institute all real and personal actions relatin.^ to such business. *' ARTICLE 151. For all suits outside such business, he is considered as an ordinary minor. ii I r; JX7DI0I1L BEOBOANIZITION. 106 ll:' ARTICLE 162. An emancipated minor cannot institute any real action without the assistance of a curator to his property or one appointed ad hoc ^ and without the authority . of justice. ARTICLE 153. With the exception of the above-mentioned cases, an emancipated minor can no more appear than an unemancipatcd minor. ARTICLE 164. An uncmane?patod minor cannot appear in his own name. His ordinary tutor or tutor ad hoc alone can appear for him and in his name. ARTICLE 155. To institute a real action for a minor, the tutor, however, should be duly authorized, upon the action of a family council. ARTICLE 166. A person interdicted for insanity or prodigality cannot appear in his own name. His curator must act for him, in his quality as such. ARTICLE 167. A person to whom a judicial adviser has been appoint- ed cannot act without the assistance of such ad- viser. !''^li 106 JUDICIAL REFORMS. ARTICLE 15S. No real action can be brought by a curator in the name of an interdicted person, or by the interdicted person himself, without the assistance of his cura- tor, and without being previously duly authorized upon the advice of a family council. ARTICLE 159. A. person civilly dead cannot appear in any suit ex- cept to claim necessaries. ARTICLE 160. Corporations cannot appear except under their corpo- rate name, recognized by law or usage, or given them by their charter, or the title creating them. ARTICLE 161. No suit respecting a substitution or the property com- posing it can be received unless a curator appoint- ed to such substitution be party to the suit, in addition to the other necessary persons. ARTICLE 162. There is no right of action against a person who is ci- villy dead. ■ i m I:, I i ._J .1' i JUDICIAL BKOROANIZATION. 107 I i ARTICLE 163. As to the other persons above mentioned who are inca- pacitatcfl, that is to say : married women, minors, interdicted persons, and corporations, they cannot be summoned before the Courts, except in the forms, qualities and conditions set forth in the above articles, and every omission, if not remedied, shall be a bar to the action which is affected thereby. ARTICLE 164. Such bar, however, is not always absolute, and any amendment, made between the institution of the action and the final judgment, if no plea in bar is produced, and up to judgment upon such plea in the second case, has, saving the adjudicati6n left discretionary with the Court as to the costs of the incident, the effect of rendering the suit valid in - the following cases : ARTICLE 166. 1. If a married woman, separated or not common as to property, but wh » has the administration of her property, institutes a real action, or a married woman not common as to property, but who has not the administration of her property, institutes a personal action ; 2. If a minor, emancipated by marriage, institutes a similar real action, or, if being emancipated by law, he institutes a personal action without the assistance of his curator j i,'. 108 JUDICIAL REFORMS. 3. If an emancipated minor, assisted by his tutor for real actions, institutes a similar action without judicial authorization ; 4. If a person interdicted for prodigality institutes a personal action without being assisted by his curator j 5. If a curator to a person interdicted for insanity or prodigality institutes a real action without judicial authority ; 6. If, in any case, the incapacitated persons above men- tioned, or their representatives, requiring judicial authorization to institute an action, institute such actions without such authorization ; 7. If, under similar circumstances, real or personal actions are instituted against such married women, minors, interdicted persons, tutors and curators. In each of these cases, it is lawful for the husband to intervene in the suit and ratify the actions of his wife, and the tutor and curator, those of the minor and of the interdicted person, for the past, and to continue them in the future, and the authorization, m cases where it has not been obtained before, may be obtained after the institution of the action. This Article applies mutatis mutandis to the case in which a suit is brought against any incapacitated person. ARTICLE 166. In the case of a corporation improperly described, the rectification of the error ciay be made with the !; • I <' .1'! ;■■ H JUDlCrAL REORGANIZATION. 109 permission of tlic Court, upon simple notice served upon the opposite party. DIVERS PROVISIONS. ARTICLE 1G7. Upon proof made by aflidavit or otherwise, to the satis- faction of a judge, that a party, who has apparently a good right to exercise in justice, either as plaintilF or defendant, is unable to make the necessary dis- bursements, such party may be authorized to plead in fornut paitperis, and the officers of juutice are, under such authorization, obliged gratuitously to perform their several duties for such party, to assist him in establishing such right. This Article applies to the costs of proof, to bailills and witnesses. ARTICLE 168. The preceding article does not apply to penal ac- tions. Neither does it apply to those other suits which, however well founded in law, may seem to the.judges to be vexatious or animated with a desire to damage the adverse party. ARTICLE 1G9. Such authorization, which upon proof that justice has been deceived, or that the party was, when it was given, in possersion of, or has since acquired, sufficient property to allow him to make such ^^^ JUDICIAL REFORMS. disbursements, may be revoked, has not how- . ever the effect of preventing the party bein- con- demned to costs in favor of the adverse party, in case he becomes liable thereto. ARTICLE :70. It is to .the officers ot justice, and not to the party . pleadmg in forma pauperis, that the adverse party who succumbs as to the costs, shall be condemn- ed to pay the fees for services so performed. And an execution therefor may be issued in their lavor. The same rule applies to the witnesses. ARTICLE 171. Oaly one executio; sliall, however, be issued for the joint benefit of U - 3 o!Mcers and witnesses for the amount due to each, and each will be paid his claim out of the moneys levied under such execution, after such moneys have been deposit- ed in the clerk's office. ARTICLE 172. In a siiit for personal dnma-es resulting from an ofTence, if the plaintiff is insolvent and the Court believes the suit vexatious, it may compel the defendant to give security judicatum solvi. ARTICLE 173. In Hll legislative provisions or le^al proceedings, . unless the text is opposed to such intPrprom- I': I i " ,i 1 i' > : I: I, I » 4; JUDICIAL REORGANIZATION. Ill tion, by the word "plainlitfs" is meant all parties instituting any suit or formulating any demand whatever, either principal or incidental, and raising an issue thereon under whatever form; and by the word "defendants," any party to the suit who contests such conclusions and pleads to such demand. ARTICLE 174. Every proceeding is susceptible of being amended in any - stage of the '•xse, oven after the hearing and whilst under advisement, and, upon special application, the case may be struck for that purpose, if the Court finds such amendment necessary to render justice to the party and to repair an error or an omission committed by him, his attorneys and ad- vocates, and the executive officers ; saving any ad- judication respecting new pleadings, whether writ- ten or oral, and with reference to costs, which are in the discretion of the Court, which shall make use thereof to preserve the interests of the other party and prevent him from suffering from the amendment so allowed. ARTICLE 176. At the time of the hearing on the merits, any party may produce, in writing, new conclusions which hu^-e b'^en communicated to the other party, which art vct opp.sed to the conclusions already taken 112 JUDICIAL REFORMS. by Bucli party, ar^ not incompatiblo with tHo matter in litigation and are necessary to render justice to the party taking tliem. ARTICLE 176. -Provided that the parties impliedly make application in their pleadings, declarations, pleas or other proceed- ings, and the proof justifies it, the Court may annul rescind, or set aside any deed or contract, without formal conclusions to that eflect being taken. ARTICLE 176J. The default to join in the case any party whose presence is necessary to render any legal proceeding valid, does not give rise to nullity, but may be amended. : ' CHAPTER SECOND. DIVISION OF THE PROVINCE INTO TWO JURISDICTIONS APPOINTMENT OP A ;^ECOND CHIEF-JUSTICE, AN ' ADVOCATE-QENERAL AND ASSISTANT JUDGES. The Commission have, so far, reviewed the defects in our judicial system noted in the report which serves as a preface to Its work, particularly those in connection with the Sune- rior Court, and has suggested under each head the method they think amiable to remedy them. There remain to be mdicated the several changes to be made in the organisation 4. 1 !*, •.' ' 111 fl .■ (• JUDICIAL BEOROANIZATION. 118 of this Court, and in tho working of the Court of Appeals. The constitution of the County Court, substituted to the Circuit Court, will then be considered. It is, however, proper, before coming to this County Court and to the Court of Appeals, in view whereof, as well as of the Superior Court, the division of the Province into two jurisdictions, the creation of the office of Advocate- General, and the choice of assistant judges (jUo^s-suppleanfi, among the members of the bar, have been proposed, to give a more ample explanation of the object of these measures and the means of carrying them out, in order to derive therefrom all the advantages expected by the Commission. As already stated, the division of the Province into two jurisdictions forms already a pirt of our judicial system, but, so far, this division has been confined to the two jurisdictions of the Court of Appeals ; it is foreign to the Superior Court. At tho head of this latter Court is the Chief Justice of the Province, who, in addition to the judicial powers of an ordinary judge in the district in which he resides, is clothed with an administrative power, that of choosing among the judiciary of which ho is the chief, after consul- tation with his colleagues, assistant judges for the Court of Appeals, and of filling, by the members of the Superior Court, the blanks created in the various sections of that Court, by the accidental incapacity of their ordinary judges. "We have seen what an increase of work is given to this officer who resides at Quebec, by the duty of appointing assistant judges for the Court of Appeals, sitting both at Montreal and Quebec, and the obligation of keeping complete the Courts of the districts within the jurisdiction of Montreal, for the purposes of appeal* He is forcibly , compelled to depend upon the judges of Montreal, and especially upon the assistance of the senior judge of that 8 - -^-j-s " T-t*-^ ' n fNU 114 JUDICIAL REFORMS. Court to divide with him this duty, apparently slight, but in reality onerous. He would bo much more overburdened under the proposed system, under which the assistant judges for the Court of Appeals, taken from the members of the bar, f;,hall bo named for each appellate jurisdiction . by the superior judges of that jurisdiction ; those of Quebec to be appointed by the judges of the Quebec jurisdiction and those of Montreal by the judges of the Montreal jurisdiction. Such nominations for each jurisdiction are to be made in conferences of the judges of the Superior Court, at which the Advocate- General and batonniers of the jurisdiction shall attend, to be held in each - " the cities of Quebec and Montreal. A fixed numb-^r of assistant judges so appointed will form a permanent body, to be gradually renewed as each of the members retire. It is also by the judicial authority, assisted by the Advocate- Genera', that special appointments of substitutes shall be made in each case. The fixing of the terms in the districts shall be made in similar conferences. Under these circumstances, would it not be simpler, owing to the inconveniences arisin«- from the journeys which these duties would entail upon the chief justice of the Province, to appoint u chief justice for the jurisdiction in which the former does not reside, at the same time allowing the present incumbent to retain his • pre-eminence, title and honors ? Is it not also just that the judiciary should have a representative in the jurisdiction not favored by the residence of the chief justice of the province ? The formation, among the members of the bar, of a body of assistant judges, amongst whom, in all probability, the ranks of the judiciary will be recruited, can, on the other hand, only tend to raise the level of the legal profession, increase the idea of its dignity, by inspiring its members k: I^i « II ll(lllli«^« ..' :'l JUDICIAL REORGANIZATION. 115 with a Icgitimato ambition, and give to the public a guarantee of good judges, in the person of the assistantjudges, whoso transitory functions will have licrvcd as ^ prelude to permanent ones and their temporary presence upon the bench, will be a reason for their remaining there. The choice of those assistants made by the Bench, the Advocate- General, the batouniers, and, in default of baton- uiers, by the senior advocates of the circuits and not by the government or by the sections of the bar, whose elections are not always free from intrigue, would also be withdrawn from political influence, and would offer to professional worth, the inducement of a well-dcservid reward. It would be, doubtless, from among the older members of the bar, at least from amongst the most prominent advocates, that this choice would be made, but this distinction would, nevertheless, not cease to be a motive of just emulation for the younger ones. Open to every merit, this honor should also be open to all the sections of the bar, and this is one of the points upon which is specially based the bill prepared by the Commission (one of the objects whereof is to raise the judicial and professional level of the new to an equality with those of the old districts). The assistant judges are to be chosen, therefore, among all the sections of the bar indistinctly, and, as much as possible, without mathematical precision however, iji the new districts, in the proportion that the total number of eligible advocates in the circuits of each jurisdiction bears to the members of the sections of the bar of each of the districts of Quebec and Montreal, having the same qualilication. Notwithstanding the excellence of these reasons, they are not the sole motives for the suggestion made by the Com- mission. The principal reasons which prompted the selection of .llli 116 JUDICIAL BEFOBMS. assistant judges from among the advocates, was the impossi- bility of continuing to take them from the Bench of the Superior Court. "We have already stated that the new sub- division of the judicial service will require the continued presence of the judges of the rural districts, at their chefs-lieux, and the multiplicity of business will prevent the judges of Quebec and Montreal from performing that duty. The raising of the quorum of the Court of Appeals, from four to five judges, which will be proposed by the Com- mission, when the reforms to be made in this Court will be . discussed, will, on the other hand, render more numerous the causes of the incompetence of these judges, and require more frequently the services of the judges of the Superior Court, and will increase the inconvenience resulting from their removal. The causes for recusing assistant judges, will naturally be the same as those of ordinary judges. The law res- pecting them takes on this point, precautions to prevent the appointment of incompetent assistant judges, and to remove, not the danger, which is not feared, but the suspi- cion, of any partiality on their part. The same law gives in detail the reasons for the creation of the office of Advocate-General. As to the salary of this officer, it provides that it shall, at no time, exceed the amount of the fees now paid to the advocates of the Crowt, when they represe; t it in cases to which the Advocate- General will in future attend. A provision which will prevent the imposing of any additional burden upon the public treasury. The two following Acts, prepared by the Commission, complete the suggestions set forth in the course of this work upon the division of the province into two jurisdictions, the appointment of a second chief justice, and of an Advo- cate-General and assistant judges. i:'.,i! II. iH -. II M V 1' ^n 'I \ ni lUDICIAL RE0E0ANI2A.TI0N. 117 An Act to divide, for judicial purposes, the Province of Quebec into two jurisdictions, and to appoint a second Chief Justice of the Superior Court. Whereas, by article 1117 of the Code of Civil Procedure, it is enacted that "proceedings in error or apped from judgments rendered in the districts of Montreal Ottawa. Terrebonne, .Toliette, Richelieu, St. Francis. Bedford, St. Hy^cinthe, Iberville and Beauharnois are brought, heard and determined In the City of Montreal, and the wnt is made returnable there, and the like proceedings against iudo-ments rendered in the districts of Quebec. Ihree Riv'ers. Saguenay, Chicoutimi, Gasp6 Rimouski^ Kam- ouraska. Montmagny, Beauce and Arthabaska, are brought heard and determined in the City of Quebec, and the writ is made returnable there." Whereas, by the laws at present in force, the appointment of assistant judges for both jurisdictions of the Court of Appeals, and for the Superior Court in the whole province, iu case of the accidental incompetence or incapacity ot the ordinary judges of both Courts, falls within the privileges of the chief justice ol the Superior Court alone ; Whereas, this duty, which extends over the whole pro- vinccimooses an excessive supervision upon that officer, and the extent of the sphere within which it is exercised, renders its fulfilment difficult ; Whereas, by reason of both these inconveniences, it is expedient to divide this duty between the chief justice and another judge of the Superior Court, and for that purpose, and for several others set forth in the new laws, it would be expedient to formally recognize the above mentioned division of the province into two jurisdictions, to limit the responsibility of the chief justice to the appointment of assistant judges for the Court of Appeals and for the ix,^ 118 JUDICIAL REFORMS. f" Oul?"""'''/?'"^ ^""" "'"'"'°" oftho jurisdiction ot Quebec, and to mvost another iud-e with simile ss^aiiirr' '- thecourt^of a;p::,^t/ Montreal, and the different courts of the Superior Court within the hmite of the jurisdiction of Montreal ' sen?nf !^'t' ^"\ ^^'•^■''^^' ^5^^"^ ^'^*^^ *^^« -'l-ic'e and con- sent of the Legislature of Quebec, enacts as follows • 1. The province of Quebec is, for the purposes of the Superior Court, as well as for the Court of Ip^LTdhided u sdrclir:^^^^^^^^^^ or jurisdictions, the'ilrst c'alledthe tZ:T ^ ^^'°' ^°°^Po«ed of the districts of Quebec Three Rivers, Saguenay, Chicoutimi, Gaspc, RimousH Kamouraska, Montmagny.. Beauce and ArtLba kT atd the second, composed of the districts of Montreal. Otta"^ IZ T"\u^'''''' ^'^^^^^^"' St. Francis. Beiford St' Hyacinhe, Iberville and Beauharnois, will be caC the jurisdiction of Montreal. ® 2. For the purposes of the formation of these iurisdic tions, the tribunals of the Superior Court and tL Tudts ppomted thereto shall belong to the jurisdiction wiS the limits whereof their districts are situated 3. The City of Quebec shall be the chef-lieu of the juris- diction of Quebec, and the City of Montreal that of he jurisdiction of Montreal. ® 4. The chief justice of the province, whose olHce, with ts .ties, rank, privileges and prerogatives is cont nu d shall preside over the jurisdiction in which he resl n1' soon he hall continue to reside in theCt;;^^^^^^^ he shall preside over the jurisdiction of Quebec onf of t'h^'Tr'^^'^T"''^ '^'^' ^^°^'"^^« «1^-" appoint one of he judges residing at the che/.Ueu of the other junsdiction, to be the I>r^«W.«f ,x.'. , ! ^^? f^.^'^ called th«r!y„-.fT„....-:;rr:T';""^®"^' ""« ^^ shau be called the Chief Justice of tha~t j-urisdIc(ion. So long as the It JUDICIAL RKORQANIZATION. 119 Chief Justice of the Province shall be the President of the Quebec jurisdiction, the President of the Montreal jurisdic- tion shall bo called the Chief Justice of Montreal, and, vice versa, if the Chief Justice of the Province becomes the President of the Montreal jurisdiction, the other Chief Justice shall bo called the Chief Justice of Quebec. 6. The Chief Justice of the Province, or the first Chief Justice shall preside over the conferences of the judges of the jurisdiction over which he presides, as well as the conferences of the judges of both jurisdictions united ; the second Chief Justice ^hall preside over the conferences of his jurisdiction, and those of both jurisdictions united, in the absence of the first. 7. The objects of these conferences are stated in the Act creating the office of Advocate-General, in the laws of judicial reorganization and in the Code of Civil Procedure. 8. Each Chief Justice shall, in his jurisdiction, see io the appointment of assistant judges for the Superior Court and for the Court of Appeals, and to the replacing of judges who are incompetent or unable to sit in the Superior Court, by other judge of the same Court, and shall, in addition to his dutie'.. as an ordinary judge of the Superior Court, perform the administrative duties imposed upon him, as well by this Act as by the laws just mentioned. An Act to create the office of Advocate-General. Whereas, by reason of the political functions exercised by the Crown law officers of the Province, to wit : the Attorney-General and the Solicitor-General, which occupy all their time and prevent them from attending to the juridical duties of their office, it has become impossible for them to represent the Crown before the civil and criminal courts of the Province, as well as to immediately superintend 120 JUDICIAL REFORMS. the administration of justice, and whereas the fact of these officers not taking part in judicial matters has resulted in the rcprehensive practice of employing private advocates to represent the Government before all the Courts of the Province, without subordination among themselves and without any special responsibility on the part of any of them towards the Crown and the public, all of which tends to create confusion in the administration of justice, and to considerably increase the cost thereof ; Whereas also, since Confederation, there have arisen, and still arise daily before the Courts, in suits between private individuals, questions of legislative conflict between the Federal Parliament and Provincial Legislatures, and more especially that of this Province, without there being any legal means of permitting the Government to intervene and defend the legislative prerogatives and the rights of the Province, thus constituting an omission which is prejudicial to the public interest ; Whereas, in fine, it has become urgent that these inconveniences be removed, by establishing, with such modifications and such increase in the powers and duties necessary to adapt it to the new requirements and present position of the Province, the office of Advocate-General, similar to that which heretofore existed in the Province of Lower Canada before the Union of the Provinces of Upper and Lower Canada, and which fell into disuse under subsequent regimes ; Therefore, Her Majesty, by and with the advice and consent of the Legislature of Quebec, enacts as follows : I. The office of Advocate-Gcneral is hereby established, with the functions, duties, powers, prerogatives and salary, hereuiafter mentioned. tHill JUDICIAL REOBOANlZATtON. 121 ! I i I a. Such Advocate-Geueral shall be appointed by the Lieutenant-Governor in Council, and be selected from amongst the Queen's Counsel of this Province, and his Commission shall be issued under the Great Seal of the Province. 