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Les diagrammes suivants illustrent la mAthode. errata to I pelure, on A n 32X 1 2 3 1 2 3 4 5 6 CO] VOOBTl ITS THE Rl FIE CARS THE CODE OF CIVIL PROCEDURE ov LOWER CANADA; VOOETHER WITH THE AMENDMENTS THERETO MADE SINOE ITS PROMULQATION ; THE AUTHORITIES, AS RETORTED B7 THE COMMISSIONERS ; ALL STATUTES REFERRING TO PROCEDURE; THE RULES OF PRACTICE OF THE SEVERAL COURTS ; A CLASSI- FIED DIGEST OF ALL REPORTED DECISIONS, ARRANGED UNDER APPROPRIATE ARTICLES ; TABLES OF THE TARIFF OF FEES PAYABLE TO ADVOCATES ; AMD AN ANALYTICAL INDEX. BT THOMAS P. FORAN, M.A., B.C.L., OF THE BAB OF HONTBSAL. / CARSWELL & CO., 26 & 28 ADELAIDE STREET EAST. Edinburob, Scotland : 11 St. Giles Stbeet. 1879. 243281 ^:',j', r ' ' !• . -'vC W PRINTED BY HUNTIB, BOSE & CO., TOBOMTO. PREFACE. The reader may be surprised to find in Uiis work several decisions which are no longer applicable, owing to the changes effected in our laws of Procedure by the Code and its amendments ; but the compiler deemed it expedient to insert them, in order to show at a glance the successive development of our present laws, and to anticipate, if pos- sible, any future legislative enactments which may bring us back again to the system in force before the promulga- tion of the Code. Reliance may be placed on the fidelity of the references to the Decisions, as the proof-sheets were corrected from the original volumes of the Reports, and not from the manuscript. 5* Montreal, July, 1879. « - ( (; . ;■ j.r.t, vf.Xi' f .'".u-Vf >-oi '■^ '1' W - i.i.' - '|i'i --I :n'i) \ %Y '\. Jx,^^i!tv■^e ERRATA. Page 21. It 21. •1 28. i\ ■ -l' '.'it .a:;d Mil' .•?'!>; TABLE OF ABBREVIATIONS. 0.0. O.N. 0. P. Oou. 0. P. o. p. Ano. D«n. Anoien DeniiHrt. Arch. Archbold. Bour. Botiijon. 0. Ohftptor. O. 0. Civil Code, Circuit Court. P. Code of Civil Procedure of Lower CmumI*. Code Napoleon. G. Code de ProcMure Civile of France. Couchot , L. Code of Procedure of LoublMia. • Oen. Code de ProcMure de Oenbve. 0. 8. C. ConmUdated SUtutea of Canada. C. S. L. C. Consolidated SUtutea of L«lMr Oanada. Den. Denicart Dur. Duranton. Ed. et Ord. Edits et Ordonnanoea, edition in 8vo. Fer. Ferrifere. Oenbve. Code de ProcMure de Oenbve. Ouy. Onyot, Repertoire de la Juriaprudence. Her. Vte. dea Im. H^ricourt, Vente des Immenblee. Houy. Houyvet. Hyp. Hjrpothbque. Lac. Lacombe. Lau. Laurlbre. L. C. J. Lower Canada Jurist. L. 0. L. J. Lower Canada Law Journal L. Diet. Law Dictionary. L. 0. R. Lower Canada Reports. Ord. Ordonnance. P. C. Procedure Civile, Privy Council. Pigeau. Pike's Reports. Poth. Pothier; and where no other abbreviation follows, Pothler de 1* Procedure Civile. Prop. Propriety. B. Queen's Bench. « B. C. Queen's Bench Chau4ber8. L. R. Quebec Law Reports, ep. Repertoire. Rev. de L^g. Revue de Legislation et de Jurisprudenoe. R. L. Revue Legale. R. C. Revue Critique. R. of P. Rule of Practice. - S. C. Superior Court. S. C. R. Ceurt of Review. S. 0. Rep. Supreme Court of Oanada Reports. S. R. Stuart's Reports, s. Section. ^ 88. Sections. Ser. Serpillon. Stu. R. Stuart's Reports. V. or Vict Victoria. ■I p.^iii. fe bI !»I< '•!?!'!>'■ ,>.';/>''■ -^ i — Suits between lessors and lessees 887 Chap. II. — Hypothecary recourse against immoveables OF WHICH THE OWNERS ARE UNKNOWN OR UNCERTAIN 900 Chap. III. — Op the partition op township lands held IN common 912 €hap. IV. — Op compulsory partition and lioitation 919 Chap. Chap. 3 TITLE I TITLE S Chap. Chap. II Sec. Vll Chap. Ill TITLE T| TITLE CONTENTS. AKTS. w )0M- 796 797 816 819 824 834 855 866 873 876 887 kBLEa N OR HKLD T 900 912 919 • •• XUl ARTS. Chap. V.— < 660 661 Chap. VI. 665 Chap. Vll. 690 Ohap. vm. 697 Sea I. 706 « n. 7U Chap. IX. 718 Chap. X. 724 753 Sec. I. 767 763 <( II. 781 <( m. (( IV. <( V. Chap. XL Chap. XII. Of actions of boundabt or to vkrify or rectify ancient boundaries 941 -Of possessory actions 946 Of confirmation of title 949 Of separation between consorts. ■Of separation of property 972 -Of separation from bed and board 986 Of oppositions to marriage 990 -Proceedinos affectino corporations or pub- lic offices. ■Of corporations illegally formed, or violating or exceeding their powers 997 -Uuurpation of public or corporate offices 1016 >0'£ mandamus 1022 Of writs of injunction 1030 -Of prohibitions 1031 -General provisions 1032 -Of the annulling of letters-patent 1034 -Of habeas corpus ad subjiciendum in civil MATTERS 1040 BOOK THIRD. OF THE CIRCUIT COURT. TITLE FIRST.— Powers and jurisdiction op the court . . TITLE SECOND.— Ordinary procedure. Chap. I. — Of simMONs Chap. II. — Provisions concerning appealable cases. Sec. I. — Proceedings before contestation, or in uncontested suits II. — Of contestation III. — Of proof and hearing rV.— Of judgments V. — Of the execution of judgments VI. — Of remedies against judgments Chap. III. — Provisions particular to non-appealable cases TITLE THIRD. — Of suits between lessors and lessees . . TITLE FOURTH.— Suits in cases of illegal ti'.tention op lands held in free and oommon soccaoe . , 1053 1066 1069 1070 1071 1079 1081 1091 1093 1106 1107 ' 1 XIV CONTENTS. . * BOOK FOURTE COUBT OF queen's BENCH (APPEAL SIDE.) ▲BTS. Ohap. I. — Of ebror and affial fbom juDomNTS or ths SUPKBIOB OODRT 1114 Ohaf. II. — Of avpbals from ihb oibovit court 1 142 Chap. III. — Gbioeral protibionb 1164 Chap. IY. — Of appeals to hbr ma.tb8tt 1178 BOOK FIFTH. INFERIOR JURISDICTIONS. Ohap. I. — OoHHissiONERa' court fob the subimabt triax of small causes 1183 Ohap. II. — Of justices of the peace and other inferior CIVIL JURISDICTIONS 1216 Chap. III. — Remedies against the proceedings and judg- ments OF the above-mentioned COURTS .... 1220 ' I ■ PART THIRD. NON-CONTENTIOUS PROCEEDINGS. " »- TITLE FIRST. — Of registers and their authentication. Chap. I.— Of registers of civil status and the authen- tication of registers 1236 Chap. II.— Registers of registry offices 1242 Chap. III. — Registers of sheri-^fs and coroners 1243 TITLE SECOND. — Of inspection of documents 1245 TITLE THIRD.— Of family councils 1256 TITLE FOURTH.— Of tutorships and curatorships 1262 TITLE FIFTH. — Of the sale of immoveables belonging TO MINORS or other DISQUALIFIED PERSONS . . 1267 1. Rules 2. Rules 3. Rules 4. Rules 6. TariffJ 6. TariffJ 7. Appei 8. Adder 9. Index] CONTENTS. XV M XAL TITLE SIXTH. — Pbocesoinos bblatimo to scookssioics. Chap. I.— Of sbalb. abtb. Seo. I.— Of the affixing of seals 1279 <* U.— Of the removal of seals 1292 Chap. II.— Of th« invbntoey. Seo. I. — Of the making of the inventory 1304 •« II.-Of the sale 1316 Of the eale of immoveables 1320 Chap. III. —Of benefit of invbntoey 1321 Chap. IV. — Of pbovisional possession 1327 Chap. V. — Of vacant successions 1331 TITLE SEVENTH.— Gbnbbai. pbo visions applying tj the diffebent titles of the thibd pabt of this code 1337 TITLE EIGHTH.— Of abbitbations in qenebal 1341 TITLE NINTH. — Division of loweb oanaoa into distbicts fob the administbation of justice 1355 LIOB rDO- RULES OF PRACTICE, &c. ION. ;hen- . . . 1236 . . . 1242 . . . 1243 ... 1245 ... 1266 .... 1262 tNOINO IONS . . 1267 PAGE. 1. Rules of Practice of the Superior Court for Lower Canada. . 642 2. Rules of Practice of the Circuit Circuit, Province of Quebec 663 3. Rules of Practice of the Court of Queen's Bench 672 4. Rules of Practice of Her Majesty's Privy Council 681 5. Tariffit of Fees in the Superior Court 686 6. Tariffs of Fees in the Circuit Court 696 7. Appendix 709 8. Addenda 727 9. Index 729 » : V. V,4 m "'I Ji liir Abbott V y. Abbott V M Abbott V M Co.... Acheson v '. Adam v Su Adams, exp Adams v Fl Adams & G Adams v H Addison v I Aimbault et Aimbault et Akin V Hoo Alexander \ Alfourd V T Quebec Alie V Fame Allaire v Rf< Allan et al & Allard v Bei Allard exp & Allen V Har Alsopp V H a Amiot et vir Anderson v '. Anderson v I Anderson v ' Andrews et i Andrews et t Angers v Lo: Antaya v Do Arcand v Th Y. Ry. ( Archambault Archambault Archambault Archer v Loi Armstrong v TABLE OF CASES. VI A. PAOI Abbott V McDonald 580 Abbott V Moikleham 204 Abbott V Montreal i&; B. Ry. Co 350 Acheson v Morrison 482 i A range. .226, 544, 563 Benning & Malhiot 178 Benning v IMontreal Rubber Company 98 Benny et al v Shepstone. Beuoit V Tanguay 92 Bens(m & Ryan 128 Benton v Styles 107 Bergevin & Persilier 288 Bernesse & Madore 256 Bemier & Beauchemin . . 24, 130 Bernier & Beiiveau 24, 130 Bemier v Gaumond 560 Berrard v Barette etvir 372 Benard A Mathieu 368 Berria'i & McCorkill 664 Berry v Cowan etal 306, 315 Bevry v Dixon 411 Berry & May, 42, 413, 416, 418, 548 Berthelot v Guy etal 337 Berthelot v l^alonde 251 Bertrand v Beaudry ... . . 248 Bertrand v Pouliot 311 Bessener & DeBeaujeu .... 669 Bethune & Ciiapleau et al . . . 136 Bettersworth & Hough 27 Blouin V ] Bluteau v Boak V M Boisseau ^ Bonacina Bonnell v Bonnell v 1 Ex. C Bonner v 1 Booth V B Booth V Li Booth V Li Booth 1 Boston V Boston V Boswell &] Boswell V Boswell V Boswell & I QuebeJ Bottomley f Bouchard i Boucher v ] Boucher v Boucher v , Boucher etl Boucher v f Boucher v | Boucher v Boucher v I Bouchette Boudreau Boudreau . Boudreau TABLE OF CASES. XIX pxaE ,. 200 «. .. 667 . . 463 .. 476 .. 430 .. 431 95 ... 284 .. 139 ...440 .. 151 . 90 ...643 100,120 .. 25 416, 438 ... 161 .... 93 258, 268 563 ;... 94 677 ... 109 , 400, 412 . 644, 563 :.... 178 libber . . 98 *' .92 .. 128 ... 107 ... 288 .. 266 .24, 130 . 24, 130 .. 550 .... 372 .. 368 "... 664 .306, 315 .... 411 J, 416, ^ 418, 548 ... 337 .. 261 .. 248 311 .... 569 mtal... 136 h 27 PAOB Bickell & RiohArd 65 Binet exp 19 Biroleau & Lebel 441 Blackburn & Walker. . . .236, 429 Blackiston & Patton 306, 315 Blackiston v Rosa 88 Blaiu V Corp. of Qranby, 16, 5V.\ 513 Blais V Lainpscn ^' J, >0 Blais V Learmonth et al . . 3&7 Blake et al v Panel etal ?/19 Blanchard et al v Millar .... 546 Blanchete< ux v Charron 635 Blanckensee & Sliarpley, 415, 429, 544 Blouin V Langelier 23, 265 Bluteau v Gauthier 107 Boak V Mer. M. Ins. Co. 546, 581 Boisseau v Pilot . . . . 368 Bonacina v Bonacina 98, 99 Bonnell v Millar 451 Boniiell V Urumraondville Bk. Ex. Co 164 Bonner v Hamilton 457 Booth V Bastien etal .... 554 Booth V Lacroix , 329 Booth V Lawton 99 Booth T Montreal & B. Ry. Company 53, 78 Borthwick & Bryant et al, 173, 226 Boston V L'Eriger 113, 126 Boston V Taylor 368 BoBwell & Belfian 62 Boswell V Kilborn et al 582 Boswell V Lloyd et al, . . .