3. The following are the functions, powers, duties and prerogatives of the Advocate-General : 1. He superintends the administration of justice and the carrying out of the judicature acts ; he informs the Attorney- General of the errors and infringements of discipline com- mitted by judicial functionaries and officers of justice of every rank and position, performing their duties before the Courts, and suggests such reforms as are calculated to suppress such infringements, to secure the proper working of the Courts and improve the judicial system ; 2. He sees that the Courts of original jurisdiction and of appeal are regularly held, and that assistant judges {Juices' suppliants) are appointed to replace the judges who are unable to sit in such Courts ; 3. He sees to the maintenance of judicial dignity and to the preservation of the franchises, priviLges and preroga- tives of the Bench and Bar; 4. He represents the Crown in criminal cases ; 6. He intervenes, before the Supreme Court, as hereinafter set forth, and before the Civil Courts of the Province, of any jiirisdiction whatsoever, in all cases between private individuals, in which any question may be raised as to the constitutionality of any Act of this Province or of the Federal Parliament, and takes all necessary proceedings in connection therewith ; 6. Finally, he convenes, in both of the jurisdictions of Quebec and Montreal, the conferences of the judges, of batoQniers oi ine oar, uuu ui liuvucatco, vr^vsvu »^; »aw 122 JUDICIAL REFORMS. laws lospcctinij judicial orgauization and by the Code of Civil Procedure : a. To fix the terms of the Superior Court in the A-arious districts. b. To make the appointments of issistant judges, selected from amongst the advocates, to replace judges who are unable to sit in the Courts of Original Jurisdiction and of Appeal ; c. To make rules of practice and tariffs of fees for advo- cates and executive officers, before the Superior Court ; d. To carry out all the other provisions enacted by the Laws of Judicial Organization, the Code of Civil Procedure, and any other law. And, at all these meetings, he is the promoter of all the proceedings and sees to the carrying out of all the objects of the meeting ; 4. In order to give effect to the foregoing sections of this Act, it is also further enacted as follows : The Attorney-General shall, from time to time, assign to the Advocate-General the Courts before which he shall personally appear for the Crown and represent the Govern- ment, and he will entrust individual advocates, selected on the recommendation of the Advocate-General, with this duty before the Courts of Criminal Jurisdiction, where the Advocate-General will not himself appear. 5. These advocates or representatives of the Advocate- General, shall be under the superintendence, authority and control of that officer. 6. Fifteen days, at least, before the date fixed for the usual holding of a term of the Court of Queen's Bench, Crown side, the clerk of the Crown in all the rural districts shall forward to the Advocate-General the charges, com- plaints and informations lodged in his office, the evidence Ji'i I' I i liif i X JUDICIAL BKORQANIZATION. 128 and documents showing the proceedings thereon, and aaer examining such documents, the Advocate-General shall decide whether it bo expedient that such term be held, and shall report his decision to the Attorney-General, and thereupon the latter officer shall give the necessary instructions to the Sheriff to summon the jurors, wl mever it is deemed expedient that a term bo held. 7. The Advocate-General shall also decide, in every case, whether an indictment or information shall or shall not be submitted to the grend jury on behalf of the Crown; he shall notify the clerk of the Crown thereof, and his decision shall be acted upon. 8. It shall be the duty of the Advocale-General, whenever it may be necessary, to' confer with his substitutes, the Sheriffs, clerks of the Crown and all other officers of justice, as to the most effective method of administering justice in criminal matters within their respective districts, and of holding terms therein, and it shall be lawful for each of such officers, at all times, to obtain, without fee, from the Advocate-General, his opinion and every information they may deem requisite on any point connected with the duties of their respective offices, and with the administration oi justice in ciiminal matters within their districts. 9. On the other hand, it shall be the duty of these officers to obey the lawful orders and commands of the Advocate- General in all criminal matters within the limits of their functions. 10. No account of a substitute for fees or emoluments, or of a sheriff for costs of summoning, taxation of witnesses and other similar disbursements, shall be paid or recognized by the Government, unless they are previously examined and approved by the Advocate-General 124 JtDlOIAL REFORMS. or n,ake new ole fo^ "„ ,' Z '''•"""'" """"= '"""■'• establish the condition (J/^w tor''" "" '"" ■""" the law. in force „„ the sub et") '„ "ri"' T'"''""''"^ shall receive corane„gatio,iT' ?> "'' ""='' w"nos»o« determine the ZCTZ '" "°"" "' "■"" ^''<1™«: and other oTicer of iuj , '""''T""' "^ "'» »«'«titulos necessary retCs il'rdoru.p, '" -" """•^™' '""'' "" of the /uhlic serv ;fo j'wL7r'"'''^*''''«'''°'«""^ jndiciou, retrenchmc, t h, th • ■ '° ''°"°"''' '""' criminal n.alters. "dmm.stralion of justice in the'Llr:'':" tre F:j::r"f ;"''-°-'"^ -^-^ ^- -^ before the Courts of Or ,^ J'" 'ameut, shall be raised unless the party r:iL?',;?::„f "'<''=«» T " ^^^^'' he has, at leasuhree days before -^7' "''■''°"" "'"' to the Advocate-General „r,l '''" .''™""S. S'ven notice to raise, with sufflc e't i r ''"T"" "'""'' "« '""••"I. understand the n^tt of , f ™'' '"" '° »■-"''» """ '» notice, the Advocate-Genera shanT"'"' '""^' "P°" ™«'' behalf of the Crown and ,,£' ""="'''™ "' ">" '"'"• "n questions, and the jud 'mert oAr?."' '" '"'"'"» °» ^^^ or refuse his conclurio^ri 11 ^°'"''' "''"*'"• "grant and such couclustr ; whi h^rf;^""'', '"*^'-»"<'» « ii the Advocate-Ge'nerarwe™ a"p:;;r;'trrht,^^''=-»'. Acr;r?h: t sx'sr7,,r '-" ^--^ » practice, authorizini^ thT « . ' '"'™ """J" » "»'« of before the Supre\titS-«-^^^ *° ^»'^-- case in which aquestion nfLt Province, in any ng section shall be raised, it shall also be the JUDICIAL BEOBOANIZATION. 125 ^•f h; duty of tho Advocate-General to intervene therein on be- half of the Province, and take such similar conclusions as he may deem proper. I'l. No complaint against an advocate shall be tried by a council of a section of the bar, unless it has been previously submitted, with the documents in support thereof, to the Advocate-General ; and, iu any action before the said council against such Advocate on any such complaint, it shall be lawful for the said Advocate-General to become a party to the suit, in his official capacity, and to take issue for or against the complaint, as he may think proper, and the judgment on the complaint shall mention his intervention, and the issue he has taken, whether the judgment supports the same or not. 15. The Advocate-General shall represent the Crown in all civil cases of any jurisdiction in which the Province is a party or is interested. B6. During the inten'al between the issue of the proclamation fixing the date at which the laws of judicial reorganization and that relating to the Code of Civil Procedure shall come into force, and the date of their so coming into force, the Advocate-General shall prepare : 1. A Craft of regulations or rules of practice for the Superior Court, applicable to all the Courts in the districts which compose it ; 2. A tariff of fees, salaries and emolument of advocates and attorneys, and of the exec]iti\ e officers, the determining of which, under existing laws, is not within the province of the executive council ; 8. A table for each of the jurisdictions of Quebec and Montreal, of the terms of the first division iu each of the districts composing the same : .♦-» t m 126 JUDICIAL REFORMS. J\^.^Z n ^^'"^ ^s^i^^'^^i JuJses {/uffes-supp fronts) for the Suporior Court and tho Court of Appeals, one for tho jurisdiction of Quebec and the other for that of Montreal' selected m each jurisdiction and without distinction.' 1.1 all the sections of the bar. of the districts which com ' pose It. from ainons-st the Queen's Counsel, ihe members of the General Council and the Councils of sections .f the Bar and the Advocates having the requisite number of years of practice, toquali,- them to be judges of such Court. The number of assistant judges shall be twelve lor the jurisdiction of Montreal and six for that of Quebec. 17. After having prepared such draft of the rules of . practice, table of the terms of the first division for the atd in Hp'r T' f"^^^'^''^"' ^-b'" of assistant judges and tar If of advocates, attorneys and executive officers, fhe Advocate-General shall convene a conference at Quebec of al the judicial body of the Province, to which ^^ 'be called all the Judges of the Superior Court, batonniers of the general council, and of councils of sections, and, in the dr- cults in which no batonnier resides, the senior Queen's Counsel, and. in default of Queen's Counsel, the senio practising advocate of the circuit. nf ^1' ^\'^'^! t^'^ '°"'''"' "^^^^^-^^ conference at Montreal, died ihf" 1 '°^^,^^^'^^^-i^--^-tion. to which will be called the judges batonniers. Queen's Counsel, and the senior advocates of the jurisdiction of Montreal, who are entitled to be mvited to the general conference at Quebec The same notice convening the persons invited to such conference's shall serve for both. and. with each notice, the -d^u^uic-vTeneral siiali forward a copy of the rule, of practice of the tariff, of the tables of'Lrms. ^ J o thJ asMstant-judges, which he has prepared. ih 1 ( \ 11 t j ^i ): ' JUDICIAL REORGANIZ&.TION. 127 19. The general conference held at Quebec, which will bo attended by all the judges of the Superior Court for the whole Province, the batonniers. Queen's Counsel and senior advocates above mentioned, and the Advocate-General, who shall bo the promoter of all the proceedings and delibera- tions, shall be presided over by the Chief Justice of the Pro- vince. 20 At such general conference, at which the batonniers. Queen's Counsel, senior advocates, and Advocate-General shall be entitled only to express their opinion, the rules of practice and the tariff applicable to the whole Province shall alone be taken into consideration, and if they are adopted, with or without amendment, by a number of judges forming the majority of all ju Iges of the Province, they shall become law. 21. The object of the general conference being attained by the adoption of the tariff und of the rules of practice for the whole Province, the judges, batonniers. Queen's Counsel and senior advocates of the jurisdiction of Montreal shall withdraw ; but the Advocate-General shall remain, and the general conference shall then become a special conference for the jurisdiction of Quebec. 22. In this special conference, ove^ which the chief jus- tice of the province shall continue to preside, and which shall be composed of the judges, batonniers. Queen's Counsel and senior advocates of the jurisdiction of Quebec, ■ and at which the Advocate-General shall continue to act as the promoter of ai; the proceedings and deliberations, the lat- ter Khali produce the tables of terms and of assistant judges, which he shall have prepared for the jurisdiction of Que- bec, and, at the same time, lay before the conference a list of all the members of the councils of sections, the Queen's Counsel and the advocates within the jurisdiction, having ''rr7fi-f^i^^«»'»-—»-. 128 JUDICIAL REFORMS. ten years practice, who are eligible as assistant judges, and whose names are not already entered on the table'so'pre- pared by him. Amongst the persons inscribed on the table and the lists the SIX who shall obtain the greatest number of votes from' the members of the conference, shall be appointed assistant judges. The tables of the terms of the first division, for the whole jurisdiction, shall then bo taken into consideration and shall come into force, with or without amendment, if they be adoptod by th3 number of judges, forming a majority of all the judges of the jurisdiction. In the absence of the chief justice of the Province, the chief justice of Montreal shall pxeside over the two conferences in Quebec. 2ti. At the conference in Montreal, which shall bo com- posed of the judges, batonniors, Queen's Counsel and senior advocates of the jurisdiction, presided over by the chief justice of Montreal, and held in accordance with the rules above prescribed, at which the proceedings and deliberations shall bo the same as at the special conference for the juris- diction of Quebec, and at which the Advocate-General shall also produce, with his table, a list of all the members of lae councils, of sections, the Queen's Counsel and the Advocates, having to:i years practice, who are eli-ible as assistant judges for the jurisdiction of Montreal, and whose names are not already inscribed on the table prepared bv him ; the twelve persons iiiscribed on such table and on such list, who shall obtain the greatest number of votes from the members of the conference, shall be appointed assistant judges. The table of terms proposed by the Advoca e General for the districts comprised within the jurisdiction shall then be taken into nnn«id-«*io^ .^d shall become law if it be adopted, with or without amend- JUDICIAL REOBOANIZATION. 129 r!lil M ment, by two-thirds of the judges present, composing the majority of the judges within the jurisdiction. \ 91. If, at any of the above mentioned conferences, the rules of practice, the tariff and tables of terms do not receive the assent of the judges present in the number required, such rules of practice, tariff and tables of terms and of assistant judges, prepared by the Advocate-General, shall come into force. 25. It shall bo the duty of the Advocate-General to forward to the executive council a duplicate of such rules of practice, tariff, tables of terms and of assistant judges which have so come into force for each jurisdiction, and another duplicate to each clerk of the Superior Court for the Province, and such Advocate-General shall also cause such niles of practice, tariff and tables to be entered in the registers and posted up in the office of each Court, and the minute of the enregistration shall contain a statement thereof. 9G. On receipt of such rules of practice, tariff and tables, the Government shall issue a proclamation declaring them to ha in force, on the same day that the laws respecting judicial reorganization and the Code of Civil Procedure shall come into force. S27. Before effecting the registration and posting up of the table of assistant judges, the Advocate-General shall nevertheless notify each of them of his appointment, re- questing him to accept the office, and every assistant judge refusing the same shall be replaced by the Chief Justice of the jurisdiction for which he was named, with the concur- rence of the Advocate-General, by another advocate having the qualification required by sub-seciion 4 of section 16 of this act, for ulling this oil.co, and ih@ registration and ■i r 130 JUDICIAL REFORMS. posting up of the table shall be efTocted only when the requisite number of assistant judges shall have signified their acceptance. iJS. Whenever the services of an assistant judge are requu-od hi a case in appeal and in the Superior Court, in either jurisdiction, the clerk shall give notice thereof to the Advocate-General. 2». Within the three days preceding each term of the Court of Appeals the clerk shall submit to the judges the list of cases inscribed on the roll of the Court and each judge shall notify him of his inability to sit in any of such cases. I»' 1 ! .1 li' ■ ' JUDIOUL BSOBOANIZATION. 138 41. Immediately after tho election of an assistant judge, the Advocate-General shall notify him of his appointment, by letter or by telegraph, if he belongs to the bar of another district than that in which the Advocate-General tesides, and if the assistant judge appointed be not incompetent or debarred from acting, and if he be not prevented by any other inability, ho shall accept t^. = ' .'>intment, and at once, on receipt of the letter or tde^ iotify the Advo- cate-General of his acceptance. 43. Every assistant judge, who, in addition to the legal reasons which might render him incompetent or recusable in the case, if he were an ordinary judge, might have a moral or pecuniary interest, or might have an advantage to gain or damages to avoid, by favoring one of the parties, shall not be competent, and shall declare ths same to the Advocate-General, while refusing the office of assistant judge. If he accepts, he declares the opposite. 43. "When r my reason whatsoever, an assistant judge does not accept such appointment, he shall likewise notify the Advocate-General who, upon such refusal or after a resonable delay has elapsed without any answer being received, and under any other circumstance rendering acceptance improbable, shall make provision for th« re- placing of such assistant judge and he shall act in like manner for the second or any other nomination which is not accepted. 44. Immediately on being notified of the acceptance, the Advocate-General shall give notice of the appointment to the clerk of the Court for which the same has been made, and the latter shall inform the assistant-judge of the day on which his services will bo required. ' 45. The assistant-judge, the Chief Justice, the Advocate- n If.fi 184 JUDICIAL KKFORMS. General, the clerks of both Courts, as well as the ministers cf the Crown shall not reveal the appointment of the assistant judge, who shall not be known before ho assists at the hearing of the case for which he is named. 40. The assistant judges shall, as set forth in section 42, be subject to the same recusations and the same causes therefor, in addition to that mentioned in the said section, as ordinary judges, and a party who declares that he has reasons to allege with reference to the incompetence and the recusation of an assistant judge, may obtain delay to do so and for that purpose demand that the case be con- tinued. 47. Upon such statement of the party, as well as upon the recusation, the assistant judge shall make a declaration as to the facts relating to such statement, according to the knowledge he has of them, and even if such facts do not constitute legal inability, he may abstain from sitting if the Court think proper and another assistant judge shall be appointed in his stead. "^ 48. In the event of a recusation being filed, it shall be decided as ordinary recusations, but the proceedings shall be continued irom day to day, and the ordinary judges, "who are not incompetent, shall decide the same. 49. The assistant judges shall, in virtue of the present Act, have the same powers as the judges of the Superior Court, appointed assistant judges under the laws now in force. •50. If, owing to absence, illness or any other impediment, a judge of Appeal, should, at any period of the year, become U( li ' * In thia cue thera would be an exception to the rule which forbids the judge to withdraw. .'■ I ' iH ! JUDICIiL B150B3ANIZATION. 135 incapable of performing hi» duties and after the Chief Se ot tl.o Court of Appeal or the .en.or pmsne judg^ (if the Chief Justice be incapable of acting) and the Ad^o cat Reneral have conferred together and are of oprnton that oX to the circumstances and the probable duratron 'ft Mobility, it is in the interest of the Ij-a-cK.! --- that a substitute be appointed m the place » "f ^^^^^ »^ such iud^e, on their joint report to that effect to the Chtef Justice of° ho Superior Court, one of the assistant-judges shl be Ippoint/d, by ballot, in *» J-'^'r ^^:„:,'",t the iud-e, who is unable to act, resides, m the mam cr set tne juuoi, n j^ appointment of an forth in sections oo and 3G, as n lor ino iv ordinary assistant judge, to replace the udge m App«a. while the inability of the other judge jf '■ J^» '^^^ shall (Tive notice to the Chief Justice and to the ass.st^t udX-n as his inability ceases, and thereupon the powers of the assistant judge shall cease, "f however, the assistant judge is, at the time, seaed of J;:! under advisement, his powers, m connection with such ease, snaU — e -tiUt e d.spo.d of^^^ ^__ prlviregcs of u. oidinary judge of the Court of Appeals. Si. The assistant judges shall also act as assist^t judges ,>.«...«»»;) of t^eCourto^^^^^^^^^^^^^^ r;:^rd:"xratthecourt.fAppeai.. ^i It Shall be the duly of the Advocate-General to see according to Article 96 of the new ^ , ' ^,bing the work- of the Superior Court cannot, without disturbing in ^li.' I "1 186 JUDICIAL REFORMS. mg of the Courts and preventing their being regularly hela. be selected from amongst the ordinary judges, such substitute shall be selected from amongst the assistant judges, by the Advocate-Gencral and the Chief Justice in the manner above set forth. 53. The annual salary of tlie Advocate-General shall not exceed the average amount of the fees paid yearly, durin- the five years previous to his appointment, to the advocates charged with the duty of representing the Crown before the Courts before which the Advocate-General shall himself represent it. REMARKS UPON THE TWO PRECEDING ACTS. These Acts present, in their application, matters of principle and of detail, of which we must treat separately in our remarks upon them. The organic principles of these acts are to be found in the provisions which relate to the division of tlie Province into two jurisdictions, the creation of the office of Advocate- General, and the appointment of assistant judges Ijwres. supplants) from amongst the members of the bar To the objects already specified, and which necessitate the holding of conferences by the judges, and the exercise of special powers by each Chief Justice within his juris- diction others may be added in time, which it would bo difficult to enumerate now, but which it is not impossible to foresee, however vague may be their foreshadowing. Hitherto the judges have studiously refrained "from approaching the Legislature in connection with le-al reforms, which their representations would have so power- fully contributed to effect, and have left to the bar the duty of obtaining them. And yet it would seem to be the duty of the Bench to enlighten the Government as to the LL 1. ' > r I JUDICIAL REOROANIZATION. 