^06, 132, 154, 289, 474 Boswell & The Mayor et al of Quebec 593 Bottomley & Lumley 422 Bouchard v Thivierge 91 Boucher v Barthe 103 Boucher v Beaudoin 386 Boucher v Bertrand 28 Boucher et vir v Brault et al . 317 Boucher t DessauUes . . . 562, 596 Boucher v Girard 107 Boucher v Latour et al 254 Boucher v Lemoine et al, 42, 250 Bouchette V Tach6 22 Boudreau & Locke et al, 438, 447 Boudreau & Lavender 192 Boudreau v Poutrfc 350 PAGE Boudreau t Richer 89 Boudreau v Suite 543 Bouttard v Nation 481 Bougie & Leduo 127 Boulanget & The Mayor, &o. of Montreal 121 Boiirassa v Broiuseau 407 Bourassa v Haws 439 Bourbonnais et al v Corp. of Soulanges 254 Bourbeau exp . ... 686 Bourgeois & Holland 317 Bourgoin v Malhiot 606 Bourgoin et al v The Montreal N. C. Ry. Company, 608, 609, 510 Bourgoin et al v The Montreal O. &0. Ry. Co.... 170,505 Boiisquet & Brown 271 Bousquet v Jodoin et al , . . . 48 Bouvier & Brush 343, 349 Bouvier & Reeves. .236, 557, 675 Bove V McDonald 286 Bowen «& Lee 250 Bowie & Kelly 65 Bowie V Murray 263 Boyd V Freer 413 Boyer exp 596 Boyer v Migneault . ... 309 Boyer v Sloane et al 337 Boyle V Arnold 130 Bradford v Henderson 118 Bradford v Wilton 562 Bradley & Blake .... 108, 110 Brady v Atcheson 202 Brahadi v Bergeron et al, 446, 447, 539 Brassard v Turgeon 423, 442 Brault V Bureau 157 Breakey & Carter 632 Brcault v Barbeau etal 126 Brehaut v Longpr<$ etal 326 Bressler & Bell 47 Berwster et al v Chapman, 681, 583 Brewster et al v Childs etal. . 240 Brewster et al v Starnes et al. 569 Bri'jcham & McDonald et al.. 99 Brisson & McQueen ...70, 81, 407 Bristow & RoUand 562 Brock et al v Th^berge 79 Brodie et ux V Cowan 197 Brooks et al v Dallimore ... 654 XX TABLE OF CA8E8. i^i ''II i::i :n;'!!; PAOI Brooks etalv Whitney, 242, 248, 316 BroMard A Bertrand . . 432 BrniBard & Tison et al .. .. 321 Broaaeau & Alves 64 Bruwn v Carter 180 Brown V Dow 123 Brown & Ougy 76 Brown v Imperial Fire Ins. Company 206 Brown v Janes 131 Brown et cU v Lionais 560 Brown v Smith 198 Brown v The Cur^ &c. of Montreal 14fi, 506 Brown v The Mayor &c. of Montreal 583 Brown v Wallace 202, 265 Brown V Wood 249 Browning v Yule 421 Bruckert v Moher 394 Bruneau v Charlebois 330 Bruiieau v Qagnon 377 Bruneau v Miller 403 Bruneau v Provost et al 503 Bruneau v Robert 256 Biiinelle v Chagnon 62 Bruuelle v Sampson 327 Brunet v Brunet 139 Brunet v Lee . . 110 Brush V Stephens et vir 174 Brusli V Wilson. ... 104, 344, 549 Bullitt et al v Shaw et al ... 131 Bunting & Hibbard 580 Bureau & Bivnk ..f B. N. A . . 43 Bureau v Normand, 498, 499, 502, 503 Biirk exp 512 Burland v Larocque 230 Bum V Fontaina 115 Burns v Giroux 232 Burroughs & Bourget 126 Burroughs & Divers 384 Burroughs v Molson et al, 147, 149 Burrous^'hs & Simpson ..... 554 Bury et al v Shepstone et al . 228 Burton v Young .... 179 Bussi^re & Faucher 60 ; Buteau v Duchene .... 158 , Butters et al v Allan et al ... 220 ; Byrne et al v Fitzsimmons . . 167 i O. FAOB Oadieux vCanad* Mutual Fire Ins. Co 327 Caldwell v Moffatt 51 Calvin et al v Bertrand . . d'J, 100 Cameron t Brega 413 Campbell v Atkins et al 430 Campbell el al v Beattie .... 401 Campbell v Peltier 112 Cannon v Huot et al 226 Carden et al v Findlay 185 (.'arden v Lennen 1 21 Carley v Hutt 241 4-^7 327 036 633 173 441 558 586 391 564 238 . 250 . 63 . 91 . 552 . 545 PAOI Chorrier v TituB 258 Chevalier v Cuvillier et al . . 282 Cht'vreHls v Syndica de Hte. Htthnt, 76, 126 Childer house v Bryson etal. . 22 Chiiiio V Oervais 108 Cholutte V B^riaii 163 ChtKiuet V Hart 404 Chuuinard v Dettien 278 Chretien v McLane 412 Church exp 695 Clairinunt et vir v Dickson . . 463 Clapin & Nagle 383 Clark et al v Clark dux.. 87, 249 Clark V Johnston 126 Clark V McOrath 204 Clark V Ritchey 37 Claxton et al v McLean et al . 34 Clement v Blouin 271 Clement v llamcl 04 Clement v Moore 437 Clemow et al & McLaren et al 47 Clooney v Nett •. 42 Close V Closo 4(J3 Close V Dixon 173 Clouet V Bragg 61 Cloutier v Cloutier 357 Cloutier v Lapierre 36 Coates et al & Glen Brick Co . 136 Coates & Bank of Montreal . 406 Cochrane et al v Bourne et al. 132 Coleman v Fairbaim 160 Colette V Dansereau 266 Collins & Hunter 420 Colson V Ash 633 Coltman t Hamilton 108 Comte & Arohambault 479 Comte V Oarceau 205 Connolly v Bonneville . . 48 Connolly v Brannen 34 Constable v Gilbert etal 451 Contant v Lamontagne 49 Converse & Clark 675 Convey & Smiley 371 Cook v Miller 240 Coplor^d et alv Cauohon et al, 88, 234 Copps V Copps 113 Corbeil & Dumouchel . . 115, 119 Cornell v Merrill 412 Corse V Taylor 312 C6t6 exp 517 Cotrf V Jacob . . 300 C6ii V Miuui etal 230 C«>t^ V Kiome 21 Couillard v Kschnmbault ... 113 Couillard v Lumieux 171 Coulter exp 617 Coiipal V Honneau 22 Courohono v (ioneroux ... 317 Coumoyer v Plante etal .... 263 Coumoyer v Tourquin 48 Coumoyer v Tranchemon- tagne et al 1 37 Courtney v Bowie etal 177 Courville & Lovar. 69, 237 Coutlee &, Rose 663 Cox V Patton 178 Craig V Corp. of Granby . . 26 Craig V Corp. of Leeds 26 Crawford et al v Fyson 403 Crebassa & Ethier 28, 69 Crehassa fxp 517 Crebassa & Fourqiiin 321 Crehen & Hagarty 427, 441 Cremazie & Catichon 24 Crevier v Crovier 404 Cnimp v Middleniass 107 Cumming v Dickie 169 Cumming exp 594 Cummings v Quintal 114 Cunningham et al & Ferrie et al.... 94 Currier & Lafrance 61 Cushing & Hunter 263 Cuthbert v Barrett 408 Cutler exp 517 Cutting & Jordan . . 234, 244 D. Daigle & Kimball 575 Daly et al v Cunningham ... 199 Dalton v Doran 235, 309 D' Amour et al & Bourdon ... 72 Danis & Taillefer 107 Danjou & Marquis 514 Dansereau & Archambault et al 56 Dansereau & Ccllette 64 Dansereau & Girard 317 Dansereau & Privd , .... 255 Daoust v Auniais 524 Daoust v Deschamps 89 Darche et al & Dubuc 250 XXII TABLE OF CAHBH. PAOI Darling y Henderaon t67 Darling et al v St Julien tt al 128 Darling & Teinpleton 677 David & MoDonald et al 173 Davidson v Cameron 08 Davidion v Moffatt 204 Davies exn 500 DaviuR T McGuire 128 Davis & Beaudry 201 DaviH & Jacob! 100 Dnvia & Kinipton et al. . . 35, 30 DnwBon V Belle 561 Dawson v DeafoawB 77, 554 DawBon eicp 386 DawBon &, Ogden 401 Day V Delasse 237 DayvHarte 152 Dnun V Jackson 54 Dorion v Dagenais . . 2K8 Dorion et ul v Drumniond . . . 321 Dorion V Dorion 63 Dorion v Orant 384 Dorion v Hyde et al 574 Dorion v Poulin 463, 523 Dorly & Ryarson 234, 317 Dorval v Chevalier . . .... 623 Dorval & L'Esperance 361 Dorwin v Evans 180 Doucet V St. Amand 268 Douglas V Douglas 369 Douglas et al v Ritchie etal. . 159 Doutro et al v Bradley 275 Doutre v Gagnier 505 Doutre v Gosselin 252, 312 Doutre v McGinnis, 40, 417, 410 Doutre v Montreal & B. R'y ('ompany 86 Doyle v ClomejAt 44 Doyle V Mclvcr 346 Do li- r: .■> V \.L.ean 390 Doyoii V Coro. of St. Joseph. 483 Drapeau & Frazer 373 Drummond v Comte 512 Dube v Mazurette 244 Dube V Miville 108 Dube V Proulx 125 Dubeau v Dubeau ... 402 Dubeau et al v Fabrique de Deschambault 117 Dubenu v Robertson 440 Eastern Pac Eastman! Eascon vl Edmonstl Election | Rats Ellice & j Elliott V I Elliott itl Elliott vf Ellis V ' TAHI.K OF TARKH. XXItl rA(ii 23, 141 .. 80 ... flO 586 ... 273 ... 257 nant 126, 288 .... 193 .... WiO 358, SCO iph !iV ..... 109 .617, 620 101 .... 646 .. 308 .. 604 2K8 nd. .. 321 .. 03 .... 384 674 ..463, 623 . 234, 317 623 301 .■... ■ 180 268 ....... 309 ietal.. 169 . . 276 ■ . 606 ;"."262, 312 40, 417, 419 B. IVy 86 44 . 346 '■.... 390 Joseph. 483 ..... 373 '".... 512 .... 244 .... 108 \2b W 462 )rique de ... 117 i\ 440 PAOI DiihoU ^< itir V Oauthier .. VM DiihoiH V IjAHiothu et at \'M Diihoia V iSt4>ll 126 Dnhortl it Hoivin 2A4 Diihiio A ChAmpngne , 657 Dtichenay & Vioiine 305 Dtioor III <' Itoiirgeoia 112 DiMovoir & Turc2 Gregorj' & Ireland . . 417 Grenier & Grenier. Griffith & McGovern . . 437 Grinton & Montreal Ocean S. S. Company 67, 87 Groom v Boucher 68 Groulx V Corp. of St. Lau- rent 662 Guay V Bailey 392 Guenet v Blanchot 368 Guerin v Mathe 23, 152 Guevremont v Wilbrenner . . 113 Giigy & Brown, 50, 228, 260, 579 Gugy v Donahue .... 174 Gugy v Duchesnay 110 Gugy v Ferguson . . . . .Ill, 429 Gugy V Gugy 563 Gugy V Maguire 180 Guilfoyl v Tate et al 300 Guilmette & Larochelle 483 Guy & Clarkson 358 Guy & Goudreau 463 Guyon v Donahue 83 Guyon v Lionais. . . . 169, 160 H. Haggarty & Morris 569 Hainault v Lynch.. 83 Halcro v Delesdemiers.. 110, 121 Hall V. Brighani 144 Hall V Douglass 360 Hall v St. Julien 294 Hall V Zemichon 418 Hamel et al v Cote 418 PAOB Hamel V Laliberte 237 Hamilton & Constantineau . . . 457 Hannis v Turcotto 297 Hannower V Wilkie 96 Hardie et al v Trottier et al. . 37 Hardy V Scott 248 Harrington v McOull 33 Hart V Barlow 162 HartvBum 123 Hart ejr;; 490 Hart V Hart 148 Hart «< ai V Philips.. Ill Hart V Rose 127 Harte e< ai V Alio 272 Harte et al v Northern Ins. Co 118, 206 Hartshorn et al v Scott 92 Harvey & Deziel 567 Harvey & Philips 189 Hiisset & Mulcahy 411, 413 Hasty & Morland 192 Hatte vCurrie 418 Hay den v Fitzsimmons 70 Hayes & Kelly 439 Heal ey ex/) 517 Healey et al v Mayor, &c. ... 247 Heardsmaii & Harrowsmith. . . 98 Hearle& Date 454 Hearle v Rhind 447 Hearne & Malony 43, 61, 63 Hearn v Lampson. ... 563, 564 Heavysidc v Mann 162 Hubert & Fabrique «$:c., de St. Jean 251, 260 Hebert & Quesnel .... 21 Helliwell & Mullin 48 Henderson V Ennis... . 46, 416 Henderson v Lamoureux. . . . 431 Henderson v Lcmieux 394 Henderson v Loranger .503 Henderson v Tl>onip»on 257 Heney & Holland 556, 568 Henry v Siniard 503 Her Majesty's I'rincipal Sec. of State V Edmonston et al. . 204 Herriman et ux v Taylor. ... 171 Heugh et al & Ross etal 440 Heyneman & Smith 426 Hibbard & Barsalou et al. . . . 505 HigginsvBell 400 Higgins et Rodier v Joly 468 Rodier v MaoAvoy 400 Rogeraon v Bigin 249 Rolland v Guilbault 400 Rolland t Lariviere 236 Rolland v Reuger 314 Romaine v Dugal 117 Rose exp 603 Ross et al v fiums 410 Ross & Mason 308 Ross T Palagrane 240 Rosa V Scott 30, 649, 577 Ross V Wyse 84 Rouleau & Baoquet . . 161 Rouleau exp 697 Rousseau t Hughes . . 34, 37 Rousseau v Trudel et al ... 100 Routier t Robitaille 180 Routh etalv Dougall 74 Routh V Maopherson 452, 453 Routh V Maguire ..111, 126, 312 Roy etalv Beaudin 416 Roy V Beaudry 400 Roy V Bergeron 686 Roy vBlaydon.... 23, 43 Roy V Champlain and St. Lawrence Railway 635 Roy exp 62, 696, 698 Roy etalv Gauthier 127 Roy V Thibault 602 Russell etalv Field 106 Russell V Foumier ... 