187 insulficioncy of the Judicature Acts, and as to the obstacles which their defects oppose to the proper working of the Courts, and there is nothing which so impedes the progress of jurisprudence as the projudice which denies to that body the opportunity of giving the benefit of its experience to judicial legislation, and of taking an interest in legal matters, in any other way than by judging them, and which forbids it to throw the light of its counsels upon their improvement. Surely it is not by so benclicial an interfer- ence that any violation of the principle of complete separation of the legislative and judicial powers would occur. To the remonstrances of the old Parliaments, France was indebted for its best laws, and, in the conferences of its judges, the forms ol its judicial legislation, at various pe- riods, found birth. The perfection of the French Codes is, in a great measure, due to the observations of the highest tribunals. Moreover, our own laws are not opposed to the spirit of these precedents, which they have ev^n imitated. Did not the act which decreed the Codilicatioii of our Civil Laws and of our procedure, order the judges to participate, by their remarks, in the work of the Commissioners and to advise them ? Their having refrained from doing so on so important an occasion, was a very regrettable fact, from which the merit of our Codes and especially that of the Code of Procedure, has seriously suffered. The House of Assembly, on the recommendation of the Commission, created last session from amongst its own members, a standing Committee on Legislation, one of whose duties is to reform the judicial system, and to find means of improving it. What is there 'o prevent this Committee from asking the co-operation of the Bench of each jurisdiction, which, in the confereuces convened by the Advocate-General, as we have r' ewn above, and com- 138 JUDICIAL REFORMS. posed of tho judges and of the bar, represented by the batonniers and Queen's Counsel, would enlighten ii with its knowledge and assist it with its experience ? And how many similar occasions may not arise in the future, in which such conferences would be beneficial ? The enforced residence of the judges of the circuit at the chef-lieu of their district, has occasioned tho choice of assistant judges {j uges-suppUants) from amongst the mem- bers of the bar. To the motive brought forward in support of this innova- tion, objection mr y be taken, that in many circuit districts there is not sufficient business to give constant occupation to the judges, that there are even some in which the insignifi- cant number of suits hardly occupies one-fourth of their time. This may be true, but it is equally true that, neither in establishing a judicial system, nor in any other matter of public interest, can we be guided by exceptions, and that tho rule fixing quarterly or less frequent terms in such dis- tricts, even if its application would not be as suitable in some jurisdictions as in others, must be extended to all. Now, as the sittings of the Court of Appeals, which, as will be seen hereafter, will be required, as well as the Superior Court, to sit permanently, must necessarily coincide with those of the latter tribunal, how can we, without interrupt- ing or suppressing them, compel the judges who hold them, to sit in a strange Court ? On tho oihcr hand, is it quite true that, undo* the new system, the oflico of judge, oven iix tho jurisdictions which are the least troubled with business, will be a sinecure ? On this point the want is felt of a reform which has not yet been suggested : the abolition of the judicial power now «»njoyed by the prothonotaries and notaries in non-con- tentious proceedings, such as family councils, as well as the jurisdiction in contentious proceedings vested in the i:y "^ JUDICIAL BKOBOANIZATION. 189 Mr''. I I I 'i'l ' :r 1 .1 nrothouotaries alone, for certain urgent matters, and the restoring of such power to the judge of the Court In principle there is no distinction, as regards competence, between jurisdiction in contentious and that in non-con- telus proceedings. Both ere derived f-m the ..me power, and it is only the magistrate clothed with the nght to judge and to whom the judicial authority is delegated. who is vested with it. r i „,.«« Owing to tho scarcity of judge tho aw conferred upon nrothouotaries. at a now distant period a portion of th.. power, but the time has now come when, ow.ng to the fudges being sufficiently numerous for the r.qu,remenvo of both jurisdictions, it has become necessary to revoke th« dismemberment of judicial authority -""l ""», ^"°S^''°;^ from the laws of competence which have ?■"» "'^'o'^X and imperilled the civil status of persons I'bojmg under disabilities, who are placed under the safe-guara of the law and the protection of the CourU, «s.sted by tl-o ad™« «f their relatives. These persons are minors, the in ane, absentees and all others deprived of the eiercise of their " Wh« b more important fo. the protection of families and of those who are interested in tkso acts than the appoint- ment of tutors, the sale of property belonging to minors, Te interdiction of the insane and of prodigals, eura orships absentees, and so on for all the ac: of -f-'^f^^^ jarisdiction performed every day by ""'J'™' "J,*^ °'? ^ ; without examination, without any knowledge of the subject Id with a sham obser>-ance of the stnct and solemn ?„maTities required by law in such oases, f ""'y «"7 ' iu this country have become a -^^ J^^^^H^^^Tll indeed, since they have baenremoveairoui ^= .u.....— of the indues alone, they have over been anything else. The^^^srequir;, on p«i» of »«Uity. that the famUy 140 JUDICIAL RKF0UM8. council be composed of tlio nocrest relatives of the parties laboring under disabilities, and it is only when it is proved that no such relatives exist, or, if thoy do, that they have been duly summoned, that thoy may bo replaced by what It has become the custom to call ihoftiends of the family * 1 l.tvT7' TX' -"I-itionof f.,nil, council, and which wc confide our duty to, KMnt out hero. In nppointinp curator, to absentee, to intordicu-d person,, in R.ncral or Bpecial tutorship, to minors, in anthori.inff I. a lo of t .ei, property or .n other proceeding, which n.p.ire the advice of rulati re, t,c. onmry to hnns to the f.unily council, ..friend,, per.on, who not only a o no on fr.en,Jly or .nt.n.ate tern., with the absentee, the person tn be interdicted or tLiJ artirt.'^" ;"""" """■" '" '"•^'"'--"•'y -«--y to Justify their tak ng r rt in the .neel.ng, ayco. a,,.Uarc d.M.u, non levi nnlUia co,^uL,, s.l ,«,7.« /u.r, jura cu,n pa,n./.,n.iU,u Uo,.,iU Jan^Ui.rUaU, ,ur.Ua raLihu. (D. I. m. ahsentecnnd who, .n n,o.t eases, tender the advice they havo been instructed beforehand to ^ive The :„i„utes of the proceedings of the Lily council ^lu them "Irrproc'dinir " ""'"'""'" "° '""«" ""^ P-t..onotarie, homologate It is by thi, means that a bad custom may sanction tutorship, damaging to the ZZ'-^ir" ! •'"•*'' •"■'" ''"'■■ '""'""^' """ K'^" ''•'« ^ *» i'-I'^er inter! forence m the administration of th- property of absentee, 397. To obviate thi,, the oflinu to whom i, confided the duly of taking the and mmors, as well o, of the other person, on whose behalf the family council i, convened and the.r degree of relationship ; ascertain the number of rola'tive 1 ng and the.r rcdcnco and whether they arc in the neighborhood , ,eo that the ncare,! relauve, m each l.no and in their default that the next rela ive, in both line, or u one of hem. as the case may be, are present or have been summoned nd no accept rela .ve, from auouts.de district unless there are not BufBcient reiaUre. residing in the district in which the appointment i, made 398. As to the friends, in the event of there not being a aulHcient number of relative, and connection,, they should not be admitted to form part of the familr Z h r"'7 .f ' Tr "" ''" -q-'-n-u above set forth and when ^ Lair TT '"'"' "' '''' ''"""'' '"' ^•'"'='' '•'^ <=°""<=iH, convened to enable them to give proper advice, all of which the officer can ascertain br quesuoning the re at.ves the person, composing the family council and those whJ have applied for .t, and by all such other means a, he may see fit to hare recor«^ Whenerer the composition of the council appear* to him to be defecUre or at ranance with the above-cited arUclcs of the Code, and that it doe. not posses. ir if'i '>l: H JUDICIAL REOBOANIZATION. 141 If the records of the Courts be consulted, it will be seen that more than one-half of these councils are composed, to a greater or less extent, and often entirely, of friends m default of relatives; and who are these friends? Most frequently they are strangers who not only have n^ver been on friendly terms with the family of the incapacitated persons or the persons themselves, but who are even i' <=»»" of justice, to ™;.*^7.""'^^'°«. i» ao first pages of this worl, proposed to etam th,s court; not, however, such as it has become but such as instituted and as it ought to have rematoTd It IS, m fact, and rightly so, a court of equity whTchthe Comm.ss,on wishes to retain, and in that Ise wm fttW on, propose certain changes. The County Court, which is to replace the Circuit Court W.H be . court of summary jurisdiction «.d .f ijt r^Zt '.I 'i ! r .1 n ■II ■'(' -1 3 JUDICIAL REOROANIZATION. 146 Summary jurisdiction is that which, as a general rule, does not require technical forms. Excepting the summons and judgment, which should contain the substantial forms of suits, the other proceedings are not subject to any formalities whose non-observance would involve nullity. "With the exception of this summons and judgment, the other pro- ceedings, even the pleadnigs, may be oral. It is this procedure which we propose should be followed before the County Court, as more suitable to a court created to decide suits of small importance and trifling matters, in which simplicity and the needful rapidity are better served by summary forms than by the slower and more complicated progress of the regular forms. In the draft of the new Code of Procedure, we will make the procedure of the County Court follow that of the Superior Court. "VTe will be content, before passing to the Court of Appeals, with determining here ery briefly the jurisdiction and competence of the County Court. "We will discuss it at greater length later on. As already stated, the County Court will be held wherever the Circuit Court is now or could be held, and the conditions of the establishment of the former will remain those of the latter. • The jurisdiction of the Court will be that of the Circuit Court at Quebec and at Montreal, whose competence has been reduced to $100. "We must, however, be precise. The County Court shall have jurisdiction over all suits in which a sum of money, or article appreciable in money, is claimed, that does not exceed $100. So that all actions for that amount, personal, real, and mixed, will fall in that category. "When a sum of money is claimed, the amount for the jarisdiction is already established, but when it is a real right which is in question, an immovable, a servitude, the 10 146 JUDICIAL REFORMS. estabhsn.nn; of a boundary, as the object of the action may be accurately decided upon and delivered, without the pecuniary value being in question or without such value the Aaluationisnot made either in the demand or in the .,«n.d,ction It IS for this reason that, in general, judi- cature acts do not allow interior tribunals to take cognizance Court ' ''''"'"'^ ''''" '""'"''^y ^'' '^'' S»P«"or But this is only an imaginary difficulty, with which 2d;frerence.stooeasilysatislied.inordertoinLasethejurs. d.c ion of the superior to the detriment of the inferior court. on the immovable claimed or value the real right or the pecuniary damage which the plaintiff will suffer by the los! of such right ; let us take, for example, an acUon nejtole t e wilT T '' '1:' "'''''' '""°"^» ^^' the%ervft de which he wishes to be freed from, in an action to settle boundaries, the continuance of the undivided ownership and so on in all the other cases in which the demp« mlv be converted into a sum of money, although it may not hi ttob' 7 *,^,r°-^-^--' -^ - undet:rmined 'thinl I- the object of the suit. In all these cases, it would be the value which would determine the amount for the Tut diction. If the plaintiff has increased it. he would Tin the ame position as one who claims before the Superior Court, a debt which he should have claimed befor he inferior court, and which he increased so as to escape from his natural judges; he would suffer the penalty of „eh - ncrease by being obliged to bear the additional cost oTa flioned by him to the other party. If wo do not have recourse to this method, we must come to the conclusion that personal actions aloiJcan be I I 5 t iiii JUDICIAIi REOBQANIZATION. 147 brought before the County Court, and that real actions, however small their interest, escape from it or perpetuate the evocation to the Superior Court. We have already- seen the evil of this. There is, however, a class of actions which, from the importance of the matter in litigation, should go to the Superior Court, these are questions of statue, such aa actions in separation, actions in declaration of paternity, prerogative writs, except the writ of certiorari, which is now within the jurisdiction of the Circuit Court ; in a word, all personal actions that cannot be converted into money or are not sus- ceptible of a pecuniary valuation. We will see later, by whom the County Court judges should be appointed and paid, and what are their functions, when we enter into the details of the organization of the Co".rt. It would be premature to do so before the idea itself is admitted. The outline having been sketched, we will fill it up. From what we have stated of the summary character of the County Court, it must not be concluded that the office of the judge of the Court is of small importance and that his duties are light. Although, from what we have stated, summary pro- cedure may, in the terms of the law, except with respect to the summons and judgment, bo oral, it is not probable, it is even unlikely, that this rapid method of proceeding will be adopted in the majority of cases. Proceedings may be oral, but will not, of necessity, be so. The party, to whom the law allows the option of proceeding without written pleadings, will probably take advantage of this permission only in cases of small value and of great simplicity, as it may, and is now, practiced in the Circuit Court, in cases which are decided ex aquo et bono. In other matters, the 148 JTJDICUL BEFOBMS. parties will always find it to their interest to plead in "Writing. Even if it were otherwise, this speedy form, in place of decreasing the difficulties of the office of judge, will in- crease them. It has always been noticed, that it is before the inferior tribunals, in which everything is done suddenly Where a case is caught as it were on the wing, that an advocate shows to advantage his resources and the prompt- ness of his judgment. The same may be said of the jud-e Every judge easily masters a case, written beforehand °ic IS only the judge endowed with a prompt judicial sense, however otherwise distinguished, who can, with ease master an oral case, and at once seize upon its rapid phases' It IS true that the cases of $100 to $200, will be taken from the County Court, but, on the other hand, we leave to It, without the right of evocation to the higher Court the decision of real and mixed actions, as those which affect tuture rights and in which revenues of the Crown are claimed. That which, however, completes the character of great responsibility imposed upon him, is that, outside his jurisdiction as a district magistrate, the County Jud-e re- places the judge of the Superior Court, in matters within the jurisdiction of the second division, Although ofinferior interest to those within the jurisdiction of the first division these are of sufficient importance to require from the County Judge a more than ordinary degree of capacity, and to make of this magistracy a career sufficient to satisfy the highest ambition. The Bench too. of the higher Court remains open to his legitimate hopes There will not be, as in the Province of Ontario, one judge for each county and division of a county. There :;Ltt/:!i? t^ ^°' -? ^^^^-^ ^t the c../...« of which he will reside, and whence he will prnc^ I) (' tlii f ^UDIOUL REORGANISATION. 149 u i^t !• i liold the court in the other counties, for a more or less considerable number of terms, according to the needs of each locality. The County Court cannot, especially in the counties outside that in which the judge resides, be held parmanently, but it should hold its sessions suffi- ciently often to cause the delays which now paralyze the usefulness of the Circuit Court, to disappear. In the same manner as the procedure before the Superior Courts — and it is especially before a court of this nature that the benefits of a similar innovation will be felt— the procedure should be made rigorously within the delays, and no case, except • under exceptional circumstances, where the impossibility of proceeding during the term would justify such a departure from the general rule, could be delayed from term to term- Every case should be decided during the term following its institution. There is one class of matters, the burden of which the Commission proposes to remove from the County Court and to take from their cognizance, and confine to the sphere of municipal jurisdiction. These are appeals upon the merits of purely municipal affairs. It is right that in a matter which raises questions of law which cannot prudently be left to the decision of local authorities, without exposing the parties interested to judgments through favor or to party passions, and which further require a knowledge of law. the contestation of municipal elections, questions of ju- risdiction and conflict between the municipal and judicial authority for example, the final decision should remain with a court of justice ; but in matters of a purely municipal nature and of exclusively local interest, this court is not possessed of the special knowledge requisite to give a competent decision. These appeals are, moreover, ft fruitful source of law-suits and contention. 150 JUDICIAL BEFORMS. They further attack the independence of the municipal authorities by submitting them unnecessarily to the judicial power. CHAPTER FOURTH. COURT OF APPEALS. • We have classed under three heads the principal defects in the administration of justice ; the tardiness of the suits the intricacy of the forms, and the excessive costs. The heTds ""^ ^^^^"^^ " ""*' ''''*''*'''' ^moach under all three On an average, cases before it last two or three years and even then are not always heard upon the merits. They are often cases brought before the higher court upon mterlocutory judgments which, after being a Ion- time pendmg in the court of original jurisdiction, come to make an equally long sojourn in appeal, to return before the former court, very frequently without a final decision upon the points that caused them to be taken to appeal, and even again to return there. The Commission has consequently proposed the abolition of these improper appeals. The Commission has no hesitation in declaring that the system of terms is the chief cause of the delays in suits in appeal, more faulty even in this court than in the court of original jurisdiction, and in proposing in its stead the substitution of the permanent holding of the Court, accom- panied by the compulsory proceeding in cases, as it is pro- posed for the court of original jurisdiction ; that is to say. by forcmg the parries, under the penalty of beinff non-suited to terminate their cases within the require^^ekys. JUDICIAI. REOROANIZATION. 151 .;! ini^ The Court will sit at Quebec, -where the business U lighter during a fixed number of terms, but whose J.ngth shall be indetcrmin and will continue until the rolls are exhausted, with a KulFicient prolongation to deliberate upon and decide the cases hoard. The experience of the courts shows that in the majority of cases this prolongation will be of short duration. The judgment in extraor- dinary cases requiring long consideration might be adjourn- ed either to the next term, which would be a slight inconvenience, seeing their small number, or if the parties prefer it, be rendered in Montreal. The remainder of the judicial year would bo devoted to holding the court at Montreal. This court would sit every day of the week, with the exception of one particular day, Monday or Saturday, or any other day appointed for the rendering of judgments, or the sittings might be sus- pended during a fixed or variable number of days, one half of the week, or one or two days, at the convenience of the Court. Routine has such a strong hold on opinions that there is no reform, however necessary and lawful which, no matter, how slightly it may affect errtrs of long standing, does not at once t'-ive rise to objections. Consequently it is not without hesitat'jn that the commission suggests this change which is the i>pplication of the principle already laid down of the permanent holding of the courts, and yet nothing can seem more appropriate than this suggestion. There is not a single person in any class of society, from the most hu.ible to the highest sphere, who can avoid the painful but inevi- table necessity of daily labor ; the judges no more than others. If citizens have recourse, every day, to the courts to decide their difficulties, why should they not be held every day to pronounce upon them ? the advocate pleads his cases every day and why should he not be able to find. 152 JUDICIAL REFORMS. ©very day, a judge to hear them ? In its relations with the other social elements, judicial action is of use only when it is not subject to any interruption, and it is only by sittmg permanently that the courts can attain the object for which they were instituted. It is only by rendering immediate, one might say daily, justice that they render proper justice. The secret of efficient justice therefore lies in its prompt- ness and it is upon the wise application of this principle, adapted to the special requirements of each count ;y, that the idea of the permanent holding of court? is founded. Still It is admitted that in some countries, the province of Quebec for instance, owing to the extent and number of the juris- dictions confided to the same judges, permanent sittings are not absolutely practicable ; that with regard to the amount of business in most districts, it is not even necessary ; there- lore we have suggested that the permanent sittings of the first division of the Superior Court be held only in Montreal and Quebec. As regards the Court of Appeals it seems hardly possible that any objection can be taken to its sitting permanently, for it appears to have become necessary and mdispensable for the expedition of the ever-increasin'>- volume of business which overwhelms this Court, which il held by five judges, leaving always one available for the Criminal Courts and for the cases which are decided in Chambers. Some people fear that, even by sitting permanently the Court of Appeals will be unable, before many years, to clear the roll of Montreal cases, if it can ever do so-so gTeat is their accumulation. In this event the only means of avoiding this pretended impossibility, a means which would at the same time show the use of a body of assistant I 53-- -,. -0-- -^/v----"3/ ocicutuu isoux me oar— of this we wia see many other examples-would be to associate ;f:ti!|i 1 II ■ ! t ' ^^^^^^B i 1 ; ^^H ' ij : ^^^1 ^H' i 1 : ' i >t Ma ' ^^^H ■ ■ '^ i . ; : ' 1 ^^^^Hl I 1 4 j ^^^^H j rr 1 J: |H| V ; : : i 4 ■ ' i • 1 ■Mil:. 1 .,^ njDICUti BfiOROANlZATtON. I5d them with the ordinary judges and make them sit in the extraordinary holdings of tlio Court, in two sections at once. There are six Appeal judges. Each section would be com- posed of three of them, with whom would be associated two of the assistant judges, endowed with special powers to that «flf«ct, and both the sections, so constituted, would sit separately null} +he rolls were exhausted. These assistant judgeii would naturally be taken from the jurisdiction of Quebec and if the i»inio want were felt in the latter, (which is not probable) the assistant judges would be ttiken from the jurisdiction of Montreal. It is not ne- cessary to give the reason of this distinction. The Court would then resume its regular course and would undoubtedly be sulUcient for the despatch of ordi- nary business without allowing it to accumulate. The quorum of the Court was fixed at four when the number of its judges was five. Now that there are six, the quorum should be raised to five. A Court composed of six judges with a quorum of four is an anomaly. On the other hand there is no reason why the six judges cannot sit together and why thb rule which excludes the sixth should be retained, if we do not give a compulsory form to the idea which dictated it and which was to hold the sixth judge in reserve for Criminal Courts and pro- ceedings in chambers. To complete the practical carrying out of this idea and not to expose the personnel of the Court to «;oo many changes and not to interfere with the cases under advisement, by causing judges to sit in criminal cases, who have heard in ap- peal the cases in which no judgment has yet been rendered, the five judges would sit together in the Court of Appeals during a year and, during the whole of that year, the same Judge would hold the Criminal Court. As, according to the amendment to be suggested, judgment in all the cases in 154 JUDICIAL REFORMS appeal ehould be rendered in everv v«ar K.r .u tion. another jud,e -ighi hold Z Jou t dth^f t^I n' iowmg year, and so on. each in turn. ^ '^' ^"^^ ►stiJl nothing would nror«iif ,t .. i l j«dse» hoWin: .he Co« ro 11 'i , "• ''"'' ""■ ""» "^ couruofi.ej::,reTi2,:trr;t°nii;ro7rf°''''° to a singular result of the power l^fZT f ^"'"^ of the Aoneal i,i,l,r„. r ' ° " ""P'" ""joiity from. tZt ':ny'i:LlZZ "' '"''■''"" '''"^"'"'' tried the case in the cXts h!, """f "' •'"'"S" «'«' together with t^^^'^^jz:::^^' r"""' prises collectively a maioriiv „r ^'''""'''' """- judgment before [he 1^0"^''""°"' '"'"'""' '" "«' judUlr'i;:^^:' "'"",'"""'" ^°"' "^ ""- fivc'judges. °Ther^:.; ftle ;:uert '""'■I' "'""^ the opinion 0/ the two others or k T" " "S"'"" given judg.nont, iiv„ have d: ded^i It ?"" "'"? '""" n the other and v»( (l,„ " , ""I '" ""o "enso and tluce favor loses his ie The'mfo "I ° ^^^'"•".i'xls- in his of the losing par^^will te Tr^ ^oT ts Sfoth" '^™ cumstances, according to the nnmi ,.'''''^''' other cir- rendered judgment in both eourtr b^t'u i '" "\^ '"'^ true that under our in.r., 1 ' , ^ '' """"^ *^e kvss iud.sinpr:irm;rL:r:;;^.r""- st^i^tnrtsrs.r.rd^'^trn- aeuceof thepeoplein the Courts. Despitr;:;^filtrd- • ' t M hi J" ! ' JUDICIAL RKOROANIZATION. I55 abstract theses on the hierarchical relations of the Courts to each other, on the pre-eminence of the higher tribunals over the inferior ones, the public will never be convinced that, of the eight judges who render judgment, three can be better than five and that the party who has the least num- ber of judges in his favor should gain his ca6e against him who has the greater number ! This danger would not arise to such an extent in acoun- try where the law would exact, from the appeal jud-es qualifications ofa higher order than those of thejud with us. Governed by the French law. our Courts should decide as did formerly the Courts in France and as they now decide, that is to say, by the unanimn„! judgment of the Court, in which tli'e minori^Xt^^ rallies to the majority, and keeps secret its differences of opinion." '^"t-cH oi "It i8 not that there is in reality a substantial difference or a question of pru.ciple between the two systems. In both, the judgments arc rendered by the majority, but one coneea Is the diff-erence in opinion, and the other not onl shows them, but makes a display of them " " '^■'T 't!" "'" ""' " I""-''"™ "f ovver .f reversing the judgment, except when such majority in appeal shall remain a minority of all the judges collectively, the votes of all the judges being counted. '* In other words the following rule would be in force • " The judgments of the Court of Appeals shall be rendered by the majority of the votes, except when the votes of such majority cause a reversal of the judgment against a collective majority of the judge.s who took part therein • m which case such judgment shall be conGrmcd." ■ The only case in whicli this exception would arise would be that in which the judgment, having been rendered unanimously by the three judges of the Lower Court, would have against it in appeal only three judges, while the two otners would be in its favor ; for, in this case, there would be hve judges in favor of the judgment and only three against it. ' In every other ca.e of a majority of the Court of Appeals being opposed to the judgment, it would be reversed because such reversal would be supported by a number of judges greater than or equal to that in favor of the iud- ment. ' <=» ii^tZh 'I'''"'' '"'^''^^ ''^"'' *" '^' "^«J°"*y o^ ^ Court the right of carrying out its decision, could not be applied 'i m l! 'I ■ Id ji i 5, t C r; i ii JUDICIAL REORaANIZATION. 1G3 to a Court of original jurimliction, except that under no given hypothesis, can the power to judge be givon to the minority of the judges Hut it is dilFereut with a Court of Appeals which, in reversing a judgment, exercises a revo- catory power, which may, to a certain extent, be compared to the authority of a legislative body, repealing f» law or any resolution, and to which we may validly say that instead of voting such repeal by a simple majority, it shall do so only on a vote of two-thirds of its members. Here the Legislature would refuse to a simple majority of the members of the Court of Appeals in a given case the right to reverse the judgment, and, as a result of such refusal, it would be confirmed. Our legislation has already sanctioned a departure from the rule which compels Courts to give their judgments by a majority of their judges ; it is in the case where an equal divJsion of the judges in appeal has theefiect of confirming the judgment. The law does not say that when the Court is equally divided the judgment shall be confirmed. A Court equally divided cannot pronounce a judgment ; in such a case, the law says that the judgment shall remain confirmed, that is, untouched. This means, in other words that, as the Court is unable to render judgment, owing to its being equally divided, the first judgment, already clothed with the seal of public authority, retains its inti'grity. In the case under consideration, the law which -.vould refuse to the majority of the Court, the right of rererKing the judgment, would not give the minority the power of confirming it, — it is contrary to the nature of things that the minority should decide — it would simply say that, us in such cases the Court cannot alter tho judgment, it would remain confirmed. It will thus be seen that the suggestion made by the commission does not derogate from accepted principles iu 184 JUDICIAL REFORMS. connection with the constitution of the Coui ts ; and eron if it did, the country would still find in the repeal of a custom which imperils the credit of its inhabitants, ample compensation for the sacrilice of a strict maxim of law ; if indeed, in a matter so arbitrary and one of social propriety, governed by circumstances of time and place, there can be any question of dogmatic and absolute principles. The Legislature might only adopt one or the other of these suggestions or both of them, for they can be combined. In eflect the manner of rendering judgments might be altered and, instead of being publicly stated as is now done, the divided opinions might be kept secret, or the present custom might be maintained and the ruling of the majority, as laid down, might prevail in either or in both cases. These two suggestions are therefore distinct, and this is the reason why the commissioi proposes that one be adopted, and communicates its doubts as to the other, to the House. "We have already mCiitioned the proposing of a rule compelling the Court to exhaust the rolls at the end of each judicial year and before the summer vacation. If, as the end of the judicial year approaches, the Court iiixds that it has too many cases under advisement to dispose of them all, by continuing to hold its sittings and by hearing new cases, it might easily interrupt the hearings and post- pone the unheard cases to the following year. This would be a lesser evil than keeping the older cases under advise- ment during the vacation. After having proposed the above mentioned changes in the organization of the Court of Appeals and in the exercise of its jurisdiction, we will now enumert.te the cases which come within its scope in civil matters. We have mentioned the suppression of appeals from the Circuit or County Court ; Superior Court cases therefore will be the onlv rtnpn nnKioni- tn annate} xff^ u „i~- rc- f JUDIOIAL REOROANIZATION. 165 il : ; \< ii commended tlint evory judgment of the eecond division, from which an appeal is taken, should bo tAken before the first divisioii. There will thus be no direct appeal from the second division to the Court of Appeals and the only judgments of the Superior Court on which t)ie Cou't of Appeals shall sit, will be those of the first division. The commission has also laid down the rule that no in- terlocutory judgment shall be taken directly into ap;ieal, and that the appeal from every such judgment shall be effected at the same time as that from the final judgment, except in two caf-es ; 1 ® . That in which, not boing definitive because it does not put an end to the case and remaining interlocutory in form, the judgment is nevertheless final in its effect on the main issue of the case, mch. as a judgment in separation from bed and board wmch orders the liquidation of the matrimonial rights, and a judgment maintaining a petitory action, which orders the li liquidation of the fruits ; 2 ® . That in which the interlocutory judgment alfecls an incident which is not strictly connected with the main issue, inasmuch as it does not essentially affect the decision, from which it may be separated, and in which an appeal may be had without such appeal interrupting the trial of the main issue. To this must always be added the fact that the appeal from this interlocutory judgment, taken at the same time as on the final one, could not entirely remedy the evil which its executiorA would cause to the party. Such would be a judgment on a motion to quash a capias, a conserva- tory seizure, which hypothese have already been alluded to. The commission has also recommended the suppression of the appeal in all personal, real and mixed actiono, in which the amount or pecuniary value of the things claimed would not exceed the sura of $500, and has limited the ultimate 16G JUDICIAL REFORMS. '■- V.,,,,.. 'TnZ;. Tt:! t '°"*-''™"°" ■" Ihcjud :„„,,„ l,„, I,,,,, „„j , , ,''"^7 """• "fw Courl of l;„vK.w bv a„ „!i ,1 , ? . .I«sentatives," but such delay shoU be reckoned only from the day of the acceptance of the succession or of the term allowed to make an inventory and deliberate, if such acceptance has not taken place before. ARTICLE 181. In the case of judgments rendered against minors, •wives under marital control, ^ersons affected with mental aberration, whether interdicted or not, and against persons absent from the province, without the previous joinder in the action of the husband, tutor or curator, to the interdicted or absent person, the delay to appeal is reckoned only from the day of the service of the judgment upon the husband, tutor or curator appointed before or after judgment, on the petition of the party who has obtained the judgment, or upon the petition of other persons interested. ARTICLE 182. The distinction between error and appenl in civil matterg ig abolished, and ths rscoarss against a judgment JUDIOIA.L BEOBOANIZATION. 169 of a court of original jurisdiction, rendered upon the verdict of a special jury, shall be exercised by an ordinary appeal, as from any other judgment. ARTICLE 183. The writ of appeal and the writ of error are abolished. ARTICLE 184. The appeal is exercised by a simple declaration, con- taining the statement of the facts now required in writs of error and appeal, of which the party appealing makes a simple declaration. Upon this declaration is set the seal of the Court of Appeals by the clerk of that court, who coun- tersigns it, upon payment to him of the required fee, and it is entered in the register of the Court in the manner now followed for the writ of error and the writ of appeal. ARTICLE 185. The day of the return of this declaration, the delay on which is twenty days counting from such entry, is men- tioned in such declaration and inserted in the register by the clerk. ARTICLE 186. This declaration may be produced, countersigned and entered in the register at any time during the delay to ap- peal as above limited, as are now the writs of error and appeal, and the appeal is followed up on this declaration as at present upon such writs. ARTICLE 187. It is served upon the adverse party and returned to the offict of tL« Oourt a quo, in which !• givtn th« ■•curitj in I 170 JUDICUL REFORMS. appeal, after nctice to the other party, of the nature of the security and of the names of the sureties which the appel- lant intends to furnish, given at the same time as the ser- vice of the declaration or by a separate notice. ARTICLE 188. The security is to the effect that the party appellant will efficiently prosecute the appeal, and that, otherwise, he wil' indemnify the adverse party for the damages arisin"- from his default and pay the amount of the condemnation pronounced against him by the judgment appealed from, and the costs of the appeal, if such judgment is confirmed, or in so far as such judgment shall be confirmed. ARTICLE 189. The appellant who, by a declaration to that effect, pro- duced in the office, states that he does not oppose the execu- tion of the judgment rendered against him, or who deposits in current money the amount of the judgment in capital and interest, or who in the terms of article 19C3 of the Civil Code deposits some sufficient pledge or hypothec, is how- ever only obliged to furnish security for the costs of ap- peal if he bo condemned thereto, or to deposit the probable amount thereof, established by the officer called upon to decide ipon the validity of the security. ARTICLE 190. If, in such case, the judgment is reversed, the party who ' has caused the judgment to be executed is bound to refund to the appellant the net amount only of the moneys received by him under the execution, with interest, or to restore the property of which he was put in possession, or the va- I '■ JUDICIAL BEORaANIZATIOiV. 171 i. lue of such property if it is no longer in existence or in his possession, tcgether with the rents, issues and proBts thereof. , „ „^ ARTICLE 191. The security shall be given by two sureties fulfilling the conditions required by article 1938 of the Civil Code, one of whom at least owns real property to the value of the amount of the security, free from all charges, debts and hypothecs. Such property shall be specially described in the bond, and the respondenit may register the bond hy- pothecarily against such property to the amount of such '''''''''^' ARTICLE 192. The security is recinvcd before a judge or the clerk of the Court d quo, who are axifftorized, either of their own motion or at the request of the adverse party, to cause tm sureties to justify of their suiricicncy under oath, an^ in this respect, under the said oath, to put to thom all the questions they deem necessary for such purpose. ARTICLE 193. In place of security, the party mny deposit in current money the amount of such security, or in the terms of article 1963 of the Civil Code, deposit a sufficient pledge or hypothec, as stated above in article 189. ARTICLE 191. The judge or the prothonotary. are equally authorized *to cause the party to be sworn as to the sufficiency of such pledge and of such hypothec, and, in this respect, to put to him all the questions they deem suitable, and to require any additional proof, the nature whereof is within their discretion. i ; i> 172 JUDICIAL BEFORMS. ARTICLE 195. The respondent may object to the receipt of such security, deposit, pledge or hypothec, contest iheir suffi- ciency. and, ,n the discretion of the judge or clerk, be ad- C prrof'" '' *''^ '^ '''''' '^^"^^''^ -^ ot^e' ARTICLE 196. Ai-tei the fulfilmer.t. to the satisfaction of the judge or irh 7 '7' '' "" '"""^'^^"^^ -d conditions%re' .cnb d by tne above articles, the appeal is allowed. The re- spond..nt has.always the right of requiring that these for- malities and conditions be fulfilled and that such allowance be given be ore a judge. It is only from the time of such allowance that the appeal is deemed to be taken, and that m tie case m which the appellant haa not consented to the execution of the judgment, it has the effect of suspending it. ARTICLE 197. The appeal having been so allowed, the clerk UDon payment to him of a sum of to meet' the costs ' tZ . m.t. the record to the Court of Appeals, together with a numbered schedule of the papers therein, with a duXte ^ the ..cunty of which he keeps the original. Id th ARTICLE 198. .^,Jui "ot. however, necemry that the whole record should be produced m the office of the Court of Anpeall the partie, may consent to the production of only t^e pari of such record agreed upon between them, and L resHf he -eco d remain, m the office of the court d ,„„, ..vi„g the r.ght of w. bong produced, in whole o, in p„t beforf the Coart of Appeals, il necessary. i't'l JUDICIAL REORGANIZATION. ARTICLE 199. Its Even without the consoiit of all the parties, and upon the application of only one of them, the judge, d quo, or the clerk may, in case the transmission of the whole record is unnecessary, select the part to be transmitted, saving, as in the preceding article, the right of having the rest or part thereof transmitted before the Court of Appeals, at a future time. ARTICLE 200. The clerk of the Court of Appeals receives the record and gives to the clerk, d quo, a certificate of such re- ceipt. ARTICLE 201. If the clerk does not produce the record within the delay for the return of the appeal, the appellant and the respondent, if the latter has appeared on the appeal, may separately or jointly, on a simple notice, with a delay of two days, if the judgment was rendered in the districts of Quebec or Montreal, and of fourdaysif in the circuit districts, apply to the second division of the court d quo, and compel him to produce it within a delay peremptorily lixed by the court, under all legal penalties, and even by coercive imprisonment, and cause him to be condemned to the costs of the incident, and all those occasioned by his delay. This demand may also be made to the Court of Appeals, or to a judge of that court, in chambers. • ARTICLE 202. It is lawful for the appellant and respondent to appear before the Court of Appeals at any time after the allowance ot the appeal. i ' u t 174 JUDICIAL REFORMS. ARTICLE 203. ARTICLE 204. If. within this samo delay, the respondent has nni btX'f'atfT"^"*' '''' '^^ ^Pi--d^arohta ; h ,llfJ'''''^'''^^'-S^-^^^^--^.-nd proceed alone on the ARTICLE 205. ARTICLE 20U. ARTICLE 207. with.^j" """f '' ""."f '' P'""^*y '^^' ^^^^-'iture. is to be given ' withzn fonr days of the appearance of the respondent^nd I :i , 1 t ^i1' i •I' i I ! t ; f ■ JUDICIAL RK0ROA.NIZATIOV. 176 the motion presented at the first sitting of the Court held after such notice, except in the case of a lawful impedi- ment, in which case such delay may bo enlarged by the Court on cause shown. ARTICLE 208. If the grounds of exception to the appeal have arisen after the appearance, or if they have come to the know- ledge of the respondent only after such appearance, he must ill voice them without delay. The appreciation of the duration of his negligence to allege such grounds is discre- tionary with the Court. ARTICLE 209. The insufficiency of the security must be invoked at the first sitting of the Court next aiter the expiration of the four days, counting from the appearance of the respondent. The insufiiciency of the security arisiug after the allow- ance of the appeal, is to bo invoked without delay, after the knowledge thereof has come to the respoudonti as in the case of article 208, and, in the same manner, the apprecia- tion of the negligence of the respondent is in the discretion of the Court. ARTICLE 210. The insufficiency of the security docs not occasion the dismissal of the appeal, unless upon the default of the ap- pellant to obey the order of the Court which ordered him to complete it, or furnish now security. ARTICLE 21L The new security or the supplement to the first, must fulfil the conditions required by articles 187, 188 and 189 176 lODICIAL REFORMS. ARTICLE 212. It is before a judge of the Court of Appeals that the new security is given, and the first completed. ARTICLE 213. Withiu the meaning of article 157 and followin son.s e bailiffs should be placed under the supervision and r(>sponsibility of the sheriffs, of whom they are. U) a c lin extent, the deputies ; \\ HRRE,.d, on the other hand, the advocatns who con- . Btantly require the services of bailiffs, cannot but suffer from thoir inability to perform their duties, and the dignity of their order is interested in the reform of this calling ; Whereas the jud' , upon u'hora should res^ 'the appointment of bailill,,. aavo not sufficient information, as to the personal qualifies and capacity of aspirants, to make a good selection, they are without ih uforraation necessary to allot the number in proportion to the wants of the various jurisdictions, and, in this respect, the sheriffs and advocates are their natural advisers and auxiliaries, and should bo their substitutes in the reorganization of such calliun-, so • as to raise it to the level of the duties imposed upon iTby the new laws, to reduce the number of its members to that » required, and provide for the selection of suitable persons ; Whereas, finally, it has become necessary to reorganize' the office of bailiff, by compelling, at the same tirn^e, the present bailitfs who have not given security, or whose security is no longerinforce, to furnish other sureties, and m order to carry out this reorganization which would have for Its object to submit the admission of new bailiffs to conditiona of eligibility of a higher moral and literary character, to provide for the removal and suspension of bailiffs in cases of necessity, the creation of a Council, clothed with the powers to bo set forth in the present Act. seems to the Legislature to be the most suitable and efficient mean« of attaining these ends ; IMAGE EVAIUATION TEST TARGET (MT-3) // #^ L !.0 I.I ISO ™^* 2.2 l& 110 L25 III 1.4 - 6" 1.6 Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 a^ %^-^^ <» I if Ml M r ■ I JUDICIAL RE0ROA.N1ZATI0N. 181 Therefore, Her Majesty, by and with the advice and consent of the Legislature of Quebec, enacts as follows: S. In the interval between the sanctioning of the present act and the day fixed by proclamation of the Lieutenant- Governor for its coming into force, the sheriff of each district shall determine, in concert with the Advocate- G-eneral, the batonniors of the order of advocates in the districts in which a batonnier-general or a batonnier of a section of the bar resides and with the judge of the Superior Court or County Judge in the other districts, the number of bailiffs necessary for the Superior Court of the district, rcgjird being had to the requirements of the public service, taking care to avoid raising the number dispropor- tionately to such requirements, and, by undue competition, prejudicing the honest gains of the members of this calling, and attracting thereto unworthy aspirants, who are detri- mental to the rospoctability of the body and the honor of the courts. 2. It %hall be tlie duty of every batonnier to consult the council of hia section, before acting in concert with the sheriff in tliis matter. S. The number having been so established, the sheriff shall communicate the result of the operation to the clerk of the Superior Court, who shall make an entry thereof in the register, and, with the exception of the former bailiffs who, upon fulfilling the requirements hereinafter set forth, shall have, at the time of the coming into force of this act, the right to continue the exercise of their calling, thenum- • ber of bailiffs shall at no time exceed the number so estab- lished or thereafter altered. 4. On a further consultation between the sherifF, Advocate-General, Judge or batonnier, the latter, after 181 [vice and llowh : e present eutenant- of each Ldvocate- is in the nier of a e of the ricts, the ,rt of the le public ispropor- ipetition, 8 calling, ire detri- lonor of isult the ^ith the 9 sheriff lie clerk lereof in r bailiffs set forth, this act, hennm* • o estab- bhdriff, r, after 182 JUDICIAL REFORMS. having again consulted with the council of the section, the number so establish.^d may be, from time to time, afterwards changed, diminished or increased, in any or all of such districts of the Superior Court. S. In the aforesaid interval between the sanctionin."- and the coming into force of this act, every bailiff of the s'uper- lor Court, who wishes to continue the exercise of his caliino. after that time, shall give notice thereof to the sheriff, and. If he has not already furnished the security required by the former laws, or if such security is no longer in force, shall furnish the security required by section 33 of this act, and on producing, at the office of the court, a certificate of the sheriff to that effect, he shall bo admitted to continue the exercise of his calling as theretofore. 