368 Russell etalv Gravelay 663 Ruston exp & Quebec Build- ing Society 488 Ryan v Chappers 76 Ryan v Devlin 258 Ryan v Malo 124 RyanvWardetaf 233 Ryland t Delisle :i87 Ryland v Ogilvie 100 Ryland V Routh 272 a Statutes : C. S.L. C. c. 2 3 29, 30 V. 0.26 9 31V. 31 V. 31 V. 31 V. 31 V. 31 V. 32 V. 32 V. 32 V. 32 V. 32 V. 32 V. 32 V. 32 V. 33 V. 33 V. %3V. i ' V. ■oHV. 33 V. 33 V. 34 V. 34 V. '■■4 V. HV. 34 V. 34 V. 34 V. 34 V. 34 V. 34 V. 34 V. 34 V. 34 V. 35 V. 35 V. 35 V. 35 V. 35 V. 35 V. 36 V. 35 V. 35 V. 35 V. 35 V. 36 V. 36 V. 36 V. 36 V. 36 V. 36 V. 36 V. PAOE c. 7, a. 1,«24 .. 280 c. 7, s. 2, I 26. . . . 18 c. 13, 8.4 318 c. 20, Bs. 1-3 . . 296 c. 24, s. 41 64 c. 25, 8. 50 64 0. 11,8.33 516 c. 20, s. 1 246 c. 20, s. 2 247 c. 21,8. 1 627 c. 22, s. 2 207 c. 26 603 c. 30,8. 4 635 c. 37,8. 4 296 c. 13, 8. 1 209 c. 13, 88.2,3 213 c. 16 .. 471 c. 17 41 c. 17, s. 1 102 c. 17,8. 2 319 c. 18, 8. 1 166 c. 4,8.1 165 c. 4,88.2, 3 176 c. 4,8. 4 243 c. 4, 8. 6 267 o. 4,8. 6 303 0. 4,8. 7 349 c. 4,8. 8 360 c. 4, 8.9 522 c. 4, 8. 10 207 c. 4, 8. 11 537 0. 4, 8. 12 542 0.4,8.13 547 0. 4,8. 14 581 c. 6, s. 6 460 0. 6, 8. 1 64 0. 6,8. 2 57 c. 6, 8. 6 ,. 98 0. 6, SB. 7, 8 166 c. «, 8. 9 174 0. 6, as. 10, 11, 12. 217 c. 6,8. 13 223 0. 6,8. 14 278 0. 6,8. 15 299 0. 6, ss. 16, 17 304 0.6,8.18 436 0. 6,8. 19 486 0. 6, s. 20 489 0. 6, B. 21 498 0. 6, s. 22 606 0. 6, s. 23 627 0. 6,8. 24 533 36V 36 V 36 V 35 V 35 V 35 V, »{ V. 36 V. 36 V. 36 V. 36 V. 36 V. 36 V. 36 V. 36 V. 37 V. 37 V. 38 V. 38 V. 38 V. 39 V. 40 V., 40 V. , 41 v., 41 V. , 41 V. 41 V. 41 V. 41V. Saltry exp. . Salvas V Gu Sarault v . Saunderso Saunderso Sauvageau Saxton vS. Scantlion v Scatcherd Soheffer et Schofield V Sohofield V Scott et al' Scott et al Scott V Hal Scott V Ph Scott et al Scullion v] Seaton v Bd Secretan v Senecal v Senecal t ] TAHLE OF CA8EH. XXXV 267 637 542 547 581 460 54 57 , 98 , 166 . 174 I. 217 . 223 ,. 278 .. 299 .. 304 .. 436 .. 486 .. 489 ... 498 ... 506 ... 627 ... 53-3 38 V. 0. 36 V. 0. 36 V. 0. 35 V. 0. 35 V. 36 V. »» V. 36 V. 36 V. 36 V. 36 V. 36 V. 36 V. 36 V. 36 V. 37 V. 37 V. 38 V. 38 V. 38 V. 39 V. 25. 26. 27. 31. 32. «, «, 0, 0, 6, 7 10,8.7 10, 8. 8 c. 12, (repealed), c. 14, 8. 3 14, 8. 6 17 18 19, 8. 2 20, 8. 1 6 88. 1-3 11 9, 8. 1 ... 10, 88. 1-3... 12 33,8.24 2 5 0.9 40 V.o. 13,8 40 V. c. 13, 8 41V 41 41 41 41 41 V. c. V. c. V. c. V. c. V.o. . 826 ' . 287 . 827 . 622 . (m . 616 . 244 26!) . 267 . 460 . 388 . 617 . 617 . 297 . 32 . 267 . 688 . 68 . 246 . 331 . 602 . 243 . 244 . 627 . 622 . 457 . 498 . 507 341 pAcand ft nl Hichelieu Navig. FAOI . 36 11 . 12, 8. 1 13, 8. 1 14 15 Saltryexp 595 Salras v Guevremunt 234 Sarault v Ellice 125 Saunderson exp . . 617 Saunderson v Roy 338 Sauvageau V Gauthier 578 Saxton V Sheppard 311 Scantlion v Barthe 85 Scatcherd v Allan 270, 272 Scheffer etuxv Fauteux. ... 119 Schofield V Leblond 226 Schofield vRodden 309 Scott et aly Allain 300 Scott et al V Austin 98 Scott V Hardy et vir 43 Scott V Phoenix Assurance Cu. 559, 632 Scott et al V Scott et al 186 Scullion V Perry etal 110 Seaton v Boston 172 Secretan v Foote et al 105 Seneoal v Chenevert 34 Seneoal V Lemoine 48 Seneoal v Seneoal Co 226 Senecal v Vienne 337, 469 Somirior v Lngarde 468 Sevigny v Provenoher 636 SewiiU V Bonrke 371 Sewull V Viinuiivar 430 Seymour v Honier e< a/ 140 Seymour et al v Wright etal.. 162 Shftq)lo8 V Dumais 82 Sharpies et al v Basa 439, 446 Shaw V Bourget 332 Shaw V McConnell 436, 438 Shaw «t at v Meikleham 543 Shelton v Kerns etal 308 Sheppard v Buchanan 271 Sheppard v Dawson 235 Sheppard v Morin. 263, 266 Sheppard v Tonnanoour 70 Sheridan et al v Bourne 116 Shortis ti- Normand...376,393, 644 Shuter v Ouytn 169 Sicotte & Reeves 164 Simard v Corp. of Montmor- ency 513 Simard v Fraser 566 Simard v Mathurin 44 I Simard v Perrault 21 Simard v Townsend 663, 579 I Simard v Tuttle 128 Simon v Bougie . . 194 Simoneau v Campbell 82 Simpson et al v Bowie 170 Sinclair ,et al v Ferguson 452 Sinclair et al v McLean et al,.. 241 Skead v McDonnell 194 Slack exp & Bellemare 264 Slack V Short 256 Smith V Bourne 461 Smith V Donovan 61 Smith V Egan etal 553 Smith vNoad 257 Smith V O'Farrell 191, 308 Smith V Sexton 506 SouUere v Heron 255 Soupras v Boudreau 292 Spelman & Robidoux 549 Spelman ex/). 601 Sproul V CorriveMi 101 St. Denis v Belanger 63 1 St. Denia v Grenier etvi/r 178 XXXVI TAHLK or CA8E8. PAUB 8t. Jacques v Parent 254 St. Jean v Hlosu 125 St. Jeninios v Do Montigny. . Ifl8 8t. John V Delialu IIU St. Louis f'x» 504 Ste Mario v Brown luiwU . . . 13(i St. Ongo V Laricholi^re 404 Stack V King 184 Stalker V Hammond lUU Stanfield v Massey 102 Stanfield v Htanfield 470 Starke V Massey 100 Stephens e< a/ V BouthiUier... 20 Stephens t Hopkins 120 Stephens et al v Tidmarsh. . . 100 Sterling et al v Darling. 300 Sternberg et al v Dresser 322 Stevenson et al v Boston :t42 Stevenson et al v McOwan . . 410 Stevenson e^ a^v Robertson... 414 Stewart v Hamel etal 430 Stewart v Langloy etal 483 Stiguy V Stiguy 260 Stilson V Anderson 22 Stirling etalv Darling 300 Stoppleben V Hull 610 btrother v Torrance 76 Stuart V Ledoux 453 Stuart V Scott 655 Sullivan v Smith .552 Sutherland & Hoathcote et al. 08 Sylvester v Manseau 222 Syme et aly Howard 48, 80 Symes et vir v Voligny 32 Tach6 V Levasseur 220 Talbot V Donnelly 413 Talbot V Limeau 10 Tanguay v Ducrow 03 Taplin v Beckett etal 104 Tardif v Gingras 387 Tarratt et al. v Barber et al. . 101 Tarratt et al. v Foley et al. .,157 180 Tass^ V Laberge 230 Tate et al. v James et a;...201 248 Tato et al. v McNivin 230 Taylor v Mullin 268 Taylor v Molleur 555 Taylor v Senecal et al 00 Taylor v The Queen 581 Terrien etrp.. .., 601 rAOK Torrill v Huldane d al. 140, 238, 240 Torroux v Diipont 304 Terroux v Oarreau etal 318 Terroux v Hart etal. 204 Tossior v Logault 422 Tetreau v Bouvier. .' '2M Tdtu V Chinio . 370 Tfituv Martin 41 TCtu et al. V Pollotior 413 Thayer v Wilscam 121 Th« Attonioy-deneral v Ellico 645 The Bank of B. North Ame- rica V ('uvillier et al 173 The Bank of Montreal v Alain 406 The Bank of Montreal v Brown 408 The Bank of Upjior Canada v Turcotto 123 The Beacon Fire & Life Ins. Co. V Whvddon 88 The Can. Bank of Coiamerce V Brown . . 33, 427, 420, 548 The Can. Bank of Commerce v Papineau 02 The Can. Building 8o. v Lafre- naye 148 The Can. Copper Co. v Shaw. 101 The Can. Lead Mining Co. v Wa\keretal 73 The Can. Navigation Co. v McConkey 274 The Can. Paper Co. et al. v Cary 450 The Can. Tanning Ex. Co. v Foley 101, 103, 180 The Carillon & G. Ry. Co. v Burch 70 The Champlain & Ht. Law. Ry. Co. V Russell 51 The City Bank v Coles 177 The City Bank v Hunter, 440, 440 The City Bank v Laurin 530 The City Bank v Montreal Bank 114 The City Bank v Pemborton etal 38 The City of Montreal v Dev- lin The Columbia Ins. Co. v Hen- derson 08 The Corp. Co. Drnnimond v Corp. St. G\.tllaume,514, 522 The Cori) South The Corp. loans The Corp. derson The Corp. The Corp. S The Corp. ' The Corp. Bourg A Gne The Currf oi R. C. I The Easten vMorri The Eastenj V Pacau The Exchani et al. . . The Fabriqii The Fraser I et al. . . TheGlon Bi The Glen Br The Globe It Co.. .1 The Grand Godboui The Interco] V Shaw The Mayor, & Benni The Mayor, 1 & Bisoni The Mayor, & Drun The Mayor, The Mayor, u & Mansj The Mayor, & Kansc The Mayor, & VVilso] The Mayor, i ArrastroJ The Mayor, i Newton J The Mechan^ The Moisie 402, TADLK OF CASEH. XXXVll PAOI Tho Cori>. Co. Dniuimond v South Eaitem Ry. Co.. 334 The Corp. St. Jurm Bt«. d'Or- loanH V Lachiuice tl8 Tho Corp. iSt. Martine v Hen- derson 82 Tho Corp. St. Pliilippe erp. . . 3U2 The Corp.St. Philippe vLuMier 663 The Corp. Terrebonne v Valin 64 The Corp. of the Town or Bourg of William Henry & QueTreniont 633 Tho Currf of Varennes ei al v R. 0. Bishop of Montreal 672 The Eastern Townships' Bank V Morrill 84 The Eastern Townships' Bank vPacand..209, 378, 386, 644 The Exchange Bank v Napper etal 67, 87 The Fabrique of Montreal erp 696 The Eraser Institute v Moore etal 462 The Glen Brick Co. & Welch The Glen Brick Co. & Walker 666 The Globe Ins. Co. v Sun Ins. Co 98 The Grand Trunk Ry. Co. & Godbout 643 The Intercolonial Coal Co. V Shaw 268 The Mayor, &o. , of Montreal & Benny etal 512 The Mayor, Ac, of Montreal & Bisonnette 390 The Mayor, &c. , of Montreal & Drummond. ...... 671 The Mayor, Ac, of Montreal & Hubert et al 583 The Mayor, &c., of Montreal & Manson 116 The Mayor, &o., of Montreal & Hanson 240 The Mayor, &c., of Montreal & Wilson 278 The Mayor, &o., of Sorel and Armstrong 613 The Mayor, «&c., of Sorel and Newton 67 The Mechanics Bank v Scale. 122 Tho Moisie Iron Co. v. Oslen 402, 406, 412, 417, 422, 428 PAOI The Molson's Bank v Camp- bell 428 The Molson's Bank v Con- verse 166 The Molson's Bank v Falkner etal 161 The Montreal Ass . ( 'o. v Mc- Oillivray 109, 227, 676 The Montreal Ass. Co. v. Mao- phemon 83 The National Ins. Co. v Car- tier 34 The Newark Pat. Leather Co. V Wolff 101 The New (!it; Gas Co. v Mc- Donnell 239 The Niagara, &c., Ins. Co. v Mullin 98, 100 The Northern Ry. Co. v Pat- ton 0^ 660 The Ontario Bank v Duches- nay 644 The Patent Guano Co. re & Maule etal 500 Tho Prin. Of. of Artillery v Taylor e ters and are of a general and permanent character, whether t'ley relate to Commercial Cases or to those of any other nature ; but they shall not include in the said Code, any of the Laws relating to the Seigniorial or Feudal Tenure. Ibid, s. 4. tl. The said Commissioners shall reduce into another Code, to be called the Code of Civil Procedure of Loiver Canada, those provisions of the Laws of Lower Canada which relate to Procedure in Civil Matters and Cases, and are of a general an'' permanent character. Ibid, s. 5. 6. In framing the said Codes, the said Commissioners shall embody therein such provisions only as they hold to be then actually in force, and they shall give the authorities on which they believe them to be so ; they may suggest such amendments as they think desirable, but shall state such amendments separately and distinctly, with the reasons on which they are founded. Ibid, s. 6. 7. The said Codes shall be framed upon the same general plan, and shall contain, as nearly as may be found conveni- ent, the like amount of detail upon each subject, as the French Codes known as the Code Civil, the Code de Com- merce, t,nd the Code de Procedure Civile. Ibid, s. 7. 