6. Nothing in the foregoing provisions, shall compel any baihffwho has not furnished security or whose security has lapsed, to furnish new security to continue the exercise of his calling, in the interval between such two penods, but if he has not furnished such security on the day preceding the coming into force of this act, his powers 8ha be revoked, and to exercise the office of bailiff, he shall, on submitting to the required conditions, be newlv admitted to or entered upon the roll of bailiffs, as if he had never befor- been such bailiff. 7. The bailiff whose ecurity shall be in force at the time of the s^lnctioning of this act. shall continue to exercise his caUing. without other security, and without the obser- vance of any new formality. 8. During the course of a month after such sanction, the eheriffofevery district shall obtain from the clerk of the Superior Court, if he has not one already, a list of all the bailiffs having a right to practice in the district; after the 1 i JUDICIAL KEOROANIZATIOK. I8S name of each of these bailifFs shall be entered the date of the security, or the default of security, and upon receipt of such list, it shall be the duty of such sheriff to verify whether such security is in force. 9. During the same period of one month, after having verified the correctness of such list, corrected it if necessary, and made the inquiry required by the latter part of the preceding section, the sheriff shall post up in his oiHco the list so corrected, if necessary, of all the practising bailiffs of the district, distinguishing those who have given, from those who have not given, security, and mentioning the cases in which the security is not in force. 10. He shall notify the bailiffs entered upon such list who have uot given security, or whose security has lapsed, of the fact which concerns them, without, however, the want of sending or receiving such notification relieving the bailiff from the consequences of his default. 11. Any bailiff, feeling hiraselfaggrieved by such imperfect list, may cause it to be corrected by the sheriir. 12. II shall be lawful for any bailiff in default, to furnish, before the sheriff, from the time of the sanctioning until the coming into force of this Act, the security prescribed in section 33, and such security shall relieve him from such default. 13. Every new security so furnished sha^l be mentioned on the list, after the name of the bailiff so relieved from his default. On the day of the coming into force of this Act, the sheriff of every district shall produce in the office of the clerk of the Superior Court, the list of bailiffs that he has received from the clerk, corrected and amplified if neces- sary. 183 .e date of •eceipt of to verify r having lecessarv, rL of the oilico the bailiffs of en, from ning the such list IS lapsed, ever, the relieving imperfect furnish, ing until >rescribed him from aentioned 1 from his I Act, the ice of the lat he has I if neces* 181 JUDICIAL REFORMS. 11. Every clork of such Court shall choose, from the bail- iSa entered on such list, those who appear to have given, as ;well before as alter the coming into force of this act, the security required in virtue of the foregoing provisions, and shall form the roll or register of baililFs of the Court, upon which he shall add the bailiffs who shall be afterwards appointed, and from which shall be struck the bailiffs retiring from office, by decease, resignation, dismissal or otherwise. 15. Only the bailiffs so entered upon the roll of each Court shall have the right of practising before the Court, the powers of the others being revoked y^/e/wywre, and they shall have no more right to practise without a new admission than those who have never been admitted to the office. IG. Whatever may be the number of the first bailiffs, they shall remain in office, oven if they are in excess of the number determined by sections 1, 3, and 4 ; but so long as such number is not reduced, by the retiring from office* of such bailiffs, below the number so determined by those sections, no new appointments shall be made. If such first bailiffs do not reach the fixed number, no new nominations shall be made which shall have the effect of causing this number to be exceeded by the total number of old and new bailiffs, and at no time shall there be upon the roll a number of bailiffs, in excess of the original figure or that afterwards changed, authorized to practise at the same time before tte same Court. 17. To be admitted to the office of bailiff, the following qualifications are requisite : 1. To be a British subject ; • 2. To be of full age.; 8. To be of honest habits, undoubted sobriety, and in the enjoyment of a character without reproach ; H 1 1 JUDICIAL REORGANIZATION. 185 4. To be sufficiently educated so as to write correctly the English or Frencu language, to be under no legal disqimli- ficaUon, and not subject to any of the following causes for exclusion (these causes shall be given later) ; 5. To have, on admission, a sufficient knowledge of the duties of his oflice, to give to the public a guarantee of tho faithful performance thereof. 18. Whoever aspires to the office of bailiir, shall post up and keep posted during one month, on the outside of the door of and in tho office of the sheriff, and in that of the prothonotary of the district for which he wishes to be ad- mitted, a notice of his intention of presenting himself be- fore the sheriff, to slww his fitness for such office, on the day therein fixed ; which day shall not be less nor more than five weeks from the day of such posting up. 10. n there is only one French newspaper or one Eng- lish newspaper in the locality, or if there are one or more French newspapers, or one or more English newspapers, or one or more newspapers published in both languages at the chef-lien, or in default of publication at the chef-lieu, in any other place in the district, four insertions of such no- tice in French or in English, or in French and in "English in such newspaper, or in two of such newspapers, must be published, ' the language of their publication respectively, once-a-week during the course of the four weeks included, from the day of the posting up to tho day on which the candidate presents himself before the sheriff. • 20. Upon the day fixed in such notice, the candidate presents himself before the sheriff, who ascertains whether his admission will not increase the number of bailiffs beyond that required, and in such case no further action is taken on his demand. i\\ the contrary case, upon payment of a fee of % , the candidate shall produce a certiiicat© 186 JUDICIAL REFORMS. m the fom of schcdulo 1 of this act. signed hy twenty-five mumcipal electors of the local municipality in which he resides, as to his morals, his reputation and sobriety, and prove the accomplishment of the formalities prescribed by the above sections 18 and 19. 21. Upon payment of such fee, production of the certi- fidato and proof of the accomplishment of these formalities he IS admitted to examination. 2a. Any person is, however, at liberty to object, either verbally or in writing, owing to his want of the necessary qualifications, his unworthiness, incapacity or exclusion set forth by section 17 above, to the admission of the candi- date, and proof is at once taken upon the opposition and the examination proceeded with, if the opposition is rejected or upon such later day, as may bo decided by the sheriff*. ' 9.T In the districts in which the batonnier-general or a batonnier of a section resides, the proof upon such opposition and the examination of the candidate, if the opposition is rejected or if there is no opposition to the demand, takes place before the sheriff" and one of these batonniers, and in he district in which the Advocate-General resides, before these three officers, or two of hem, 34. In districts where there is no batonnier, the proceed- ings are held before tho sheriff" and the judge of the Superior Court, or the County judge. 25. The proof upon the opposition is adduced orally in the presence of the parties; the candidate may take part therein, and produce witnesses to rebut the evidence of the opposant and establish his fitness. 20. It is not as a court, but as a council, that these officers entrusted with deciding upon the opposition and li, 1 1 : ! JUDICIAL BEOIiaANlZATION. 187 the examination of the candidate, act and hold their sit- tings. They are, however, clothed with the powers of coercion recognized by law, for causing the authority of the courts to be respected. 27. The council shall dispose at once of such opposition or defer the decision to the next day, or the council may proceed with the examination of the candidate, reserving the decision upon the opposition. 28. In maintaining the opposition, such decision may declare that the candidate shall be forever excluded from the faculty of presenting himself for admission to the office of bailiff, or only during a limited time, and if such decision does not contain such a provision, it shall not prevent the candidate from subsequently exercising such faculty, 29. Such decision shall be respected in all the other districts of the Superior Court, and the candidate against w^hom a permanent or temporary exclusion shall have been pronounced, shall, for the future, not have the right at any time, or before the time fixed, to present himself for examin- ation. 30. The nature of the tests required in the examination shall bo discretionary with the council, but no candidate shall be admitted to exercise the calling of bailiff unless he 'shall have proved, to the complete satisfaction of the council, that ho possesses the mora] and literary qualifica- tions required by section 17, and that he has a sufficient knowledge of the duties of his office, and the ability required to discharge the duties thereof, immediately after his ad- mission. 3!. The admission of the candidate shall be attested by a certificate in the form oi schedule 2, granted to him by the members of the conncil, whose decision shall be valid only r.i 188 JUDICIAL REt'ORMS. whon thoy aro unanimous. Any dissent in the council, either on the opposition or on the admission of the candidate, shall have the elFect of staying the demand, saving the caudidato's right to renew it afterwards. 3'2. After the granting of such certificate to the candidate, he shall furnish security by two solvent sureties in the collective sum of $2000, that is to say, security by each of these two persons to the sum of $1000, for ihe beni^fit of all those towards whom he might incur any responsibility in the exercise of his office and of the public treasury, for th • payment of the fines to which he might become hable. The sureties sholl justify their sufficiency to the required sum under oath or otherwise, as shall be prescribed by the shorifT, before whom the security shall be given, tt:i. Such security is given in the form of schodulo 3, nominally in favor of the sherifT, but in reality for the benefit of the public, and particularly for the benefit of all peruona towards whom the bailiff may be condemned, by reason of the damages committed in the exercise of his office, and for the benefit of the public treasury for the recovery of the fines which he may incur. Such security may as required, be invoked by the creditor for such damages] and by the Crown, as if it had been given nomi a,lly in favor of such creditor or the Crown. » I. Such security, transmitted by the sherifF to the clerk, shall remain in the archives of the court, but the sheriflT shall retain a dnplicate among his archives. S**. Furnished with the certificate of the council and that showing the acceptance of his security, the candidate presents himself in the office of the court, and his name is added by the clerk to the roll of bailiffs of the district. Such m&cription constitutes iu his favor a formal admissiou I' . 1:1 .i.i i Mil JUDICIAL RKOaOANIZiTlON. 189 to the ofTico of bivilifT, of which, for all purposes, he shall possoMs th«^ titles, powors, profits, privilogos and preroffatives, ns ho shnil become suhject to the responsibility and duties of such ollico. aO. Tiio fee paid to the sheriff for the security shall be, § and to the clerk for the inscription upon the roll, $ :i7. It bhall bo the duty of every bailiff, under penalty of dismissal, to inform the sheriff, so soon m the fact shall have come to his knowledge, of the death, departure from the province, or insolvency of either of his sureties, and in every such case, to renew his security before such officer, that is tc say, to give another bond similar to the first, or to complete such security, given before or after the passing of this net. ::s. Any bailiff, who shall, after such event, perform any duty of his office or any other having the effect of causing his security to lapse, in whole or in part, without com- plotinix it or having give.i a new bond, shall i/isn facto, incur dismissal, and shall further become, for every such act, liable to a fine of $ recoverable by the sheriff in his olllcial capacity, by an action of debt for that amount. KD. It shall be the duty of the sheriff of every district, to see to the execution of the two above sections, under the penalty of misfeasance of office. .10. In the first week of every year, the sheriff shall inspect the registers of civil status of each locality in his district, kept for the pre'seding year, and deposited in the office of the Superior Court, and ascerrain whether, among the acts of burial noted in such registtir, there is that of any surety of a bailiff within the jurisdictioa. 190 JUDICIAL REFORMS. 'II. Every public omccr. to whatovor sorvico ho may bolonjr, whether mayor, inmiicipal councillor, clerk of the Superior Court or County Court, hailifF, and every officer of any rank and quality, who «hull know of the insumcioncy or the lapsing of the security of a baililf. from whatever cause arising, shall inform the sheriff and Advocatc-General thereof Vi The Advocate-General shall, on his side, see to the carryin- out of the five preceding sections. 'fl:i. Every buili/f shall be obliged to indemnify the party employing him, for the costs and damages occasioned by the improperperformance of his dutv, and the judgment which shall declare the nullity of such proceedings, may carry against the bailiff a condemnation in damages, for tha beneht ol the party aggrieved by such proceeding. 'I 8. No bailiff shall, without lawful cause, refuse the assistance oi his services to any party requiring them, and every such refusal renders him liable to the penalty set forth in section 30 above, recoverable as set forth in the said section. 4S Every bailiff shall be subject to removal from office lor the following acts : 1. Conviction for felony, misdemeanor and any act implying infamy ; 2. Notorious misconduct ; 3. Drunkenness; 4. The commission of any act, which, if it had been committed before his admission, would have excluuedhim • 5. Extortion committed in the exercise of the duties of his oflico ; and finally, 6. Any act of immorality, abuse of power, and every misfeasance of office, which the Council shall deem of a nature^to justify such penalty. n i( ! ' ii ! ' i 1' ^ s JUDICIAL REOROANIZATIOX. 191 40. Simple Kuspciision for a tim«, Iho duration of which is in the diKcrction of the Council, may bo pronounced in placvj of dismissal. 47. The parties oompetent to cause the dismissal or suspension of a baililf arc : 1. The Advocate-General in all the districts; 2. Anv shorilfin his district; 3. The batonnier-goneral throughout the Province, or the batonnier of each section within the limits of such section. 48. Kvery person, to whose knowledg-e shall come an act of the nature of those set forth in section 45, and which is sullicient to causj the di^ insal of a bailill', shall give immediate notice thereof to any of the officers mentioned in the preceding section. 49. The procedure respecting the dismissial of a bailiff is the following : The Advocate General, shorilf or batonnier prepares a statement of the Aicts charged against the bailiff, and has it served upon him with a notice to appear within eight days of the service, at the office of the sheriff, to answer such complaint. The baiUn' appears in the office of the sheriff, in the districts in which the Advocate-General and a batonnier reside, before such Advocate-General, batonnier and sheriff, or two of them; in the districts in which the Advocate-General does not reside, but in which a batonnier resides, before such batonnier and sheriff; and- in the other districts before the jut\'e of the Superior Court or the judge of the County Co\ut and the sheriff, and after producing^his defence, either verbally or in writing, proof is adduced before two or three of these officers, as the case may be, who shall sit in council, as stated in section 26 above. 102 JUDICIAL REFORMS. SO. If tho bailifT does not ftppear, the council may proceed by default against him, and he shall be dealt wiih aa sot forth in tho following section. Si. After the proof is taken by default, in the case of the non-appearance of tlio bailiU, or in the presence of the parties, in tho case of the appearance and pleading of the bailiff, in which case it shail be lawful for him to bring forward witnesses and enter into a full defence, the Coun- cil shall dismiss or suspend from or maintain the accused bailiff in the exercise of his office. SiS. If tho bailiff is maintained in his office, uo record of the accusation or of the tiecision of tho Council, which shall remain in tho archives of tho sheriff with the record, shall be made in the office of the Court, and if he is dismissed or suspended, a record of the decision, and of iU date shall bo entered on the roll after his name. Sii. From the time of the entry of the record on the roll, tho bailiff thall bo dismis.sod or suspended from his office and, in addition to tho penalty of the nullity of all services or official acts of tlio bailiff, performed during such suspen- sion or after such dismissal, he shall incur, for every such act, a fine of § , recoverable by the sheriff, as provided in section 38. For the recovery of such fine from such bailiff, an ordinary execution shall be taken against his property, and, in default of property, coercive imprisonment may be employed. 54. The amount of such fine, if recovered, shall be, by the sheriff, paid into the provincial treasury, to become part of the general revenue fund of the province. 55. Upon the dismissal, resignation, death or witndrawal from office of any bailiff, for any cause whatever, tli« number of the bailiffs upon the roll shall be reduced by lo F'*! l-n i i' ;l : ■ i I ^ fl JUDICIAL REOROANIZATION. 108 much, and the blanks so left in the ranks of the bailiffs shall be filled up according to the provisions of this Act. .16, The suspension of u bailiu shall not produce the effects set forth in the preceding section, and after the expiration of the time of sucli suspension, he shall re-enter upon the performance of the duties of his office. tl7. The bailiff who, during such suspension, shall per- form any act of his office, in addition to the nullity of such act and the penalty incurred in virtue of section 63, shall become liable to dismissal. 58. An Act based upon the same prin9iple8 may apply mutatis mutandis to the bailiffs of the Court of Appeals. CHAPTER SIXTH. Of the competence of the Judges of the Superior Cour'; in controvci'ted elections. "Ihe jurisdiction given to the ordinary judges over the revision of electoral lists, the contestation of elections of members of the Provincial Legislature, impose duties upon the Couris that arc foreign to them, and at the same time compromise their independence." The foregoing is the opinion expressed by the Commission in its report with respect to election contestations. To follow the order and keep the promise made in this report, this would bo the place to mention the proposed reform, upon these two subjects. But as these subjects only indirectly relate to the judicial reforms, with which they have no connection, except from their being placed 18 !■'[ 104 JUDICIAL REFORMS. under the jurisdiction of tho ordinary tribunals, and that they naturally bclon. to the domain of j^lities ^o -.U law""! 1 't'?. °"'^ '""''" '^' «"» °f Constitutional Law. when the (Jommission shall have reached that portion of the general work of the codifieatioa In the meantime, one proposition alone requires to be demonstrated: the danger to the proper administration of justice in causing election contestations to be decided by the ordinary tribunals. ' Yielding to the persistent recriminations of public opinion against the jurisdiction of the House over el ction cones tations, the Legislature referred their cognisance to hJ or^iiary tribunals.* that is to say, to the sTiperior C "ur '' Has this now practice, which introduced an innovat on conrarytothetheoryofthelaw.inthejudicialpowerf^he ::i:^.r '; ""^' *" ""' ™ ^"-^ '» '"« liirerenceTbri t private parties, and to apply private law and not to decH^ upon political questions, generally and r a ^^ ormersTlte'mf "This"""" ^""1"°'"^ '-""" '■>-'■> lurmer system? This is a question which iH«nf «,;4i,- our province, and to which, i?we were obHged "1"' t answer, we would reply doubtfully. " ^ That which, however, is not doubtful, is the tendency of this irregular jurisdiction to throw suspicion upon iudf cia independence, and to shake the cLlide.rce of th; public m the integrity of judgments. *^^ We will not ask, if. in a country in which politics exer cise an absolute sway, in which it even expends to thl «.? ofordinarylife.absorbsnearlythewho~^^^^ arena~we do not ask, we say, if in cases which so 1:. I' : I M . i' m I if ^1 "1 ■ ii I 1 < fi JUDICIAL HEOROANIZATION. closely touch party interests, it is quite possible to with* draw from those influences, the judges called upon to decide them. Our respect for the Canadian Bench, a Bench which in upright and without reproach, forbids fruch a questioji. But this question, which we do not wish to ask, the public itself, prejudiced by political errors, does, or if ii does it is not, because it has already answered the question in the negative. It will be said that the judge is no more free from the suspicion of the parties in ordinary than in political cases ; this may be true, but, in ordinary cases, the parties ran I y have any pretext to attribute interested motives to him; in such cases, his reputation for impartiality has to strive only against the malice of the losing party and his friends, whilst in political cases, it has to struggle with the passions of the masses, of whom one-half depreciate his judgment, while the other half do not appreciate it at its value. This malice, we will again bo told, born of party spite, will not survive the political passions that gave rise to it, a new interest, arising out of a thousand political caprices, which to-day rejoices in the results which it deplored yesterday, will cause it to be forgotten ; it will gradually be effaced from public notice, and will end by disappearing. It will bo eflaced, but as is elTaced a stain upon spongy fabrics, which, in spreading, enters into the whole tissue. It will disappear from the memory of party ringleaders, who, to servo a momentary interest, and, at the same time, not believing it, have provoked its manifestation ; but, in the public feeling which has been misled, and which although in error, is in good faith, this sentiment remains, or if it i'tiSBto ittrajr, 111 i^ ill uQ \jis.t,y uilci lb iiu3 iuvYctuu kiiu ^uuris in the public estimation, and it will leave an uneasy distrust in the administration of justice. Unfortunately, this dis- I I 196 TODIOIAt BEFOBMS. 