8. The Commissioners shall, from time to time, report to the Governor their proceedings and the progress of the work entrusted to them, and shall, in all matters not expressly provided for by this Act, be guided by the instructions they receive from the Governor ; and whenever they think any section or division of the work suffic'rfntly advanced for the purpose, they shall cause the same to be printed, and trans- mit a sufficient number of printed copies thereof with their Report to the Governor : CODIFTCATION OF THE LAWS. 2. And if the Governor in Council thinks it advibable, he shall cause one or more of such copies to be transmitted to each of the Judges of the Court of Queen's Bench and Superior Court for Lower Canada, with a request that he will return the same, with his remarks thereon, by a day to be named in the letter containing such request. 20 V. c. 43, s. 8. 9. Each of the said Judges shall examine the portion of the Commissioners' work so submitted to him, and return the same by the day named as aforesaid, with his remarks, and he shall more especially examine carefully that part of the work purporting to state the Law then in force, and re- port distinctly his opinion, whether the Law as it then stands is correctly stated therein, and in what paragraph or paragraphs (if any) it is incorrectly stated, with his reasons and authorities, and a draft of the amendments which ought in his opinion to be made in such paragraph or paragraphs, in order that the Law may be correctly stated therein. Ibid, s. 9. 10. The Judges or any of them may, in their Report on any portion of the said work referred to them, make sug- gestions for the amendment of the Law contained in such portion, with the reasons on which such suggestions are founded. Ihid, a. 10. 11. At any time when any portion of the said work is before the Judges for their report, they or any of them may confer with the Commissioners or any of them, touching the same ; and the Commissioners shall, in any such conference, give all such information and explanation as it is in their power to alibrd and as the judges may require, relative to any statement of the Law as it then stands, or any sugges- tion for its amendment, which the Commissioners have made in such portion of their work as aforesaid. Ihid, s. 11. 19. T the Comi work as sideratio: any of it named fo from beir hereinaft( 13. Th r .0 with ments of it right to considerin the Judgei distinguisl 14. Wh( with such thereof an( Judges, i that such and if it is completed the Civil pleted and 2. Eith€ Code, but which ma for its coi the other, until finar" communic possible ments so be passed s. 14. CODIFICATION OF THE LAWS. 7 19. The reports of the Judges »nall be communicated to the Commissioners, who shall make such corrections in their work as they find advisable after having taken into con- sideration the reports and suggestions of the Judges ; but if any of the Judges do not send in their reports by the day named for that purpose, this shall not prevent the Codes from being completed and submitted to the Legislature as hereinafter provided. Ibid, s. 12. 13. The Commissioners shall, from time to time, incorpo- r .'J with tlie proper portions of the said Codes, such amend- ments of the actual law as the Governor in Council thinks it right to recommend for adoption by the Legislature, after considering the Reports of the Commissioners, and those of the Judges, if any ; but such amendments shall be carefully distinguished from the actual law. 20 V. c. 43, s. 13. 14. When the said Codes, or either of them, are completed, with such amendments as last mentioned, printed copies thereof and of the Reports of the Commissioners, and of the Judges, if any, shall be laid before the Legislature, in order that such Code or Codes may be made Law by enactment ; and if it is found advisable that either of the said Codes be completed and submitted to the Legislature before the other, the Civil Code of Lower Canada shall be the first so com- pleted and submitted : 2. Either House may propose any amendments to either Code, but such amendments shall be proposed by resolutions which may be passed by one House and sent to the other for its concurrence, and shall be subject to amendment by the other, and to be othei'wiso dealt with as a Bill might be, until finally agreed to by both Houses, and shall then be communicated to the Commissioners, who shall, with all possible despatch, incorporate the substance of the amend- ments so agreed to, with the proper Code, which may then be passed as a Bill, at the same or any future session. Ibid, 8. 14. 8 CODIFICATION OF THB LAWS. Iff. The said Codon and the Reports of the Commission- erH shall be framed and made in the French and English languages, and the two texts, when printed, shall stand side by side. Ibid, s. 15. 16. Any two of the Commissioners may make any Report or do any other thing which the Oommissioners are hereby empowered to do ; saving the right of the third Commis- sioner, if so advised, to make a separate report or enter his dissent and the reasons thereof in the minutes of the pro- ceedings of the Commission. Ibid, s. 16. IT. The Commissioners shall be remunerated for their services at such rate as the Governor in Council shall deter- mine, not exceeding sixteen dollars per diem to each Com- missioner while employed in tlie performance of his duties, nor five thousand dollars per annum to any Commissioner ; and the said Secretaries shall be remunerated for their ser- vices at such rate not exceeding three thousand four hun- dred dollars per annum, as the Governor in Council shall determine, but the said Secretaries shall give their whole time to the duties of their office. Ibid, s. 17. 18. If any Judge of the Court of Queen's Bench or Supe- rior Court for Lower Canada is appointed such Commis- sioner as aforesaid, he shall, while acting as such, receive no remuneration as Commissioner except the excess (if any) of the remuneration of a Commissioner over his salary as Judge; and any Assistant Judge to be appointed to supply the place of any such Judge while acting as Commissioner, shall re- ceive a salary to be fixed by the Governor in Council, but not to exceed the highest salary of a Puisne Judge of the Court to which he is appointed ; so that the charge uj on the Province shall not be increased by the appointment of a Judge or Judges as Commissioners. 20 Y. c. 43, s. 18. 19. The Commissioners shall hold their meetings at such place as shall be appointed by the Governor, and the Se(^e- CODIFICATION OF THE LAWS. 9 taricR shall keep minutes of the procoovith the amendments NUggested by the said Commissioners, has, by command of the Govemor, been laid before the Leg- islature in order that the said Code, with such amendments as may Ik) adopted by the Legislature, may be made law by enactment ; And whereas such of the amendments suggested by the Commissioners and such other amendments as are mentioned in the resolutions contained in the Schedule here* unto annexed, have been finally agreed to by both Houses : Therefore Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows : I 1. The printed roll attested aa that of the said Code of Civil Procedure of Lower Canada, under the signature of His Excellency the Governor General, that of the Clerk of the Legislative Council, and that of the Clerk of the Legis- lative Assembly, and deposited in the office of the Clerk of the Legislative Council, shall be held to be the original thereof reported by the Commissioners as containing the existing law without amendment ; but the marginal notes, and the references to existing laws or authorities at the foot of the several articles of the said Code, shall form no part thereof, and shall be held to have been inserted for convenience of reference only, and may be omitted or corrected, 9. The Commissioners under the Act mentioned in the preamble of this Act, shall incorporate the amendments mentioned in the resolutions contained in the schedule to this Act, with the said Code of Civil Procedure as contained in the roll aforesaid, adapting their form and language (when necessary) to those of the said Code, but without changing their effect, inserting them in their proper places, and strik- ing out of the said Code any part thereof inconsistent with the said amendments. CODIFICATION OK THE LAWS. 11 5. Thfl Qovornor may alHo Holoct any ActH and parts of Acts, paHscd during the prcHunt HuiMion, which ho may deem it adviHahio to be incorporated with thu naid Code, and may cause them to be so incorporated by thu said Conmiission- ers.in the manner hereinbefore prescribed with respect to the amendments above mentioned, striking out of the Code or amendments any part thereof inconsistent with the Acts or parts of Acts incorporated therewith. 4. The Commissioners may alter the numbe ing of the Titles and Articles of the said Code or their order if need be, and make the necessary changes in any reference from one part of the Code to another, and may con-ect any misprint or error whether of commission or omission, or any contra- diction or ambiguity, in the original Roll, but without changing its effect. tl. So soon as the said work of incorporation and correct- ion shall have been completed, the said Commissioners shall cause the Code to be reprinted as amended and corrected, carefully distinguishing in such reprint the substantive amendments and additions made in or to the original Roll, and shall submit the same to the Governor, who may cause a correct printed Roll thereof, attested under his signature and countersigned by the Provincial Secretary, or one of the Assistant Provincial Secretaries, to be deposited in the office of the Clerk of the Legislative Council, which Roll shall be held to be the original thereof; any such marginal notes or references thereon as are mentioned in section one, being held to form no part thereof, but to be inserted for conveni- ence of reference only. 6. The Governor in Council may, after such deposit of the Roll last mentioned, declare by Proclamation the day on, from and after which the said Code as contained in the said Roll shall come into force and have effect as law, by the designation of "The Code of Civil Procedure of Lower / ■ 12 CODIFICATION OF THE LAWS. Canada," and upon, from and after such day the said Code shall be in force accordingly. 7. The laws relating to the distribution of the printed copies of the Statutes shall not apply to the said Code, which shall be distributed in such numbers and to such pei'sons only as the Governor in Council may direct. 