195 trust will not be conBncd solely to election cases; it will extend to other cases and to all the actions of the ind^e aufhrrit' "'"^ '''''""''""'"° '■'' P™'"S« ""d destroying his Weakening of the prestige of the judges, destruction of their authority ; such are the consequences of tho over- throw of the balance of power brought about by u forced delegation of a political function to the judicial power for poUto ™"'*'"'"'"' of «l«eMonsis within the domai'nof These consequences are admitted, bnt the blame is thrown upon political necessity, by reason of the complaints brouTh" againstpariiMnen arydecisio„s,which rendered the recou'rse to judicial authority necessary. Politics, whose license even, we are told, has assured our liberties, have, we admit, cruel liecessiti s To" their hberties to all the elements of social life, they were compelled to invade all, and in order to bend to their pur poses .11 the powers of the stale, they make use of eve,^ means. It was perhaps inevitable, bnt in passing mZ st 1 wt' T^' '^'^ ""' ^*™ ''"•S°«^» '» »'" them ? Should they h»ve troubled the majesty of these precincte tarnished with tho breath of suspicion the purSyTth^ ermme, and caused the hand which holds the scats of . ™'' '" J» -^oorts IS sacred to a people, and every msftution which tends to lessen this noble sentiment e™n were it animated with the praiseworthy desire of pre" rrin" w1„d°- f"™'."'" ■■"' ""^'"y''" pia« »f S: It. Todes ■■"' '''' ^''''"' '''"^ " "'»»'d ^ '""'k from Tho system is sought to be justified because it has been borrowed from tho English law. A similarity in tho po ,° fcJ moral, of tho two countries seoms to hL beel'he iiii ill il I .i ii i ' i 1 JUDICIAL IIE0ROANIZA.TI0N. 197 reason for this borrowing. But it must not bo forgotten that, in this matter, there is behind the political and judi- cial question, a social question. The constitution of English society, impregnated as it is with its traditional respect for- justice and the veneration of the people for its judges, has been able to resist, and, as far as we know, may for a long time resist the shocks of the struggle, engaged in before the Courts, between political and judicial inlerests. But the condition of our society is otherwise. Public confidence in judicial institutions is not so protected by old traditions against attacks which might shake it. These strong barriers raised around the tribunals can not so puissantly defend them against the assaults of prejudice and evil passions. In short, our judicial institutions have not the solidity required to support the working of the law,* which the commission proposes to repeal. We have just stated that the good working of this law in England is not a guarantee of its suitability for this province, but is it now certain that the law suits England ? It has scarcely been subjected to thirteen years' application * and the fu- ture will show if the next fifty years will not reveal the necessity of its repeal, as the six or seven years past have revealed it for us. Once again from a principle, bad in it- self, it is difficult to deduce useful consequences. The best of cr.res is the prevention of disease, and the system to replace the present one, should be based upon the reform of the election law. This reform, by punishing with more severe penalties, by corporal punishment even, not only the corrupt member elect, but the corrupt elector, by simplifying the forms of election, by introducing the salutary maxim that we have introduced into civil matters, that there is no wrong without its remedy, even without * Xb« law was passed in Englnud in i8v3. 197 m JUDICIAL REFORMS. Its being pronounced by the law, an'3 by moans of other modifications of the same nature, will render more rare the attempt made against the purity of elections, and the cases of iiullity based upon subtilities and cavillings, and consequently the contestations of elections, less numerous. When this result shall have been attained, if the House admits the principle of the withdrawal of the jurisdiction given to the ordinary tribunals, it will be possible to create a special jurisdiction to decide such questions. This is what we shall see, as we have said, in the title upon Constitutional law. Until then, any modification of the present system would bo premature. CONCLUSION. We have passed in review in the preceding chapters, the reforms which form the basis of the proposed reorganization of our judicial system. The Commission should here end Its report, as so long as the organic principles are not set- tied, it would be premature to pass to the second part, which consists in the remodelling of the Code of Procedure. However as there exists, as wo have already stated, an intimate connection between the reorganization of the Judicature Acts and the Code, the Commission has pre- pared by anticipation and in- prevision of the adoption of the whole or part of its scheme of reorganization, a sketch of the consolidation of the Code, based on this scheme, to explain and complete it. A part of this consolidation is published with this report, the rest will be published with the subsequent report* I JUDICIAL BEOROANIZATION. 199 which the Commission will have the honor of successively kying before the House, vrith cho hope of bemg able to terminate the whole during the P'^^^^^ VTo^f reor^aniza- The next report wUl also contain a ^^^^"^^ f '^'^'^. tion for the districts of Gasp6. Saguenay and Clu^^"^ ; which, owing to their geographical po«Uon. it ^^^^^^ lie t;> divide into circuits as iJ.e o^^'.'^;^.^ ^^^^ Being unacquainted with the localities, the Commission was unable to prepare this scheme sooner. »i i! ' I ' i !;'^|i! ! Ill SECOND PART. ooisrsoLiiD-fiL'noiT nr Tui CODE OF CIVIL PROCEDURE. GENERAL PROVISIONS. ARTICLE 224.'* Tho Province of Quebec is divided for judicial purposes into twenty districts, including fifty-nine counties and two cities, of which the table annexed to this draft gives the names and chefs-lieux. ARTICLE 225. For the purposes of sections 1, 2 and follow- ing, of the Act creating the office of Advocate-General, and for those set forth in this Code, the various districts form two jurisdictions, the first, called the jurisdiction of Quebec, composed of the districts of Quebec, Three Rivers, Rimouski, Montmagny, Beauce, Arthabaska, Gaspe, Sagae- * We should commence with a new number for the Articlei of thii draft Code, but, io aroid confusion in tb« refercncei, we think it bettar to eontinaa tbe wriet of numbers commenced in the fint part of tbii work. 202 JUDICIAL REFORMS. nay and Chicoutimi, and tho second, called the jurisdiction of Montreal, formed of tho districts of Montreal, Iborville, Terrebonne, Joliette, Richelieu, St. Francis, St. Ilyacinthe! Bedford, Ottawa and Beauhaniois. ARTICLE 22G. For tho purposes set forth in the laws of organiza- tion and in this Code, these districts, excepting those of Quebec, Montreal, Gaspe, Charlevoix and Saguenay, which will continue to exist ao distinct districts, are also divided into five circuits (arrondissemenls) composed of three dis- tricts each. ARTICLE 227. Saving the common law appeal to the Privy Council, whoso statutory jurisdiction is abolished, and the appeal to tho Supremo Court, established by federal legis- lation, civil justice in the Province is exercised in two degrees only ; the degree of original jurisdiction (and of sole jurisdiction in the case of Courts of both first and last lesort) and the degree of appeal. ARTICLE 228. The ordinary civil tribunals are the County Court, the Superior Court and the Court of Queen's Bench, which ■will be henceforward known under the name of tho Court of Appeals, whose powers extend over tho whole Province. ARTICLE 229. Distinguished from these superior tribunals, ordi- nary tribunals whose jurisdiction extends, as above stated, over the whole Province, the Commissioners' Court for the summary trial of small cases, more laconically called the • :i. JUDICIAL HEOHOANIZATION. 203 " Commissioners' Court," is an extraordinary or exceptional Court, whoso jurisdiction is local and limited to mattern of small importance. ARTICLE 230. The powers of these various Courts will be found in this Code, in the laws erecting and organising them, in the public and private common law, and in the statutory legislation of the Province. ARTICLE 231. The whole of these powers, in correlation with their duties, constitutes their jurisdiction, and the whole of tho rules according to which their jurisdiction is exercised, forms the procedure. ARTICLE 232. The jurisdiction is contentious or non-contentious, the competence is general or special, and tho procedure is ordinary or extraordinary. ARTICLE 233. Contentious jurisdiction is that in which the appoarance of the party summoned is compulsory, which requires a judicial examination of the rights and obligations of the parties and which gives rise to a judgment in favor of one of the parties against tho other. ARTICLE 234. Xon-contentious or voluntary jurisdiction is that to which the x>artics submit voluntarily, which does iiot give rise to any litigious dispute or examination, does not nrovoke anv condemnation imd does not preliminary summons. Tflnnirn — -i — f 204 JUDICIAL REFORMS. ARTICLE 236. Ordinary or plenary procedure io that which re- quires, to their full extent, the carryings out of the forms and observance of the delays exacted by the law, and extraordinary or summary procedure io that in which the progress ot the case is more prompt and rapid, and in which the forms are simplified and the delays shortened. A certain number of summary cases require a still more rapid procedure ; this is called the procedure of urgency. AB'TiCLE 236. « The judicial year is composed of ten months and ten days, and lasts from the first of September to the tenth day of July in each year, both these days being included. ARTICLE 237. The period between these two days constitutes the long vacation. ARTICLE 288. As distinguished from this long vacation, the vacation of a court consists in the intervals between the fixed terms of such court. ARTICLE 239. With the exception of non-juridical days, upon which the courts cannot sit, and the long vacation during ' -hich they can sit only in summary matters, the courts sit permanently and upon every day of the juridical year. ■f ' ■ i I 11 ' JUDICIAL REOROANIZATIOW. ARTICLE 240. 305 • Every court is clothed with the powers, whether expressed or not, necessary for the exercise of its jurisdic- tion and to protect it from attempts against the peaceable holdmg of the courts, and the respect due to judicial authority, to carry out its jurisdiction and insure to the • parties the benefit thereof. ARTICLE 241. Persons present at siitings of the courts must remain uncovered and in silence, and no one shall disturb good order. , ARTICLE 242. Every order of the court or of the crier, or of any other judicial official, acting under the authority of the court, for the maintenance of good order during the sitting, must be instantly obeyed. ARTICLE 243. Every infringement of the preceding articles is considered as a contempt of court, and is punishable by admonition, reprimand, imprisonment or fine, or by both, pronounced at once by the court against the offender, in it? discretion, and according to the gravity and repetition ot the offence. If the transgressor is an officer of the court, he is, besides the uL I" aalties, liable to suspension. ARTICLE 244. Thesuppression of libellous or calumnious writings respecting the courts, public authority, any person 206 206 JUDICIAL IlEFORMS. exercising a public oflice before the Court, or any public or private person or party, produced in any record, may be officially ordered by the courts. Such writings may also be considered us a contempt of court, end be punishable as set forth in the above Articles, 240 and 243. ARTICLE 245. These Articles are not limitative, but apply to all oflences of a similar nature. ARTICLE 246. The trial and judgment of cases is had in the forms given by the Code. However, in default of prescribed forms and in omitted cases, the courts may, and it is even their duty to dictate to the parties or sanction the forms used by them, which they deem necessary or efficient to validly try coses, give a solid foundation to their judgments and insure their execution. ARTICLE 247. The style of procedure is not confined to any technicality or form of words. Every pleading shall be concise, drawn in simple, cleai and intelligible terms, dis- tinctly enumerate the grounds and object of the demand, and the written language o*' the Court shall, in so far as the particular character of the subject permits, be conformable to ordiuary language. ARTICLE 248. The phraseology of the procedure must be undcr- siwu suuviuuij^ i\> vuci iui;;a ui uuuokruuiiuu ui oruinary fa •™-«>l * J i 'if JUDICIAL REOEOANIZATION. 207 languajje and bo interpreted in the sense most favorable to the validity of judicial acts, and that most suited to their producing their natural eflect. ARTICLE 249. Errors of calculation, of drafting, and all faults of caligraphy, when apparent, are corrected by the Courts themselves, in addition to the parties being also allowed to rectify them, on a written or verbal demand to that effect, with or without notice to the other party, in the discretion of the Court, and according as the j-arties suffer or not by such default of written demand or lotice. ARTICLE 250. Defects in form involve nullity only when this penalty is formally pronounced by some article of the Code or any other law. ARTICLE 251. In every other case, the nullity is within the discretion of the courts, whose judgment upon the matter is not subject to appeal, and it should be pronounced only when the violation of the prescribed form causes to the party invoking such nullity, an irreparable injury. OtL er- wise, and if the error ic aot one of those which, according to the last Article, they may of themselves amend, they are forbidden to overlook it ; it shall be always lawful to the party who, either personally or by the executive officers whom he has employed, has made a mistake in the form, io amend it and repair such defect i\|i his proceedings. 208 JUDICIAL REFORMS. ARTICLE 252. Except ill cases of absolute nullity, no objection to the form, raised without a substantial grievance by any party, shall be favorably received by the Court. ARTICLE 253. In matters -within the jurisdiction of the ordinary courts, for which they are severally appointed, all the judges, chief justices and puisn6-judges are equal m power, and their jurisdiction extends over all and every part of the Province. ARTICLE 254. The judges are, however, distributed in special jurisdictions, within whose limits they perform their ordinary duties. But this assignment of jurisdiction does not take away their competence in the other jurisdictions of the Province. ARTICLE 255. Unless a contrary provision, expressed or implied, is contained in the Code or in any other lau', every judicial act muy be done and signed by a judge, outside the juris- diction in which the matter to which such act refers is pending, or of the jurisdiction in which such act must be executed, provided such act be done and signed in the Province. ARTICLE 266. The sittings of the Courts are public, and no one can be refused entrance thereto. Any person, however, Vfho disturbs the order of the sittings, is guilty of a con- tempt of Coiut, and may be expelled therefrom. I i i: JUDICUij REOROANIZATION. ARTICLE 257. 209 In the discretion ol" the judges, certain cases, the trial of which would be of a naturo to cause scandal and be hurtful to public morality, may, however, bo heard with closed doors, the parties, the advocates and the witnesses, with the executive officers of the Court, being alone admitted. A part only of the audience, such as women and children, may be excluded. ARTICLE 258. All judicial matters are not necessarily, although they may be validly, dealt with and decided in open Court. ARTICLE 259. Every matter not indicated as requiring to be tried and heard in open Court, may be so tried and heard in the judge's chambers, or in cases of necessity, even in his permanent or temporary residence; ARTICLE 260. Those matters which must be tried in Court, are called Court proceedings, and the others are called Chamber proceedings. ARTICLE 261. By consent of parties, the cases for hearing before the court may, in urgent cases, based on public interest or the private interest of the parties, whose importance the judge shall determine, bo in his discretion heard in Cham- i :_ Al.« „^ iJ^'n^,^ y^P 4li/» in#lrrn nr in nnv nublio or □Urs, ill mo ir:Qiu.t:ii^c vi < txv j<«^«e,^i -- -'- ,• i- — private place, provided that the judgment, if not rendered at once, or on the day following the hearing, be rendered 14 209 210 JUDICIAL REFORiMS. in open court in the ordinary way, and that in the former case it be, without delay, enregistered in the oihce of the court where the case is pending. ARTICLE 2G2. If, at the opening or at any period of the term, or at any time at which a Court should be held and at which any judicial proceedings should be taken, there is not at the chef-lieu, owing to some accident, a suitable court-house in which lo hold the sittings of the Court and take such proceedi:«';s, such sittings may be lawfully held in any building chosen for that purpose by the judge, upon an order entered 'u the register. All writs of summoiis shall be returned in the place thus temporarily sot apart for the holding of the Court, defaults shall be there recorded, and all proceedings taken with the same effect as if in the ordinary court- house. ARTICLE 263. In cases in which this Code or any other law has no express provisions applicable to questions of procedure raised before the courts, they shall aearch among analogous cases for the rules of their decisions. ARTICLE 264. In the absence of such analogy, and if a precedent cannot be found, the rules must b-^ sought for in the general spirit of our judicial organization and oi cur laws of proce- dure, and in the common law, and in default of all these, they shall be based on common sense. I' ilil !i I JUDICIAL REOUOANIZATION. 211 ARTICLE 265. Every proceeding is susceptible of amendment at any stage of the proceedings. ARTICLE 266. In counting the delays upon summons and all delays of procedure, non-juridical days are not reckoned in commencing or completing such delays, but they are so reckoned in the interval. ARTICLE 267. If the day upon which the return of a summons or any other judicial act must be performed, falls upon a non.juridical day, it may bo so performed with the same effect upon the nearest following juridical day. ARTICLE 268. Neither the day from which the delay is reckoned, nor that upon which it is finished, counts in the interval of time required to render valid a summons or any other judicial act. In these matters, all the delays are composed of clear days ARTICLE 269. The words "Tribunal." "Court" or "Judge," applied to the judges in the exorcise of their jurisdiction, arc synonymous. ARTICLE 270. It is within the power of the courts to appoint permanently, for all business, or temporarily for each case, an interpreter to translate into English or Freach the ^ 211 nt at 212 JUDICIAL REFORMS. d all ed in ,re 80 mons K>n a same Loued, terval other iposed pplied n, are ppoint h cose, :h the • idTm • '"^ r^^''' ^^^^^ ^" «^*^«r of these two be an officer of the Court for the time of the duration of h s functions, and must act under oath. ARTICLE 271. it a so has the same power to require that every act within ;h./r»;:t '"" "•' '""'"™"^ ™^- *"«—''" ARTICLE 272. r.iu K ^"^ .^^^'"'*'' ^"^ *^^ J'^^S^^ ^^^*1 commissioners who will be mentioned in Articles 340 and 341 sheriffs nJh power of administering judicial oaths in civil mooters ARTICLE 273. ««]. *u ^° ^'f''''''^ ^®"''"'*^ ^'^^ ^« received by the courts ARTICLE 274. The Court cannot adjudicate beyond the conrln sions of the parties, hut it may reduce and modify the„:!"* ARTICLE 275. It is not, however, a violation of the rule laid the conJu '""f "^ ^^"°^^' ^"^ - adjudicatL b y 1 L^r,tlT^,*°^ -^-<^-ry condemnaLs - „..n8io« Ox .iius« aemanaea, and to order preparatory JUDICIAL REOROANIZATIOK. 218 and provisional measures, necessary, though not demanded, to insure the execution of the judgment and to render justice to the parties, as will be more amply detailed in the Articles of this Code, which treat of the power given to the parties to produce supplementary conclusions at the hearing upon the merits. ARTICLE 276. A party who, by Ibrgetfulness and with no inten- tion of remitting the balance, has claimed less, than that which is due to him, may remedy the omission by an inci- dental demand produced before the judgment in the same suit. The same rule applies to that which has become due since the institution of the suit, by reason of the same cause of action. ARTICLE 277. No person can plead in the name of another. The Sovereign alone pleads by attorney and cannot do so other- wise. ARTICLE .8. It is not however a violation of this rule to plead by representative, such as minors who plead by means of their tutors, interdicted persons by their curators, and cor- porations by their administrators. Except the Sovereign, as above stated, and public bodies who can appear in suits only by attorney, every person may do so in person with the same effect. .ARTICLE 279. No public oiEcer can be sued for damages, by reason of any act done by him in the performance of his duty, nor can any judgment be rendered against him, 218 214 JUDICIAL REFORMS. unless notice, m writing, of such suit, specifying the grounds of action and stating the name and residence of tHe plaintiff's attorney or agent, be served upon him, in the usual manner of serving summons, at least one month be- lore the institution of the suit. ARTICLE 280. The transmission of a record, or of part of a record 18 made m any way that may be agreed upon between the parties ; m default of such agreement, it is transmitted through the post office, the party requiring it paying the postage. i J o "^ ARTICLE 281. Any prejudice arising from delays in the trans- mission, 18 chargeable to the party who has not paid the postage. ARTICLE 282. In the investigation of disputed facts, the iud-e may, in addition to tjio proof adduced by the parties endeavor to airive at a clear understanding of the matter' by using any means requisite to ascertain the truth. ARTICLE 283. He may cite before the court and compel, under the penalties of the law, to appear and testify before him all persons whom he may think are in a position to enlio-hten him upon the^pretentions of the parties, x^hatever miy be their rank anu position, scientists, public officers, or private indiyiduals provided always that this Article does not aiicct pnvileged cases. I) i JUDICIAL HEOROANIZATION. 215 The same rule applies to legal incapacity, both with respect to the quality of the witnesses and to their testimony. If the suit turns upon the verification of writings ' or special and technical matters, respecting the arts, sciences, professions, trades and industries, the courts may order inspections, operations -and valuations to be made by scientific men and those skilled in and cognizant of the matter. The greatest latitude is given to the courts in this respect, and their judgments are not subject to appeal on these points. They shall not, however, have recourse to these special methods, except in cases of necessity, and in the ascertained absence of means of discovering the truth and of rendering justice to the parties, by means of regular proof made by tuem, in the course of ordinary procedure. ARTICLE 284. The rules of interpretation of the civil law apply to this Code. ARTICLE 285. Article 17 of the Civil Code, and all interpretation laws in force, equally apply to it. ARTICLE 286. No person can take upon himself to redress his own grievances, and whoever seeks to obtain a right which is denied him, must sue for it before the Courts. I'' ! 