8. This Act and the proclamation mentioned in section six shall be printed with the Copies of the said Code printed for distribution as aforesaid. 9. So much of the Act cited in the preamble as may be inconsistent with this Act is hereby repealed. \ Province of Canada. J. MICHEL. VICTORIA, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, &c., &c., &c. ■'' To all to whom these presents shall come, or whom the same may in any wise concern — Greeting : Geo. Et. Cartier, VT7HEREAS in and by a certain Act of the Att-GerU. » * Legislature of the Province of Canada, passed in the session thereof held in the twenty-ninth and thirtieth years of Our Reign, intituled : " An Act respecting the Code of Civil Procedure of Lower Canada," it is amongst other things in effect enacted that the printed roll attested as that of the said Code of Civil Procedure of Lower Canada, under the signature of His Excellency the Governor General, that of the Clerk of the Legii:>!'itive Council, and that of the Clerk of the Legislative Assembly, and deposited in the office of the Clerk of the Legisla- tive Council, shall be held to be the original thereof reported by the Commissioners as containing the existing Law without amend- ment ; but the marginal notes, and the references to existing laws or authorities at the foot of the several articles of the said Code, shall form no part thereof, and shall be held tc have been inserted for convenience of reference only, and may be omitted or cor- rected ; that the Commissioners appointed under the second Chapter of the Consolidated Statutes for Lower Canada, to codify the Laws of that Division of the Province in civil matters shall incorporate the amendments mentioned in the resolutions con- tained in the Schedule to that Act with the said Code of Civil Procedure, as contained in the roll aforesaid, adapting their form and language (when necessary) to those of the said Code, but without changing their effect, inserting them in their proper places, and striking out of the said Code any part thereof inconsistent .-•*^. 14 PROCLAMATION. with the said atnendmentii ; that the Oovernor may also select any Acts and parts of Acts passed during that session, which he may deem it advisable to be incorporated with the said Code, and may cause them to be so incorporated by the said Commissioners, in the manner hereinbefore prescribed with respect to the amend- ments above mentioned, striking out of the Code or amendments any part thereof inconsistent with the Acts or parts of Acts in- corporated therewith ; that the Commissioners may alter the numbering of the ..'itles and Articles of the said Code or their order, if need be, and make the necessary changes in any reference from one part of the Code to another and may correct any mis- print or error whether of commissiou or omission, or any contra- diction or ambiguity in the original roll, but without changing its effect ; that so soon as the said work of incorporation and correc- tion shall have been completed, the said Commissioners shall cause the Code to be reprinted as amended and corrected, carefully dis- tinguishing in such reprint the substantive amendments and addi- tions made in or to the original Roll, and shall submit the same to the Governor, who may cause a correct printed Roll thereof, attested under his signature and countersigned by the Provincial Secretary or one of the Assistant Provincial Secretaries to be de- posited in the office of the Clerk of the Legislative Council, which Roll shall be held to be the original thei'eof ; any such marginal notes or references thereon as are mentioned in Section one, being held to form no part thereof, but to be inserted for convenience of reference only ; and that the Governor in Council may, after such deposit of the Roll last mentioned, declare by Proclamation the day on, from and after which the said Code as contained in the said Roll shall come into force and have effect as law, by the designation of " The Code of Civil Procedure of Lower Canada," and upon, from and after such day the said Code shall be in force accordingly ; And whereas the said Commissioners have incor- porated the amendments mentioned in the resolutions contained in the schedule to the said Act with the said Code of Civil Pro- cedure as contained in the Roll aforesaid, having adapted their form and language tc those of the said Code but without having changed their effect, having inserted them in their proper places, and having struck out of the said Code any part thereof incon- PROCI-AMATION. 15 sistent with those amendments ; And whereas the said Com- missioners have been duly directed to incorporate, and have incor- porated with the said Code such Acts and parts of Acts passed during the last session of the Legislature of Canada, as were deemed advisable to be incorporated therewith, and have struck out of the said Code and amendments any part thereof in- consistent with such Acts or parts of Acts so incorporated ; And WHEREAS the r id Commissioners have altered the numbering of the Titles and Articles of the said Code and have made the neces- sary changes in any reference from one part of the Code to another, and have corrected any misprint or error, whether of commission or omission in the original roll, but without changing its effect ; And whereas so soon as the said work of incorporation and cor- rection was completed, the said Commissioners have caused the Code to bt ' rinted as amended and corrected, having carefully distinguis - such reprint the substantive amendments and ad- ditions m.,u.' .u or to the original .Roll and have submitted the same to the Administrator of the Government of Our said Pro- vince of Canada ; And where:as all the provisions of the first five sections of the above Act have been duly carried into effect ; And whereas the Administrator of the Government of Our said Pro- vince of Canada, after the provisions contained in the first five sec- tions of the said Act had been as above and in every other par- ticular duly carried into effect, hath caused a correct printed roll of the said Code of Civil Procedure attested under his signature and countersigned by the Provincial Secretary, to be deposited in the oflBce of the Clerk of the Legislative Council ; And whereas the said Administrator of the Government of Our said Province of Canada, after such deposit of the said printed roll of the said Code of Civil Procedure hath, by and with the advice and con- sent of Our Executive Council for the said Province, fixed the TWENTY-EIGHTH day of JUNE instant, as the day on, from and after which the said Code as contained in the said Roll shall come into force and have effect as law, by the designation of " The Code of Civil Procedure of Lower Canada ; " Now Know Ye, that by and with the advice of Our Executive Council for the said Province of Canada, We do, by this Our Royal Proclamation, de- clare that on, trom and after the TWENTY-EIGHTH day of JUNE instant, the said last mentioned Roll attested under the 16 PROCLAMATION. «'.!'/ bure of the Administrator of the Govfjrnment of Our said nnce of Canada, countersigned by tba Provincial Secretary and deposited iu the office of the Clerk o.^ the Legislative Council of the said Province as aforesaid, shall coure into force and have effect as law by the designation of " THE UODE OF CIVIL PROCEDURE OF LOWER CANADA ; " Of all which Our loving subjects, of Our said Province, and all others whom these presents may concern, are hereby required to take notice and to govern themeolves accordingly. Iw Testimony Whereof, We have caused these Our Letters to be made Patent, and the Great Seal of Our said Province of Canada to be hereunto affixed: Witness, Our Trusty and Well-Beloved Sir John MiOHEL, K.C.B., Administrator of the Gk)vernment of Our Province of Canada and Lieutenant General Commanding Our Forces therein, &c., &c., &c. At Our Government House, in Our CITY of OTTA- WA, in Our said Province of Canada, this TWEN- TY-SECOND day of JUNE, in the year of Our Lord, one thousand eight hundred and sixty-seven and in the Thirty*first year of our Reign. By Order, WM. McDOVGALL, Secretary. CO I. The p] of the diffe The cour terms thus either from following tej adjoummen brought bed since such a| Coui-ts sit between! except as re[ public office of habeas col courts for tf lessors andf title of the i districts of Court of c. 82,8.4, • Note. — ThJ 1866, intitule! Canada, and to the said std CODE OF CIVIL PROCEDURE OF LOWER CANADA. FIRST PART. GENERAL PROVISIONS. 1. The place, time and duration of the terms and sittings of the different courts are regulated by particular statutes . The court may, according to circumstances, shorten the terms thus fixed, or It may prolong them by adjournment, either from day to day, or to any subsequent day before the following term ; and at any sitting held in virtue of such adjournment, the court may hear and determine all cases brought before it, whether such cases were begun before or since such adjournment. Coui*ts cannot sit on non-juridical days. Nor can they sit between the ninth of July and the first of September, except as regards proceedings concerning corporations and public offices, oppositions to marriages, applications for writs of liaheas corpus in civil matters, suits before commissioners' courts for the summary trial of small causes, suits between lessors and lessees, the proceedings regulated by the first title of the second book of part second, and as regards the districts of Gasp6, of Saguenay, and of Chicoutimi, and the Court of Queen's Bench. C. S. L. C. c. 78, ss. 16, 17, 18 ; c. 82, s. 4 ; c. 83, ss. 15, 37, 79 ; c. 40, ss. 5, 6. Note. — The changes and additions made in virtue of the statute of 1866, intituled : An Act respecting the Code of Civil Procedu/re of Lower Canada, and those confined in the Schedule of Resolutions appended to the said statute, are, in this Code, inserted between brackets [ ]. >.. 18 tlENEKAL reOVISIOOT, ARTS. 1-5. 9Thefonowmgaay»arenon-j«nd.cal: I rTei.. Da. the ^^::^,). «:r, rp^ri 4. Any day appointed "^ '^^^ J neralfa-storthanks- clamation of the governor .««d^^8 ^^^^^ p,„^eding, giving-, [but any ""* "^^ h»»'been made returnable thicb before such P'»°'»"«^:°";*a „n the next foUowmg on a day so fixed, may be returned o ^ ^^ ^ ^ p EaBter-Monday and Ash-Wednesa y & 25 (Qxte). ^ , .a„ for a proceeding which aiterj/^ds __(? iS.L. 0.,c.8'.,8.5. nt at sittings of the courts must remain 4. Persoits present at sitting ----^■^"""'"ITjeouJorasittingiudgeforthe Jnr":^1«-raurin.the«musthern- -t::t^nX":-^etme court, unle. the contrary is expressed.— /^^<^- GENERAL PROVISIONS, ARTS. 6-10. 19 1. A judge of the Superior Court of Lower Canada may act as such in any of the courts of Lower Canada. —Talbot d Limeau, 7 L. C. J. 67, S. C. 1862. 6. The provisions of the two last preceding articles must likewise be obsei'ved wherever judges are in the exercise of their functions. — Ibid. 7. Any person who, during the sitting of the court or of a judge, disturbs order, utters signs of approbation or disap- probation, or refuses to withdraw or to obey the orders of the judge, or the admonitions of the criers or other officers of the court, may be condemned at once to a' fine or impri- sonment, or both, according to the discretion of the court or judge. — Ibid. 89. 1 Tidd's Practice, 479, 480 ; 41 Geo. III. c. 7, s. 16 ; C. P. L. 130, 131, 132 ;— Morin, Discip. des Cours, Nos. 113, 151, 231, 604.— Guyot, Rep. V. Audience 733.4;— Merlin. Rep. V. Audience, § 3 ; — Tomlins, L. Diet. V. Con- tempt, V. Courts. 8. If the disturbance is caused by a person discharging any function before the court, he may, in addition to the punishment imposed in the preceding article, be suspended from such function. — G. P. 0. 80. 1. An attorney in such a case may be immediately suspended.— Binet, Exp., 2 Rev. de lAg., 4S8 K. B., 1818. 9. The courts, in all cases brought before them, may, ac- cording to circumstances, even of their own accord, pro- nounce orders or reprimands, and suppress writings, or declare them libellous. 0. P. C. 1036. 10. The court or presiding judge may appoint an inter- preter, and allow him a reasonable compensation, which forms part of the costs of the suit. C. S. L. C. c. 83 s. 36. OEHERAL PEOVB.OSS, AKTS. U-"- 20 OB" «''***' ., Tf^tL, administer the same. V .„ obtain a thing or right which is la. Whoever seeks to "rfre the proper court. ■ denied hin..n.uet sue to^^«-'PpP^,,. i.rina a suit at law unless he has an in- 13. No person can bring a sun,«. terest therein. ofi7 1 Pio. pp. 41. 61.62, (7. P. 1.15- 2 Prevdt la Jannes, 367, 1 rig- ff h. a Darty to a suit, either as claimant 14. No person can be a party ^^^^^ ^^ ^^ ^^^ f or defendant, in any ^^"^^^^^^^ ' ial provisions apply. exercise of ^"g^^^' XLteTerle of Lr rightsmust Those who have not the "^^ . ^^^ manner pre- 7XZ::^ "%if t^l. 0. a .reign coun. Ql aa 1 2. ' . 4. *«^T, in her declaration et al 3 Rev. de L^g- 39, K. 15. aou. GENERAL PROVISIONS, ART. 15. 21 that they seek condemnations of a like nature, that their joinder is not prohibited by some express provision, and that they are susceptible of the same mode of trial. A creditor cannot divide his debt for the purpose of suing for the several portions of it by different actions. 1 Pig. 38 ; Ord. 1667, tit. xx. aH. 6 ; C. P. L. 148, 149, 150, 151 ; O'Neil v. Atwatevy 28 June, 1855, Montreal ; Philip8 t in the piwer of the parties to change the nature of the action from viiat in which it was originally instituted. Richard v. Denison, 4 L C. J. 42, 14. In an action to revendicate a piano purchased at a judicial sale — Held, that the Coiirt had power to declare the sjile null without any conclusion to that effect in plaintiff's declaration or special answers. Nordheimer et al. and Duplesns et vir., 2 L. C. L. J. 106, Q. B. 1866. 15. A fraudulent deed will not be annulled by the Court on the con- testation of an opposition, unless asked for by the coiiulusions. Blouin v. Langdier d; Latigelier, 3 Q. L. R. 272, S. C. R. 1875. 18. A party who bring.s a suit for less than he is entitled to, upon the same cause of action, may remedy the omission by an incidental supplementary demand in the same suit be- fore judgment rendered. C. P. L. 156, 157 ; 1 PIfj. 337. 19. No person can use the name of another to plead, except the Crown through its recognized officers. Tutois 24 UENERAL FROVI810NH, ARTH. 19-20. CuratoFH and others repreHonting porsonH who have not the flee exerciHo of tlifir rights, plead in their own name in their renpectivo (pialitieH. Corporations plead in their cor- porate ntuiiu. 2 Loisel, hittt., liv. 4, tit. in. art. 5 ; liv. 3, tit. U. art. 4. 1. 'J'ho tranforue has a right of luint^ in thu name of his aaaignor for the recovery of the claim traiiaferred, Cremazie v. Cauchon, 16 L. C. R. 483. 2. The Attorney-General, in appearing for her Majesty, cannot appear by attorney. Cartier v. Laviulette et al. , 6 L. C. J. 309, S. 0. 1802. 3. Church fabriques have a collective name aa a corporation, which they are bound to use in judicial matters. Le/ort exp,, 6 L. C. J. 200, 8. C. 1862. 4. An agent or attorney cannot bring an action in his own name on behalf of his principal, even when there is an agreement to that effect between the principal and the other contracting party. A laopp v. Hart, 2 Rev. de L^g. 29, K. B, 1817 ; Nesbitt et al. v, Turgeon et al, 2 Rev. de L6g. 43, Q. B. 1846. *iO. In any judicial proceeding it is sufficient that the facts and conclusions be distinctly and fairly stated, without any particular form being necessary, and such statements are in- terpreted according to the meaning of words in ordinary language. G. S. L. C. c. 83, S8. 77, 78 ; C. P. L. 161. See aii. 144 post, 1. In an action for the infringement of a right of patent for Lower Canada, the allegation of an infringement " in the County of Montreal " was held to be a sufficient indication of the place where the infringe- ment occurred. Prowse v. Pagnuelo, 2 L. C. R. 311, S. 0. 1862. 2. In an action for the infringement of a patent right to which the de- fendant demurred on the ground that the declaration failed to set out at length the preliminary formalities required to be observed in order to obtain the patent — Held, to be unnecessary and the demurrer was dismissed. Bernier tfc Beauchemin, 2 L. C. J. 193, S. C, & Bemier dc Beliveau, 8 L. C. R. 297, S. C. 1858. 3. A motion to set aside an attachment must state the cause of nullity. Barlow v, Rkhardnon, 3 Rev. de L^g. 304, K. B. 1810. OKKERAL PROVISIONS ARTS. 21-22. fS ^1. All provisions atul niloH conceminj^ proce: He cause. Barnes ia8io:j<3A' for tho district of Quebec, the jurat of which does not sho-A ivbere U'<^ afti- flavit was sworn, is insr.fficient. ilohertson et al. v. l'\)ntaii<^ d- Foit- taine, 20 L. C. J. 195, S. C. 1876. 2. The joint protlionotarj' has a right %o receive ais affidavit intended to make proof in another district, in the same way as if Huch affidavit had been received before a judge of the Sujiorior Court, Traham v. Oagmn & Gagnoti,, 17 L. C. J. 333, S, C. JI873. 3. An affidavit to an opposition in the Circuit Ooi;rt msy bo . Tom bel'orix a Commissioner of the Superior Court, aiid the pfofix ** ^ .m- misdame C. >^" is suffi- iont, even when the affidavit ir. made out of the district ia which tho opposition is filed. Wood v. Ste. Sfarie d- Ste. Marie, 2i L C. J, 306 ; 1 Legal News, 212 C. C. 4. The initials " C. C. S." do not suffice ; the Commissioner should state the name of the district for which he has been appointed. Le- clerc V. Blanchard, 12 L. C. J. 236 ; Lhihaut v. Lacombe, 16 L. C. J. 111. 31. If a party establishes under oath tliat he does not possess sufficient means to make the necessary disburse- ments, the Court or a Judge, on being satisfied by affidavit that such party has a good cause of action or a good defence, may grant him leave to plead i/n forma pauperis, and may order all officers of justice to afford him their services with- out any remuneration ; but such party, if he fails in the suit, is not exeir^t from condemnation to pay costs to the other party. G. 8. L. G. e. 82, s. 24 ; 1 Tidd's Prac. p. 97, Edit, of 1837, p. 63-4, Laya, 393. 3C Vic., c. 20 (Que.). 1. But the Court or judge cannot grant leave to any party to insti- tute in formd pmiperis any suit to recover a penalty. 2. Where the plaintiff, who was in a foreign country, had been al- lowed to plead in forma pauperis — Held, that this did not prevent the adverse party from demanding security for costs. Arpin v . Biqpel, 4 R. L. 385, C. C. 1872. 3. Where a defendant petitioned to be released from capias and the petition was rejected — Held, that he could not appeal from such judg- ment m /( iO L. C. J 3. A pla liauperh in pels all pli costs. Bar 4. An aj /f rna paupt was rejectee 5. Where peris—Held, posed by la Fordersen, 1\ 6. Leave t( Lcffault d) Lei 7. Permissi J'arty so proce side. Dnhaui ^- C. J. 43, S 38. Such Mge, upon al>Je to maki 1- The pern, when the cred| sum for the ai^ Lacombe et al.\ 2. Tlie cour peris when it worth more thj C. J. 170, C. »3- [If «. judgment inl to pay costs.f tl)en entitle^ such party No more ' all the taxec 3 PRELIMINARY PROVISIONS, ARTS. 31-33. 33 to insti- been al- ivent the BiqpeJ, 4 } and the ach judg- ment in forma pauperis. The Catuidian Bank of Commerce da Brown, 19 L. 0. J. 110, Q. B. 1874. 3. A plaintiff resident without the Province cannot sue in fornxa pauperis in consefjuence of the statute 41 Geo. III. cap. 7, which com- pels all plaintiffs resident without the Province to give security for costs. Barry Ao Montreal post otnce oi ^ action "' * ^'7Zt^ *ereo. l» the former d-tnct. Pen„J to recover tlie pnto iW.l, 9 L. C. J- >W' °- "^^ ''^ . ,^, Q,„beo po.t office doe. not ,i e Je to a right of «""» *»'°' *c B. «>, C 08"- S ordered. r.»(. v. Fr..., 16 L- „ „.de in Montreal ;, ^Vhere. contract for the l^^: ^i^ign company, .nd the -"-r«::-hC"::-tth^^^a^^^^^^^ \, Thevlainti*-.^»'f™''trZrdtoth, defendant^ ,.r.ha.an^o< -°»^ ** r^.^^«'»-ned. ^».io. et «r v. Mar- ,hepurcha..ofgr^n.the« ,;««H,IL-0.1^-''-*'®-^-, „^ered good, hy letter from a », Wherea r..ident in '!»>»-"<' "'J^jy^rf^,. for good, to the --"" ^rTttrlS^tKoZt; the can. of aeUonwa. travelling agent ot tne m held to have a L. 0. R. 48, g 22. An aotic ble in Englar 12 L. C. R. 41 23. TheCir actions the cai circuit, althou whicli such gi' in Buch other S. 0. 1851. PRELIMINARY PROVISIONS, ART. 34. 37 held to have arUen in Montreal. Clark v. Ritchey, L. 0. J. 334, 14 L. 0. R. 48,8. 0. 18fi3. 22. An action in Quebec upon an obligation made there but paya- ble in England, was maintained. Jacktun at al. v. Cuxumrthy et al.. 12L. C. R. 410, 8. C.1862. 