216 JUDICIAL REFORMS. ARTICLE 287. In order that a person may be in a position to appear before the Courts, in his own name, and without any outside authorization or intervention, it is necessary (except in the cases hereinafter mentioned, in which mino- nty is not an obstacle to the exercise of this right) that he be of full age, have the use of hi^ reason, and the free exercise of his civil rights and the disposal of his property, and not be under any legal incapacity. ARTICLE 288. It is necessary that he should have an interest in the suit. Such interest, except in special cases, where it is otherwise provided, need not be actually existing; it may be only eventual ^ A'RTICLE 289. Married women, minors, interdicted persons, and those who are civilly dead, cannot plead or be impleaded except in the following cases : A wife, being a public trader, does not require the consent or presence of her husband to take proceedings before the Courts, in connection with her business ; A married woman, separated as to property, or who. not being separated as to property, has by her con- tract of marriage reserved the enjoyment and management of her property, may, alone and without the assistance ond authorization of her husband or of the Court, appear in her own name and formulato all demands, and set up all pleas necessary for its administration and preservation. bhe takes alone, in her own name, the personal actions be- longing to her. Further, a married womau does not I JUDICIAL REOROANIZATION. 217 require the authorization of her husband or of the Court to institute, in the case provided lor by sections 96 and 97 of the Quebec License Law of 1878, an action of damages against a person licensed for the sale of intoxicating liquor, •who, notwithstanding the prohibition made under section 95 of the same law, sells such liquors to her husband. She may also, without the intervention of her husband or of the Courts, exercise civil recourse, arising from offences committed to her prejudice. ARTICLE 290. In all other cases, no married woman can appear in her own name, without being authorized by her hus- band, present in the case, or by the Court. ARTICLE 291. A minor, aged fourteen years, may institute an action to claim as wages or salary, the price of his work or of his services. ARTICLE 292. A minor, emancipated by marriage, may appear in his own name and institute all suits and personal actions respecting the administration, preservation and enjoyment of his property. ARTICLE 293. The miuovj emancipated by law, cannot do so without the assistance of a curator to his property or ad hoc, and if it has reference to immovables, ho must be assisted by a tutor ad hod 'ifllp 218 JUDICIAL REFORMS. 217 ARTICLE 294. An unomancipated minor, being a trader, who, for the purposes of his business, is reputed to be of full age, may institute all real and personal r =on8 relating to such business. For all suits outside such bu , «s, he is cor idered as an ordinary minor. ARTICLE 295. An emancipated minor caimot institute any real action without the assistance of a curator to his property or one appointed ad hoc, and without the authority of justice. ARTICLE 29G. "With the exception of the above-mentioned cases, an emancipated minor can no more appear than an unem- ancipated minor. ARTICLE 297. An unemancipated minor cannot appear in his own name. His ordinary tutor or tutor ad hoc alone can appear for him and in his name. ARTICLE 298. To institute a real action for a minor, the tutor, however, should be duly authorized, upon the advice of a family council. . ARTICLE 299. A person interdicted for insanity or prodigality cannot appear in his own name. His curator must act for him, in his quality as such. I iH li 1 '. I I I JUDICIAL BKOnOANlZATION. ARTICLE 300. 219 A person to whom a judicial adviser has been appointed, cannot act without the assistance of such adviser. ARTICLE 301. No real action can be brought by a curator in the name of an interdicted person, or by the interdicted person himself, without the assistance of his curator, and without being previously duly authorized upon the advice of a family council. ^ ARTICLE 302. A person civilly dead cannot appear in any suit except to claim necessariej. ARTICLE 303. Corporations cannot appear except under th^ir "corporate name, recognized by law or usage, or given them by their charter, or the title creating them. • ARTICLE 304. No suit respecting a substitution or the property composing, it can be received unless a curator appointed to such substitution be party to the suit, in addition to the other persons whoso presence therein is necessary. ARTICLE 805. There is no right of action against a person who is civillv dead. 219 BUit vrho 220 JUDICIAL RKF071M8. ARTICLE 30C. As to the other persons above mentioned who are incapacitated, that is to say : married women, minors, in- terdicted persons, and corporations, they cannot be sum- moned before the Courts, except in the forms, qualities and conditions set forth in the above articles, . and every omis- sion, if not remedied, shall he a bar to the action which is afiected thereby. ARTICLE 307. Such bar, however, is not always absolute, and any nmendment, made between the institution of the action and the final judgment, if no plea in bar is produced, and up to judgment upon such plea in the second case, has saving tU6 adj-«dication left discretionary with the Court as to the costs of the incident, the effect of rendering the suit valid in the following cases : If a married woman, separated or who, beino- common as to property, but who has the administration of her property, institutes a real action, or a married woman not common as to property, but who has not the adminis- tration of her property, institutes a personal action ; If a minor, emancipated by marriage, institutes a similar real acUon, or, if being emancipated by law, he in- stitutes a personal action without the assistance of his cu- rator ; If an emancipated minor, assisted by his tutor for real actions, institutes a similar action without judicial au- thorization ; If a person interdicted for prodigality institutes a personal action without being assisted by his curator ; If a curator to a person interdicted for insanity or prodigality institutes a real action without judicial* autho- rity; I \k I Ti 1 11 JUDICIAL BEOROANIZATION. 221 If, under similar circumstances, real or personal action's are instituted against such married women, minors, interdicted persons, tutors and curators ; In each of these cases, it is lawful for the husband lo intervene in Ihe suit and ratify the actions of his wife, and for the tutor and curator, those of the minor and of the interdicted person, for the past, and to continue them in the future. In the case 'of a corporation improperly described, the rectification of the error may be made with the per- mission of the .Court, upon simple notice served upon the opposite party. 221 sonal inoT8, iband wife, of the in the ribed, ) per- il the I PART FIRST. PROCEDURE BEFORE THE VARIOUS COURTS. book: ifii^st. SUPERIOR COURT. ORGANIZATION AND PRELIMINARY PROVISIONS. ARTICLE 308. The Superior Court is composed of twenty-seven judges, two chief justices, and twenty-five puisne judges, of whom seven shall reside in the city of Montreal, four in the city of Quebec, and one at the chef-lieu of each of the following districts : Rimouski, Kamouraska, Montmagny, Beauce, Saguenay, Arthabaska, Three Rivers, Richelieu, St. Hyacinthe, St. Francis, Bedford, Iberville, Bcauhaniois, Ottawa, Terrebonne and Jolicttc, as each shall be assigned by comjwtent authority. ARTICLE 309. One of these judges shall be called the chief justice of the Province, and shall reside in one of tho two cities of Quebec or Montreal. ARTICLE 310. Tho second shall reside in the other city, and shall be called the chief jusiice of the district in which he shall resido. i' f! Iff ^1 '» 224 JUDICIAL EEFORMS. ARTICLE 311. Tho chief justice of the Province, in addition to tmeofthecomm^rmto force of this Code, tho exorcise of prerogatives and duties thereto attached, in the jurisdiction of the Provinco m which ho shall reside, and the second ch f justice, in addition to the same ordinary functions, sh 11 exercise the same powers, privileges and prerogatives and perform the same duties of chief justice in the othe jurisdiction. These duties are found in tho Judicature Acts and in the Code of Civil Procedure. ARTICLE 312. The chief justice of the province shall, however have precedence over the second chief justice and over all' the puisne judges of the Court in the province. ARTICLE 313. M * ,^* "'° '="«P''»'' Of ""I districts of Quebec Montreal, Gaspe, Saguenay and Chieontimi. whose terrt tonal boundaries shall remain tho same, the other dis ictl of the province, that is to say: ,ho districts of Kiml ki Kamour^ka,Montma,n,y,Bea«ce,St.Fra„cis,St.Hyacrhe' A thabaska. Three Eivers, Richelieu, Bedford, Iborv lie divided into five circuits (»rr„«/,«e»..„&) each formed of three districts, as follows: i<"mea oi 1. The first district, composed of Rimouski SZrt' '"' ,^<""™''8»^ -I •hall be called he Aamouraska circuit ; i ^1 ' ' 'I, ! JUDICIAL REOEOANIZATION. 225 2. The second shall be formed of the districts of Beauce. Arthabaska and Three Rivers, and shall be known under the name of the Three Rivers circuit ; 3. The third, of the districts of St. Francis, St. Hyacinthe and Richelieu, and shall be called the St. Francis circuit ; 4. The fourth, of the districts of Bedford, Iberville and Beauharnois, and shall be called the Iberville circuit ; 5. The fifth and last, shall be composed of the districts of Ottawa, Terrebonne and Joliette, and shall be known as the Ottawa circuit. ARTICLE 314. Taken collectively, these circuits shall be c&llcd the five circuits. ARTICLE 316. As above stated, all the judges of the Superior Court shall be of equal jurisdiction and competence, and the jurisdiction and competence of each extends over the whole Province. They, however, exercise their ordinary functions within special district and circuit jurisdictions. ARTICLE 316. The judges assigned to the districts of Quebec and Montreal exercise their ordinary jurisdiction only in the districts to which they are assigned. ARTICLE 317. The judges assigned to the other districts, that is to say, the fifteen districts grouped int6 circuits, exercise their ordinary jurisdiction in the districts to which they are assigned, and in the circuit of which the district forms part. 15 >l 225 226 JUDICIAL REFORMS. ARTICLE 318. The Superior Court, a single court for the whole Province, sits in each district, where it is known in the proceedings before it, which should be entitled as of the particular district, as '• Superior Court sitting at Montreal " and by inserting the name of the circuit before that of the district, If it is a circuit district, "Superior Court. Jiamouraska Circuit, sitting at Montmagny." ARTICLE 319. In all the districts, except those of Gasp^, Saguenay and Chicoutimi. which are not subject to this sub-division the court shall sit in two divisions, the first division and the second division, which name should be added to the heading of the proceedings, '• Superior Court, sitting at Quebec— Second Division." A .1. u ''Superior Court, Three Rivers Circuit. sitting at Arthabaska— First Division." ARTICLE 320. The jurisdiction of the Superior Court extends over all matters of a civil and commercial nature in the Province but in those in which the County Court has juris- diction, the competence of the first only begins where that ot the second ends. ARTICLE 821 All matters within the jurisdiction of the civil tribunals, may be divided into three classes : 1. Matters in which the recourse is exercised by action under the common law ; :;iJ « % t.)|! I| I I 1^ ! 1 M ! JUDICIAL BEOBQANIZATION. 227 2. Those in which it is exercised by writ or pro- ceedings in the nature of a prerogative writ ; 3. Those in which the recourse is special aiid is created by statute. These three different kinds of recourse and the procedure for their exercise, will be treated in the continu- ation of this Code. ARTICLE 322. With the exception of actions relating to the civil status of persons and those whose institution is accompanied by a writ of capias ad respondendum, the County Court has jurisdiction overall common law actions, whose object is appreciable in money and does not exceed the sum of $100. , ARTICLE 323. The Superior Court has exclusive jurisdiction over actions relating to the civil status of persons, over the other actions, for amounts over §100, and over the two other classes of actions mentioned in article 321, in which the first division of the Superior Court, held by three judges, two of whom shall be a quorum, receives the evidence, . silting the court, and hears the meritjt of contested cases, and sits in review upon certain judgments of the second division. ARTICLE 824. The second division, held by one judge alone, hears the evidence, decides summary matters and those by default, and hears all the incidental proceedings in the trial of contested cases, subject to the review of his judg- ments by the first division in the cases provided for. 228 JUDICIAL REFORMS. ARTICLE 325. In actions in which the County Court has juris- diction up to $100, the Superior Court decides finally from that sum up to $500, and, subject to appeal, above that sum ; in questions of state and all matters in the second and third classes of recourse set forth in Article 321, whatever be the amount of the object in litigation. ARTICLE 326. In the distiicts of Montreal and Quebec, the ordinary judges of these districts ^old both divisions. In the circuit districts, the three judges residing in these districts hold the first division, and the second is held by the judge of each district. ARTICLE 327. For the purposes of the first division, the circuit composed of throe districts is under the joint care of the three judges as if it formed only one district, and for the purposes of the second division, each division is under the caro of its particular judge. ARTICLE 328. In cases in which, owing to the incompetence, absence or sickness, or to any other cause whatever, the district judg.) cannot hold the second division, the county judge replaces him in holding such division, and in all the duties connected therewith, and he has, for such purposes, the same powers, jurisdiction and authority as the judffe of such district. J »« "* JUDICIAL REORGANIZATION. 229 ARTICLE 329. In the districts of Quebec and Montreal, as in the circuit districts, if a chief justice forms part of the first division, he presides over it, if not, it is presided over by the senior judge in order of appointment. ARTICLE 330 If the first division is held by three judges, the decisions are rendered by the majority ; if it is held by two judges only, they must be unanimous, and in case the judges disagree, the case is heard de novo before these two judges and another ordinary judge, or an assistant judge appointed to give his vote, so that a decision may be ren- dered. ARTICLE 331. The clerk immediately gives notice of this dis- agreement to the Advocate-General, who confers thereon with the chief justice of the jurisdiction to which the Court belongs, who assigns an ordinary judge, if it can bo done without interfering with the duties of the Court to which such judge belongs, if not, an assistant judge, to give the casting decision, and who, on the day fixed, hears the case with the judges who have differed in opinion. ARTICLE 332. In the district of Montreal, two sections of the first division shall sit at the same time in different rooms in the Court House, each section being composed of three judges, of whom two shall form a quorum ; they shall each have equal powers, and shall have the same functions as a 2S0 JUDICIAL REFORMS. sinffle division would have, if not so divided Th«v .h 11 ARTICLK 3.^3. - be sottat^llr ^"' '"' «'^' <"''»'- ^^=« ARTICLE 384. per™»ue,l'':;dr„''f """• '"; '"''^' '""™" ^h.,! sit wants of t e' Lie al 1.'^ '"'''"' '■''^ »"''« ^'^'if ">» the ti„e of the j,,d,o;r;:,w" "" """'"• •""• ""'«'• ARTICLE 335. • fixed in ]t Zni; ?' Tf r °' ^'^ ^^'''^^ -" ^- following, of The Tot fort ' "'""^^ ''' ^'^ -^ea ARTICLE 346. «♦• r *• ^^? P.'^of made by affidavit or otherwise, to the Mtisfaction of a inAtra *V,«+ - *, i- . , . "o J — 0-; """v a jfc/aifcy, vviio aas apparently a F4. -'J '■iiiir PI V i' ^ Jl JUDICIAL REOBOANIZITION. 288 Rood right to exercise in justice, either as plaintiff or defendant is uu^ble to make the necessary disbursements, such party may be authorized to plead in forma pauperis, and the officers of justice are. under such authorization obliged gratuitously to perform their several duties for such party, to assist him in establishing such nght. ARTICLE 847. The preceding article does not apply to penal actions. Neither does it apply to those other suits which, however well founded in law. may seem to the judges to be vexatious or animated with a desire to damage the adverse party. * AKTIOLE 848. Such authorization, which upon proof that justice has been deceived, or that the party was when it was Tven, in possession of. or has since acquired, sufficient property to allow him to make such disbursements, may be revoked, has not however the elFect of preventing the party being condemned to costs in favor of the adverse party, in case he becomes liable thereto. AUTIOLE 349. It is to the officers of justice, and not to the party ' pleading in forma pauperis, that the adverse party who rlumbs as to the costs, shall be condemned to payj^e fees for services so performed. And an execution therefor may be issued in their favor. Ui ^tlDtOIAL RSFORMSi ARTICLE 350. Only one execution shall, however, be issued for the joint benefit of all the officers, for the amount due to each, and each will be paid his claim out of the moneys levied under such execution, after such moneys have been deposited in the clerk's office. ARTICLE 361. In a suit for personal damages resulting from an offence, if the plaintiff is insolvent and the court believes the suit vexatious, it may compel the plaintiff to give aecixtity juUicaium solvi. ARTICLE 852. No person nan be condemned unless he has been duly summoned, or has appeared voluntarily. I li .\ i Mil i i ^ I I ' I TITLE B^mST- OF THE SUIT. CHAPTER FIRST. OF THE SUMMONS. ARTICLE 353. Ill perfaonal actions, the summons may be brought : 1 Before the court within whose jurisdiction the defendant,' or one of the defendants, is personally served ; 2. Before the court of the place of the domicile ot the defendant, or one of the defendants ; 3 If the defendant has not, or if none ot the defendants have a known domicile, before the court of the residence of the defendant, or of one of them ; 4 Before the court of the district in which the defendant, or one of the defendants, is served pe"o»*"y; 6 Before the court of the district m which the undertaking which gave rise to the action originated or before the court of the place in which such undertakmg should be executed. ARTICLE 354. If the fact or the contract, which gave rise to the obligation, commenced in one district and was completed in another, the obligation shall be deemed to have been for the purposes of the jurisdiction of the court, con- r~~ '*l 286 JUDICIAL REFORMS. tracted in each of these two districts, and the Court of each of the two shall be competent to take cognizance of the action. < ARTICLE 355. If the fact, commenced in one district, was con- tmued in a second, and completed in a third, the obligation shall be deemed to have been, for the purposes of the jurisdic . tion. contracted in each of these three districts, and so on, and the tribunal of each of these three districts shall be com- potent to take cognizance thereof. ARTICLE 856. If the obligation should be executed in different districts, the principle of the preceding articles is applicable mutatis mutandis. ARTICLE 357. In the case in which an action claims several debts. It may be instituted before the Court of the district iu which any one of these debts was contracted, or before the Court of the district in which it should be executed. ARTICLE 858. The above article is applicable to the case in which each of these debts was contracted or should be executed in different districts. ATRIOLE 859. If a plaintiff, to bring before a strange jurisdiction one or more defendants, invents aright of action against aay ono to serve him personally or at his domicile, with a ifM' « ■' ' ^ 'If In I 1 1 JUDICIAL BEOROANIZATION. 287 view of bringing the others before tbe Court of the place of such service or of such domicile, the summons may be set aside for the whole. ARTICLE 360. Every action founded upon a conditional obliga- tion or upon an eventual co.itract, is deemed to have originated at the place where the contract, to which the condition is attached, was made, or at the place where the condition was or was not fulfilled. ARTICLE 361. In actions respecting movables, the defendant is served as in personal actions, but if the writ is accompanied by a seizure by garnishment or in revendication of the thing claimed, it is made before the Court in which such seizures were made. ARTICLE 361a. 1. In the case of the usurpation of corporate powers by any body or individuals ; 2. Of violation by a public body of the provisions of its charter of incorporation, or commission of acts entailing the forfeiture of such charter or equivalent to a renunciation of such charter, or the usurpation of its franchises or privileges ; 8. Of usurpation by an individual of an office, franchise, prerogative or trust in any public body or office ; 4. Of the writ of mandamus ; 6, Of the writ of prohibition ; 0. Of the writ of injunction ; r 288 JUDICIAL REFORMS. The defendant may be summoned: IN THE riBST CASE. P.ace of wrest «°bl::"L'''^T' f'"'"'^'""'"" « which it is accused of ha "„ "^ °^ *» '^"'"'=' '" ifiti.. a summons that hasr^T""?"* "-^ usurpation, before the Court^th dol^T° " """'"'■^ ""' ^o-rt, and domicile of th defctaa, t T "";''f--«. '■■ default of Court of the distric "roe ofth! r .'"?'."'' '""^°™ *-' «"eged the usurpation" ■;" /'*:;•!■"• «'>-'? it is charged against one or more indS,!™""* "'""°'' '' IN THB SECOND CASE. body has'^l^alli:^^^^^^^^^^^ before the court of the d^L 7 ^^"'*' "^ ^'^«'"'^«^' ^^ -bioh the party 'ptf/t^t ^ ^ ^-^^^j^e f t^cts i. - n^urpations have been commitred ^''^ ^'^' '"^ IN THE THIRD CASE. in aeto.tltc„'^ri:L*^rh:fr'/ ''"■--'<'-«. the defendants, or befor. ttV defendant, or of one of ^h^piace.i«;,h.!ett\X:rS,tr:^ef-- < JUDICIAL REOROAKIZATION. 239 1 I IN THE FOURTH, FIFTH, SIXTH AND EIGHTH CASES. Before the court or courts, within whose territorial jurisdictioa the plaintiff demands the execution of the writ of Mandamus, Prohibition or Habeas Corpus. IN THE SEVENTH CASE. As in real and mixed actions, if the letters-petent whose cancelling is demanded, affect immovables, and as in personal actions, if they have not that effect ARTICLE 362. Hypothecary suits against immovables, whose proprietors are unknown or uncertain, and the partition of lands situated iu the townships, are taken before the court of the dist- .ct in which such immovables are situated, and if any immovable in the Province is situated partly tn one district and partly in another, the court of either district is competent to take cognizance of the matter, as if the whole was situated in only one district. . ARTICLE 363. Oppositions to marriage must be brought before the court of the district in which the marriage is to be celebrated. ARTICLE 364. If the sole judge administering justice in any district is liable to be recused, or m\i8t be a party to the suit, the action may be brought in one of the adjoining districts, the grounds of recusation or disability being alleged in the demand. 289 240 JUDICIAL REFORMS. ARTICLE 365. Saving the e^ieptions hereinafter, real and mixed actions are brought bel'ore the court of the defendant or of one of the defendants, or before the court of the place where the immovable in question in the suit is situated. ARTICLE 366. Actions to interrupt prescription, those to obtain delivery of an immovable under a contract, in resiliatiou or recision of the alienation of an immovable, and to obtain possession or re-entry into possession, are, in the sense of the preceding Article, considered mixed actions. ARTICLE 867. The action of boundary is brought before the Court of the place where the property is situated, if one of the parties is domiciled within the jurisdiction, if not, it is subject to the rule laid down in the above Article. ARTICLE 368. The action for the dissolution, division or liquida- tion of a commercial partnership, is brought before the ' Court of the district of the principal place of the partner- ship's business or of its office. ARTICLE 869. If the firm has several places of business or several offices, before the Court where one of such places of busi ness or offices is situated, or of the Court of the domicile of the defendant or of one of the defendants. JUDICIAL REORGANIZATION. 