23. The Circuit Court sitting in any given circuit haa jurisdiction in actions the cause of which has arisen within the limits of such given circuit, although the defendant reside in a district other than that in whiuli such given circuit is bituated, and has been served with process in such other district. S.C. 1851. Hardie et al. db Trottier et al., 1 L. C. R. 280, 24. R. agreed verbally with U. at Nicolet to tow his raft thence to Quebec, whereupon H. telegraphed to his agent in the latter place to instruct R. 's agent to send up R.'s steamboat to perform the towage in (piestion, which was done, and the raft was towed to Quebec accord- ingly, — Held, that the cause of action did not arise in Quebec, that the cause of action meant the whole cause, or all the circumstances giving rise to the right of action, Eiymsean v. Hwjhea, 8 L. C. R. 187, 8. U. 1857. 25. The master of a steamer from Glasgow to Montreal failed to de- liver a passenger's luggage shipped on board of the vessel, — Held, that the cause of action arose in Montreal. Macdou^all v. Torrance, 5 L. C. J. 148, S. C. 1801. 20. An action of damages for libel mny be brought in any district; where the newspaper is circulated through the post-office. Irviiie v. Jhivemay et al, 1 Legal News, 138 ; 4 Q. L. R. 85, S. C. 1878. 27. Where a commercial traveller had commissions to act for variotis houses in Montreal, and to sell goods, and he took an order at Kamou- raska for one of the houses he represented, and such order was accepted at Montreal, it was held that the right of action did not arice in Ka- mouraska. Lapierre v. Gauoreau, 17 L. C. J. 241, S. C. R. 1873. 28. A debtor is liable to be sued where the debt was contracted, but not where it was made payable, merely on account of the debt having been made payable there. Wurtele v. Lenghan, 1 Q. L. R. 01, 8. C. 1874. 29. Where a contract though bearing date at Montreal, was proved to have been made in Ontario, the right of action was held to have arisen in Ontario. The Railway, d:c. Advertisi'iig Co. v. Hamilton et al., 20L. C. J. 28, S.C. 1875. I I m r.KUM.HAUV VUOV.U.NS. XUTS. 35-38 . . i.<»l 11.11(1 *• „ from >'ed ami \K)ai(i, «n aa, inovery «uitfor -P-t.- ^^.^^^^^^^^ , , ^e *• « of Broperty "niy- ^" . ., ^f the husbana. ,„, «'!»-" '^f^ Xe Court of the douuclo of .be C.C.IQ^' .t be broUBht before the Se Every »«« «> ''""'T "•''Tte exMci-e of h« func- .!!!n of a,^ act done .. -- ^^^ « p,.o «ho« tio»»,mu»tbel™ugMj>efo^ 1„1,..3. .„„,> act was eon,n,.tted, C. ,y ^ c 82, «: 27, 28, 30. 1 if there are several delen as. In nratters purely pe«.nal,^ jurisdictions, aalin the same «t; b^tlh Court of the jursd.ct^" ::^roL^r;rhK':.---— -•; -t\!aiactl„„s,theysh....-^^^^ Court of the place ''XX Court of the place where the "^ In »ixed actions; be 'eteC ^^^ ^,„„, „t the »'>^-\^ft^:':. * a^Sants, IW. domicile of one oi d^f endantB. one of Montreal had junsdiction. C E. 413, S. 0. 1856. . ^ ^^.^^ service of pro- dant amenable to the ]«r I'll ili^lrict. /^e»n Ih lit HitiKle V. :{. In f» per U«H(illy "uoil in ally. Firrd v. See Ihivia d; 30. In m beforo the C( if it opens i place where of the (lefeii 40. Inac suit, the dei principal ac may be. II 41. Whei or immovea and partly i Ihid., c. 82, 49. If tl trict is liabl action may grounds of mand ; and the court i before whi( course. C. I'UHI-IMINAUY I'ROVISIONH, AUTS. 38-42. 30 «li»(trict. Lf.mftnrirr S'. a c. 63, s 1 , c. 65, «. 4 ; C. P. Geneve, 34 ; G. P. G. 61. 1. In an action against the master of a vessel then in Quebec, it was held sufficient to describe him l)y the initials of his Christian name as he had given them at the Custom-house, especially as his occupation, &c., were correctly given, Cloony v. Nett, 17 L. C. R. 262, S. C. 1867. 2. Where exception to the form was filed in an action, on the ground that the defendant was described as residing in the village of St. Jean Baptiste, whereas the proper name of the parish in which he resided was St. Jean Baptiste de Rouville, and it was proved *hat there were two parishes of that name, one of Rouville and one of Roxton, the description was held to be sufficient. Oiyon 107, S. C. 1878. 50. The causes of action must be stated in the writ or Id a declaration annexed to it. G. S. L. G. c. 83, ss. "s i, 170, Oixl 1667, tit Hi art. 1 ; G. P. G. 61. 1 . An action will be dismissed on exception if the amount demanded is expressed in figures in the declaration. Rivet v. Fnisson, 11 L. C. R. 493, S. C. 1861. 2. NN'here persons are sued as partners, and a cause of action is estab- lished only against one individually, the action will be dismissed in toto. Fletcher v. Forbes et al. 22 L. C. J. 24, S. C. 1869 ; and Ritchie v. Thomas et al. ; Boy v. Blagdon tfc Boucher : supra art 17. 3. If there be a special agreement, an action indebitatus c is^impsit will 44 OF SUMMONS, ART. 50. not lie. Hitchcock v. Grant, Fielders v. Blackstom, 2. Rev. de Leg. 80 ; McOinvU V. McClosky et ai., 1 L. C. J. 193 ; Ingham v, Kirlqtatrick, 3 L. C. J. 282. 4. But where a balance has been si/ruck and a settlement made be- tween partners, an action i i assumpsit will He. Mobinaon v. Reiffen- ttein, 1 ReT. de Leg. 362 ; Delagrave v. Hanna, 1 Rev. do Leg. 353 ; Marcoux v. Morris, in appeal, 1872. 5, In an action in which the law directs the tenmis and ahmd'tssans to be set out in the declaration it is not sufficient that the land is so described that the defendant must necessarily know it. The descrip- tion must be such as will enable the Court to award judgment as to what is asked. O'Conrwr v. Couture, 3 Rev. de Leg. 40, K. B. 1821, G. In a hypothecary action the plaintiff in his declaration must describe the premises which he claims to be mortgaged by metes and ho\3nd» a peiiie de mdlite. Ferrault v. L'Evesq^ie, 3 Rev. de Leg. 72, K. B. 1819. 7. And if he omits to do so his action will be dismissed upon excep- tion to the form. lb. 8. The details of an action need not be annexed to or mentioned at length in the declaration, nor has any change been effected in this re- spect by the Code. La Banque Nationale v. The City Bank, 3 R. L. 28 and 17 L. C. J. 197, S. C. R. 1871. 9. In an action d'injurea the time and place when and where the words were spoken must be stated, otherwise the action may be dis- missed on exception to the form. Goudie v. Legendre, 3 Rev. de Leg. 39, K. B. 1820. 10. In an action on a contract, the contract must be set out in the declaration. Simard v. Mathurin, 2 Rev. de Leg. 208, K. E., and 3 Rev. de Leg. 39, K. B. 1812. 11. In an action on a promissory note payable at a particular place therein mentioned — Held, that presentacion at such place must be al- leged. Plaintiff allowed to amend. Partridge v. McLeod, 2 R. C. 237, S. C. 1872. 12. But it is not necessary to allege in the declaration that the note is stamped according to law. Doyle th Clement, 10 L. C. J. 332, S. C. 18G6. 13. In an action of damages for libel and slander containing three counts brought against three persons, described as all of the City of New York, mercantile agents and co-partners, cariying on business in the City of Montreal, under the name, styla k\A fim; cf i<. ti. Dui> & OF SUMMONS, ART. 50. the and Co. exceptif ns to the form were filed by two of the defendants on lue i/round inter cdia that the cause of action was insufficiently libelled, inasmuch as it was alleged that the defendant falsely and maliciously (lid compose and write in a certain book kept in the office of the defen- dants a certain false, scandalous and malicious libel, to the eH'ect that the said plaintiff was not reliable, or that the plaintiff was instdvent, <.r words to that effect, but, as the defendants had refused to allow the plaintiff to see the book he was unable to state the exact words therein written — Held, that the exception was well founded, and the action must be dismissed. McDonald v. Dun et uL, 12 L. C. 11. 'Mb, S. C. 1862. 14. Plaintiff brought a hj'pothecary action against the defendant as the holder of an immoveable hypothecated by a third party for a debt due by him to the firm of which plaintiff was a member, the partner- ship having been dissolved and plaintiff having become proprietor of all the debts due the partnership — Held, that the conclusions of the dichiration praying that the holder be condemned to pay the amount (if the mortgage against the said immoveable unless he preferred to abandon it, were illegal. Jienaud v. Froulx, IG L. C. R. 470, S. C. 1866. 15. A hypothecary action which concludes by asking that t' e defen- dant be condemned to pay the claim or abandon the property is suffi- cient. Homier v. Lemoine, 14 L. C. J. 58, 8. C. 1869. 16. The plaintiff in a hypothecary action is well founded in demand- ing a personal condemnation against the tiem detenttur unless he pre- fers to give up, &c. La Huclete de Constructiou Metroimlitaitie v. Bour- ami, 20 L. C. J. 304, S. C. 1876. 17. In an action in revendication the title on which the plaintiff' claims must be distinctly stated in the declaration, and if it is not it is a good cause of exception to the form. Poidhiot v. Scott, 3 Rev. de Leg. 195, K, B. 1820. Contra : Touriffuy v. Bouchard, infra art. 866. 18. And where the defendant pleaded that the plaintiff did not ask by his declaration to have the attachment in revendication declared good and valid and that the effefits seized be delivered up to him — Held, confirming Uie judgment of the Court below, to be unnecessary, as, by the writ, the defendant was called upon to show cause why the attachment should not be declared good and valid, which was equiva- lent to a demand that the effects seized be delivered to the plaintiff, and the writ and declaration should be considered as one. Jackson tk Fdtemi, 15 L. C. R. 60, Q. B. 1864. 19. Whan the particulars of plaintifFs demand are not disclosed by the declaration, and no bill of particulars is therewith filed, such bill 46 OF SUMMONS, ARTS. 50-52. of particulars may be filed at the enquete, if the defendant, instead of moving to dismiss, pleads tu the action. Weatrop <£■ Nichol et al. 2 L. C. J. 194, S. C. 1868. 