241 ARTICLE 370. The action for establishing heirship or for the parti- tion of a succession is brought before the Court of the domicile of the deceased, if at the time of his decease he was domi- ciled in the province, wherever may be situated the movables or the immovables, whether in this country or in foreign countries. ARTICLE 371. If the deceased, at the time of his death, had no domicile in this province, but left real property therein, the action must be brought before the Court of the place where the property is situated, and if he has left property in different districts, before the Court of the place where one is situated, or of the domicile of the defendant or of one of the defendants. ARTICLE 372. If the deceased, who had not, at the time of his death, any domicile in the province, but was, however, bom there, or had been, at any time, domiciled therein, leaves one or more heirs or legatees and movable property, the action for establishing heirship or for the partition, as the case may be, shall be brought before the Court of the domicile of the defendant, or before the Court of the domicile of one of tbem. ARTICLE 878. The competence of the Courts respecting the action 01 tuiru purucB uruuj^ui uj^aiuoi a aUwi;€csiiu'i is regulated by the Articles 868 and 869 above. 16 r )■ w iqw ,-»—_, 242 JUDICIAL REFORMS. ARTICLE 374. « After the partition, this action, brought by third parties against the heirs, is subject to the t)rdinary rules of competence respecting other persons. ARTICLE 375. The action for separation from bed and board or of property, is brought before the Court of the place of the actual domicile of the husband in this Province, and If he no loiiger has a domicile, at the last domicile which he had after the marriage, if the marriage was contracted m the Trovince of Quebec, or before the Court of the place Where he is personally served. ARTICLE 376. In all cases in which the situation of an immovable determmes the competence of the Court, such situation partly m one district and partly in another, or the situaUon of «=veral .mmovablcs mentioned in the action in differen" distncts. gives to the Courts of each of these placela concurrent jurisdiction. ^ AKTICLE 372. i T^« s"'™ of real actions is made as in pereonal actions but ,f the writ is accompanied by a sei^re by garnishment, or m revendic.tion of the thing claimTit is ^et 1^? "' ''°"' "'"" '^'''""' '" ""'0^ -«"'^«. Mi I '! JUDICIAL BE( B0ANIZ4TI0M. AllTICLE 378. 248 The defendant must be served either personally or at his domicile, speaking to a reasonable person of hie family. ARTICLE 879. In commercial matters, the service may, with equal effect, be made at the business office or commercial establishment of the defendant, si,.aking to a person in his service. ARTICLE 380. In civil matters, it is only in default of known domicile, that -the service may be made at the business office, chambers or commercial establishment of the person summoned, speaking, as above, to a reasonable person in his service. , ARTICLE 381. The Sixme rules, saving the exceptions hereinafter, apply to each defendant, if there are several. ARTICLE 382. In all cases in which a husband and wife, not separated from bed and board, are defendants in the same case, whether the husband is with his wife a defendant in name or in person, or that he is in the case only to authorize her, the serWce upon the husband in the above form, is sufficient for both consorts. One copy only of the sum- rnrkna AnnftHv RllfficeS. 248 244 JUDICIAL REFORMS. ARTICLE 383. i.«pH fn li '^'^/'■' separated from bed and board, and ummnf ^'"''" any title whatever, two copies if the muTbT' "' "''T"^' '"^ '^' ^"^^^"d ^d tl^e wife must be summoned separately, as if they were 8trP-.«rs and as if the wife had never been under Lrita! contX ARTICLE 384. nl..« f K^'"'''"" "f " ^ ^'""'^^ partnership is made at Us P ace of busmoss. if it has one. and if it has not. upon one ^t'::"^'::tr rV^'V'' ^^^ -nnerVre'cribld ARTICLE 385. A similar partnership, if it has an agency or commercial establishment, or seat of business different fU Its pnncpal establishment or seat of business, and 'n another distnct. may. in cases brought in the latter rstri" be there summoned by speaking to one of the partners personally, or to one of the employees of the firm at such second business office, or at the domicile of one of those partners, speaking to a reasonable person of such domicUe. ARTICLE 386 Service upon a general partnership is made at its commercial establishment or business office, speaking to a person employed in .uch establishment or iffice. o there or e^owhep upon its President. Secretary. Trustee. Agent or official, speaking to each personally; or at their domS .11 r^r'^"'^^ ^P^^^^"» '' a reasonable p"!' such domicile or residence. *'«*«»"« o. :i i; j^ JOSIOIAL BBOROANIZAtlON iui ARTICLE 387. If the partnership has no known commercial establishment or business office, nor any known President, Secretary, Trustee, Agent or any other official equally known, upon a return by a bailiff to thar effect, the second division may order it to bo summoned by a notice to bo inserted during one month, in at least one newspaper mentioned in the Order allowing such service, as well as the number of insertions, and such method of service is sufficient. ARTICLE 388. Service upon a public body or corpDration is made in the manner set forth in the general law respecting corporations, by its particular charter, apd in the absence of similar provisions, in the manner prescribed in the two preceding Articles. ARTICLE. 389. Foreign companies or corporations, anp« i ! U:-;i i JUDICIAL HKOROANiaATlON. m 3 If, never having had a domicile in tie Province, or not having property therein, he has become liable to an action, and that in eacn of these cases he cannot be found within the jurisdiction of the Court, to be there served. ARTICLE 402. In any of these cases, upon a return by a bailiff to the effect that, after a diligent search, he has been unable to find the defendant within the jurisdiction, the said return being accompanied by an affidavit of a person, other than the plaintiff, attesting to the facts above set forth, special to each case, it is lawful for the party to notify, by a notice in the language of the defendant, under the signature and seal of the clerk, twice inserted in a news- paper published in the district in which is situated the Court of the defendant's domicile, the second advertisement being inserted eight days after the first, to appear before the Court within one month from the last insertion, and if not, that proceedings will be had against him by default ; and if, after the compliance with these formalities, at the expiration of such month, the defendant has not appeared, he is, upon production of the said newspapers in the o£B.ce of the clerk, proceeded against by default as if he hod been regularly summoned. ARTICLE 408. The above Article, however, does not apply in the case of the appointment of a curator to the property of an absentee, or the order for the provisional possession of his property, according to chapters 1 and 2 of title 4 of the first Book of the Civil Gode= ^ ■ y/ i n i . ^i^ww>y*w>pi ^4d ^ r - T-/y? ■^— ,-- - 250 'judicial BEFORiiS. ARTICLE 404. A summons cannot, on pain of nullity, be served, either in church or in Court, or upon a member ol the Legislature upon the floor of the House. . . . ARTICLE 405. A fabfique of a parish or religious congregation not erected into a parish, may be served in the person of the cur4, or rector, or person, performing his functions in the parish, or of the then acting church-warden. ARTICLE 406. Such service may be made upon them either personally or at their domicile, according to the above Articles. ARTICLE 407. The summons to appear may be served upon any day in the year, not a Sunday or a holiday, legal -and civil holidays and the vacation being included. ARTICLE 4C8. Sundays and holidays are alone excepted, unless With the permission of the judge in cases of urgency. ARTICLE 409. * Every suit is instituted by writ of summons as heretofore, and the causes of the action are set forth in the writ Uself, o» in a declaration annexed thereto. Such declaration, signed by the plaintiff himself or by his attorney (except the Sovereign and corporations who must sign it through their attornev^ m"«f o^n.^,., a^succinct and lucid statement of the grounds and object'of JtJDlOlAt HEOROANIZATION. ^51 It must contain the name of the Province, Court, district and circuit, and the name and Christian najie, and actual residence of the plaintiff and defendant, and the occupation of the plaintilF.* ARTICLE 410. A widow may be summoned under the name of her deceased husband, by adding to the words "widow of" the names and christian names of the said husband. If such widow has had several husbands, such summons must be made under the name of tae last. ARTICLE 411. In actions upon bills of exchange, promissory notes or other similar commercial paper, it 's sufficient to give the initials of the christian or first name of the de- fendants, such as they are written upon such bills, notes or paper. The same applies to all other deeds or writings, whether authentic or under private signature, under which £ party may be sued under the initials of his christian names, and under the names and christian names which he therein gave to himself. ARTICLE 412. When a corporate body is party to a suit, it is sufficient to insert its corporate name, and to indicate its principal place of business, and if it is a commercial firm, it may be summoned under the name of the firm, without its being necessary to mention the names of the partners. • Wc will give in an apiwndlx, forme of declaration for all claiM* of acUoni, J,'' 252 JtrDlClAti BBFOttMd. ARTICLE 413. If the object of the demand is a thing certain, it should be described in such a manner as clearly to estab- lish its identity. ARTICLE 414. If it relates to a corporeal immovable, it is sufficient to describe it by the number upon the cadastral plans and book of reference thereto, of the place where it is situated, if cadastral plans have been made of such place, if not, the nature of such immovable, the city, town, vil- lage, parish or township, street, range or concession wherein it is situated, and also the lands conterminous to it should be mentioned. ARTICLE 416, If, in the second case, it is a body of land, known under a particular name, it is sufficient to give its name and its situation. ARTICLE 416. If the immovable forms part of a township, parish, city, town or village, the lots in which are numbered, it is sufficient to state its number. ARTICLE 417. If the demand relates to rents constituted for the redemption of seigniorial rights, or to rights relating to any seiffniory., thev must be described accordinir to the T^rnvisions of the Act 27-28 Vict, chap. 89. f . ■ ' 1 1 it i L 1 JOTIOUL BBOBOAHIZiTION. 268 AKTICLE 418. A oartT, whose christian names ate unknown to the plaintti; may be sued under the initials of -h d>nsUan ■ names or of one of them. The same applies to the limily ntme for which may be substituted the surname under rWchVhe defendant is known, but the judgment luust. Ts wait he after stated, contain at least one o the chr.s. tia^ names and the real family name of the defendant, so 1 to avofd confusion as to the identity of the defendant, "ith rJspeot to the effect of the judgment J saving always Wever the case in which the names and chnstiannames tTthose which the defendants have given to themselves Tat writes upon which the suit is based, in wh.ch Le'heTnsertfon in 'h' J"^?-™' "' »-^^Zltou; Tm names, as set forth in the writing, W.U suffice without any addition. ARTICLE 419. Tho service must be made by abailiff on the roll within the jurisdiction of the Court within which it is made, wSer the summons issued from the Court ..ithm whose jurisdiction it is served, or from any other court ARTICLE 420. The service consists in the notification made by the officer eftecting the service to ^\?''^'^'l^'^J'^^ speaks, of the demand, the communication of the original of ie writ, and the leaving with him of the copy. ARTICLE 421. If the person to whom the serving officer speak* reauires it, tho latter nmi «4- raaA it tO Mm. f n. 264 JUDICIAL REFORMS. ARTICLE 421o. The summons is not made for a fixed day mention- ed in the writ, but the defendant must be notified to appear within the delay fixed by the following articles. ARTICLE 422. Wherever may be the place in the Province in which a summons is served, within the jurisdiction of the Court or in another jurisdiction, and whatever may be the distance of such place from the Court, before which the defendant is summoned, the delay on the summons shall bo a uniform one of eight days, without any additional delay, by reason of the distance between the place of service and the Court. ARTICLE 423. Within thi« delay, increased by the delay to plead, which is three days for the production of preliminary exceptions, and six for pleas to the merits, the defendant mv t appear and plead his preliminary exceptions or to the merits, as the case may be. ARTICLE 424. If, within the eleven days after tbfl service of the summons, the defendant has not appeared, or if he has appeared and has not produced a preliminary exception, he is de pfenojure deprived of the right to produce it. ARTICLE 425. Whether the defendant has or has not appeared Anil hsiH not nrnf1iip.if1 ni-ali*^;*^^^,. i: i , — — ^ i-vx -it-.uiaiijf vjLwpiwuB, ne naa an addiUonal dcUy ^f three days, to plead to the merits, and •M mmfm-tmt^m^ •«*>fm«MM*p^ JUDICIAL BEOKOANIZATION. 256 to appear if he has not already done so. If, at the expiration of fourteen days after the service of the summons, he has not appeared, a default to appear is established against him, and he is proceeded against by default. ARTICLE 426. If he has appeared, but has not pleaded, he is likewise deprived of bis right to do so, and he is proceeded against ex parte. ARTICLE 428. Articles 407 and following presuppose that the plaintiff has, during the interval between the service and the expiration of the delay to appear, or on the day itself, returned the summons with the return of the service made by the bailiff. ARTICLE 429. . If, within the prescribed time, he does not do so, the defendant appearing at any time between the service and the expiration of the delay to plead to the merits, that is to say within fourteen days, may, by returning his copy of the writ, demand, without any formality and without giving notice to the plaintitflf, froL. the second division, a non-suit and the dismissal of the action with costs against the plaintiff. ARTICLE 430. The default to produce either the originals ox copies of the exhibits mentioned in the declaration, has the efTect of Muspoiidinsr^ de plenojufet if tho defendant wiMhes to take adva^itaWD.O» THK 8BCUVD PART, r II j 1 i j i III ■|p^w»**^i»"«»'»**^^T"^wW^*i^BIH» ^IPI^BIsriDIX. Act regulating the summoning of witnesses, and their depositions before the Courts. Whereas the giving of judicial evidence is a mutual and gratuitoub service, which the members of the same civil society should retider each other ; Whereas the fulfilling of this duty is one of the essential conditions of the adminis- tration of justice, and thence in part arises the jurisdiction of the Courts over the litigants of all jurisdictions, to compel them to appear and depose before them ; WHrr.EAS, seeing the gratuitous nature of such duty, the sole indemnity which a witness may lawfully exact from the party who calls upon him to depose before the Courts, consists in the estimate of the real loss occasioned him by the performance of such duty, that is to say, in the repayment of his travelling expenses and other disburse- ments occasioned by such testimony, which, under no pretext whatever, mould become a source of profit to him ; Whereas, according to these principles, the value of the time spent by the witness giving his testimony, cannot be a lawful cause of indemnity, and it is only by a favor based on equity that the tribunals can allow to a poor and needy witness, whose family depends upon his labor for their sustenance, the value of the loss of his time, and further, that such benevolent interpretation should not be allowed to its full extent to the prejudice of a party as poor and as needy, the poor being bound to assist each other as well as the rich ; 17 ^ / -ir- ^ 268 JUDICIAL REFORMS. Whereas these incontestable principles are not pntinto practice by the tribunals, which tax a uniform sum for every day's absence of all witnesses indistinctively, rich or . poor, without even having regard to the case in which the witness would have gained nothing if he ha^ not absented himself from home, and without entering into this dis- tinction, which is an abusive practice, and one which should now be remedied ; Whereas it is equally necessary to establish a uni- form law for the indemnifying of witnesses for their travel- Jing and other necessary expenses, and the manner of recovering this indemnity ; Whereas, further, .he means of coercion now in force for compelling unwilling witnesses to appear and give evi- dence before the Courts, are insufficient; the illusory compulsion now in use, is a source of vexation to the parties, and of the tardiness and expense of the proof and It IS expedient to adopt a more expeditious and ener-' getic means of summoning witnesses, and of overcominir and punishing their contumacy or default ; thesrb^T>,'\^°'"^' ^'' '" '^''' ^^««°"«' ^ ^-'^ tipon tne subject has become necessary ; J™?''7fi, ^" •^?'''"'^' '■'' ""^ ™* ""« "dvice and coMent oJ the Legiskturo of Quebec, enacts as follows : I. There shall be endorsed, either in writing or in print r"nareVK°''"T°!" «^'"">'-"*». ta.ow„ n'nde; folr.l r^'*""'*" '""™"* """ tte 'coming into ^t'stn wt ;r "' ""' '-' ^"■"™' .™"«^ -" inbyI'b*H/rerr;r"'''''''°" '""''"'' """"''' II I I . ' -» I Ii' I JUDIOUL RKOEOANIZATION. 269 3. Botvvoenthe summoning of the witness and the day upon which ho should appear, the delay is graduated upon the scale of the following computations : 4. The Bummons shall be for the next day. if the witness resides in the town, parish, township or other locality in which the Court is held, if made personally, and of one clear day if it has been ma^e by speaking to another person for him. .'5. ItshaUalsobe me cloar day if the witness, who does not reside in the pi ice where the Court is held, resides within a radius of live leagues, and if the summons w served upon him personally, and of two clear days, if it is served by speaking to auother person. O. The same rule applies to iho case of a distance of more than five leagues from the do cnicile of the witness to t'le Court, with an additional delay of one day for fifteen leagues, any part of fifteen leagues counting for fifteen leagues. 7. In the computation for the pre ious article, if the distance or a portion of the distance between the domicile of the witness and the Court, may be traversed by railway, each fifteen leagues of such distance shall count only as five ordinary leagues. 8. If the summons to th^ witness has been serveu upon him personally, he shall inform the bailiff of the causes which he thinks will prevint him from obeying the sum- mons, of the value of which reasons the Courts are the judges. O. If poverty or the want of pecuniary meau^ is one of these reasons, and the witness whom the bailiAT is allowed to swear, makes oath to the truth of his ass aon, the bailiff shaU offer, and if he accepts, pay over to him a 260 JUDICIAL BEFORMS. sum of money sufficient to meet his travelling expe.. ies, at the rate of ten cents for every actual league of railwry, the fiction of ;:oction 8 being only for the computation of the delay to appear, and of twe ty cenfs i. • every league of ordinary travel, and an additional sum of one dollar for his other expenses. 10. If the witness is not served personal! /, the bailiff shall lea/e, with (he person to whom he biiall give the summons, to hand to the witness, the sum of money men- tioned in the preceding section, if such person interrogated under oath, authorized as stated in Section 9, makes oath that, to the bpst of his knowledge, the witness has not the means of reachi, g the Court House. 11. He shall also inquire of such posrson the reasons, if he kno\^3 any, which might prevent the witness from obr ving the aummons, and if such person assigns any, enter his answer in his minute of service, as well as that which he learnt from the witness himself with respect to those hindering reasons. 13. Such minute of service shall contain: 1. The return of the service, to whom, where and when made; 2. The distance by the or- nary road and railway to be tre elled from the domicile f the witness to the Court ; 8. The oTers or payments of money to the witness, or to the person to whom he has spoken , 4. What wa& told to him by the w ess or by such person to whom iio spore, a to the reasu us which might prevent the appearance of the witness in compliance with the summons ; V^ The mention of the king of tL ) oath by the witness Or tap person to whom he opoke. "*^w JUDICIAL BEOROANIZATION. 861 i|l 13. The witness who appears, cannot be exempted from giving his evidence before the payment of his taxation. 14. The Court may, however, in its discretion, adopt the measures necessary to assure to such witness, if needy, the payment of such taxation. It may even order that the witness ^e not Iicard before the payment of his taxation. 1«5. In everything respecting the payment of the witness, the Gov I will be guided by circumstances, having regard to the pecuniary condition of the parties and witnesses, and shall act in such a manner as to assure to the v itness who BuITers a serious inconvenience from the delay, the pay' ment of his taxation, and on the other hand, not to deprive the party with limited means, of the evidence of an exacting witness who can, without running into debt, await the end of the case. IC. No execution shall henceforth be issued for the taxation of a witness before the final judgment, and it shall enter into the bill of costs of the case. The witness may, however, notify in writing the party condemned to i ay such costs, not to pay his taxation to any one but himself, and such payment made voluntarily, notwithstanding such ' notification, shall not be valid. 17. The taxation of a witness shall include only the actual expenses, unless the witness be poor and sufier from the loss of his time, in which case the approximate value of his work shall be allowed him. Provided always that in no case more than one dollar per day's absence shall be allowed him. 18. Every witness who, without valid excuse, neglecta to appear in Court to there givo his evidence, may, in addition to the penalty hereinafter set forth, be sued for the damages occasioued lo the party who summoaed him, owing to his being deprived of his testimony. J ^ 261 262 JUDICIAL EEFOBMS. ./ «». If, 01, tho callfnj. of Mb name on the day for which ho was summonixl, the witness do™ ,,„. , minute of service of the ramffoertfistothTr"'' '"' ""' forth L tL V . ".' ■"""■ '""''^» <■" ™'i'J '»'"»"» »et Court uptl day fiZ'tK™"?"','" "P"^" ''°''"'' ">» useTbytrf"!' °^ ?"^ " P'"'"""'' "ompulsien to be rpptaraVotoftlfw";*" '""'' ''"'"'"'"'' '-ocure the ppearance of the witness, are in their discretion. ham/ "Tr*"'^ ™'''"" """"mitted by the sheriff or biuhfi; shall howeyer, bo considered as an act dero^arry to ctrtth '""'l^-""' -"" "^ accounted rto\^ n2''T"" °f 'n° "■'""^ ""1 »f "" ■'"ilifl; incurred in this bound t'"?: *'" '''''""'' '■y*« ^"»=«. wrshSl be bound to the.r payment by cocrciye imprisonment aln^'af^^^esTwh '" '\^'°^S Sections sl,.U ifit,r„";-, r ^''P"""''''^^"' ofWs contumacy II It constitutes a contempt of Court "'umaoy,