20. In a case of capias— -HeW, that the 30th Rule of Practice, allow- ing the defendant to move to dismiss the action when the particulars of the demand are nut disclosed by the declaration, and no bill of par- ticulars is filed therewith, does not apply, even in the case when the defendant is in jail under capias, where a paper purporting to be a bill of particulars is filed with the declaration, though such paper do not contain a detailed statement of the whole of plaintiff's demand. Hen- derson (i- Eimis, 2 L. C\ J. 187, S. C. 1858. 21 . The filing of a declaration with a writ of attachment in compul- sory liquidation under the Insolvent Act of 18C9 is irregular. Mcln- tonh d- Davis et al, 14 L. C. J. 235, S. 0. 1870. •51. The formalities mentioned in articles 46, 48, 49 and 50 are required on pain of nullity. Ord. 1GG7. tit. ii, arts. 1, 2. Sft. If the object of the demand is a thir^ certain, it should be described in such a manner as clearly to e8tak)lish its identity. If it relates to a corporeal immover.ble, the nature of such immoveable, the city, town, village, parish or township, street, range or concession wherein it is situated, and also the lands conterminous to it, should be mentioned. If it is a body of land, known under a particular name, it is sutticie/;': to ;.{i /e its name and its situation. If the immoveable forms part of a township, parish, city, town cr village, the lots in which are numbered, it is suffi- cient to state it.s number. If the demand relates to rents constituted for the redei. - tion of seigniorial rights or to rights relating to any seigii ory, they must be described according to the provisions of the Act 27 and 28 Ylct., ch. 39. Ord. 1667, tit. ix., arts. 3, 4 , C. S. L. C. c. 41, ss 26, 28 § 2 , c. 37, s. 74; a F. C. 64; C. P. L. 173. S3. T on the dc may be i The amer of the del C. S. L. 1. A plaii action for ai 2. In an i the declarati fendant as had expired would be pe liresshr d Bt 3. Where I enquete— Hell defendant ha C L. C. J. 30J 4. Theplaij with the facts Frothivgham 5. It is not! the merits of \ tion. Clenioi 6&8, S. C. 187 6. Where that he migh« facts proved- visions of the was upon the| 7. Where of grain, the , tliree bushels be rendered , [ declaration tl Lamourevx vf ^- Where include in hil ON SUMMONS, ART. 53. 47 S3. The writ of summons and the declaration served up- on the defendant and filed in the office of the prothonotary may be amended or uUered with the leave of the Court, The amendment cannot be allowed if it changes the nature of the demand. C. S. L. G. c. 83, 8. 67 ; Powell, p. 188. 1. A plaintiff cannot amend his declaration so as to substitute one action for another. Cnnyrain <{• Fay, 3 Ilev. de Leg. 40, K. B. 1817. 2. Tn an action of damages against a custom house officer, where the declaration omitted to state that the notice had been given to de- fendant as required by law — Held, tuat although the three months had expired within which the action couiu be brought, the plaintiff would be permitted toamjud his declaration on payment of costs. Bresskr cfc Bed, 4 L. 0. ii. 101, S. C. 1853. 3. Where the plaintiff was allowed to amend his declaration during ewpiMe — Held, that he could ncjt proceed with his emiuete until the defendant had ^'^en allowed to plead de tujvo. Maun et al. v. Lambe, L. C. J. 301, S. C. 18G2. 4. The plaintiff may amend the declaration in order to make it agree with the facts proved, and the costs are at the nly clainiod for three bushels — Held, that judgment for more than three bushels might be rendered , as it was manifest from the preceding portion of the declaration that the plaintiff really claimed three hundred bushels. Lamourevx v. Molkur, Vi L. C. J. 110, S. C. R. 1874. 8. Where the plaintiff, 'n an acti(jn in reveiidication, had omitted to include in his prayer all that was necessary to obtain his demand — ■ ^■^•i 48 ON SUMMONS, ART. 63. Held, that he would not be allowed to make supplementary conclu- sions, but must proceed by motion to amend. PoiUm d: Langlois, 10 L. C. R. 322, C. C. 1860. 0. Where, in an action against the endorser of a note, the plaintiff, in his declaration, alleged that the note was made on the 12th of July instant, instead of the sixteenth — Held, on demurrer, that the subse- quent allegation in the declaration that the defendant had promised to pay since the protest of the note would not cover the defect, and the plaintiff was allowed to amend on payment of costs. Helliwell v. MuUin, 5 L. C. J. 76, S. C. 1801. 10. And in a case whore the plaintiffs moved to amend their decla- ration during the ei^quete, the motion was granted on payment of full costs, as in an action settled at the stage whore the action tlien was, viz. , after the inscription for enquele. Symc <£• Heward, 6 L. C. J. 311,8.0.1866. 11. Where the declaration asked for a judgment for goods sold, etc., and the plaintiff desired to extend the action to one of account and for promissory notes, bills, rents and interest, etc. — Held, that these amendments would change the nature of the action and therefore could not be granted. Lamb v. Mann et al. , 6 L. C. J. 287, S. C. 1862 ; Venner v. 8egw, 4 Q. L. R. 6, S. 0. 1878. 12. Where a motion to amend a declaration has been made, the amendment must be made on the face of the declaration, and an op- portunity must be given to defendant to replead before judgment can be rendered. Cournoyer v. Tourquiu, 1 L C. L. J. 110, S. C.R. 1865. 13. Where a female was sued as a widow, when in reality she was the wife of the other defendant, who was sued in his quality of execu- tor to a will, and the return of service established that the copy of the writ and declaration for the female defendant was left with the male defendant persoially, plaintiff was allowed to amend the writ and declaration so as to describe the female defendant correctly. Connolly v. Bonneville et o/., 11 L. C. J. 192, S. C. 1866. 14. Motion to amend the writ and declaration after hearin^; of an exception to the form, may be allowed on payment of all costs, and the exception be disnii«sed. Butisquet v. Jodoin et a/., 10 L. 0. J. 199, S. C. 1866. 15. A plaintiff cannot increase the amount of his demand by a mo- tion to amend his declaration to that effect. Senecal v. Lemoine, 13 L. 0. J. 56, S. C. 1869. 16. Where an opposant moved to amend his opposition by altering ON SUMMONS, ARTS. 53-55. 49 ing a number on the enclorsation, and the plaintiff moved to reject the opposition as having been iilud under a wrong number, the former motion was dismissed, and the latter gratited with costs. Jvsi'ph v. Gify db Co,i, 1 L. C. J. 2, S. C. 1856. 17. The defendant was summoned to appear by his copy of the writ on the 24th April, 18<>0, instoa I of 1801, and pleaded by poruniptory exception to the form — Held, that the defendant not havin^' been pro- perly summoned, the Court had no power or jurisdiction to permit the plaintiff to amend his writ. Blui» tts Lampaun, 12 L. C. K. 23, S. 0. 18(51. 18. A motion to amend a writ by inserting the proper domicile of the plaintiff, who has been described as living in a parish different from that iii which he really resided, will be granted, on payment of costs of the exception to the form. Giguere v. BeanparlatU et al., 5 R. L. 61, C. C. 1873. Vide infra Arts. 117, 320. Fw Amemlme)d of Return, vide Arts. 80, 159. For Delay to Ans-iver Amended PleiuUmj, vide Art. 142. 19. Action was brought by a widow against the executors of her husbaud in destitution of their quality. After plea no proceedings were taken for a considerable time, but at last the plaintiff muved to be allowed to file a supplementary declaration, based on facts that had since arisen. The application was granted in the Superior Court, but on appeal, the judgment was reversed, on the ground that it was not competent to add to the declaration facts which had arisen since the institution of the action. Gadhoia v. Trudeav, et al. , 3 R. C. 52, Q. B. 1872. Marsolais v. Lesage, 1 L. C. J. 42, S. C. 1856 ; Contant v. Lamontagnt e«ai.,17L.C. J. 24,S. C. 1873. •54. No party can be summoned on a Sunday or a holi- I day without the express leave of a judge. Pothler, Proc. 7 ; 1 Fig. 134, notes a,b;C. P. C. 63, 1037 ; a P. L. 207. See Art. 2 supra as to " Holidays." SS. No summons can be served before [seven o'clock in the morning, or after seven o'clock in the afternoon]. This provision does not apply however to cases of capias ad rei^pondendxi/ni. 60 OH IVMMDNS, AUTS. 55-56. Poth., Proc. 7 ; Pig. 134 ; Laws All. Tables tit. 7, L. 8 ; a P. a 1037. Jiohinaon v. McConnack, 1 L. C. 11.27. 1 R^'v. de Leg. 44. 1. Thu nilu with regard to the hours of service is d peine de nviliti. —Kimiey A J'erhiiu, 13 L. 0. R. 302, Q. B. 18G3. •16. Service is effected bj leaving with the defendant a copy of the writ of siimraon.s, and of the declaration, if there is one. The copy must he certified ither by the prothonotary or by the attorney for the plaintiff, or by the sheriff, when the service is to be made by him. — C. S. L. (J. c. 83, s. 3, § 3 ; s. 0, § 3 ; ,"». 44 ; C. P. C. 0.5. 1. A duplicate declaration is orinivalent to a certified copy. — Gugy tt- JirowH, 3 R. I.. 446, S. 0. 1871. 2. Wluvi'O a copy of the doclaration, having the original writ of sum- mons aii:i«xcfl. had been served upon the defendant, instead of the copy of tiio writ, and the baili£P liaving made his return on the copy, the plaintiff obtained another original writ, which 'he substituted for the copy, and the defendant took exception to the service — Held, that on default of the defendant to produce the wiit left with him, to com- pare with that on which the return wivs madt, the service was good and suHicient, and the exception was dismissed. Filion et al v, DeBemi- j>it, 6L. O.J. 128, S. C. 1860. 3. Where in an inscription en faux the question aroso as to the effect of the omission of the word "deputy " before the letters P. S. C. after the signature of tl)e >lflput,y prothonotary to a copy of a writ — Held that not only the word deputy but the letters P. S. C. were en- tirely unnecessary, and the omission of them in the copy of the writ could not in any way affect the writ or sert'ice. McLimoni v. Hubin, 15 L. C. R. 101, S. 0. 1866. 4. The exhibition of the original pleading or paper, at the time of the service of the same, is not necessary. Blai$ v. Lampson, 12 L. C . R. 23, S. C. 1861. 5. But a bailiff serving a writ of summons issued out of the Circuit Court must inform the defendant of the nature and contents of the action. Laidlaw v. Jamieson et iw., 16 L. C. R. 271, C. C. 1865. For service out of district, see Art. 461 Post. ON SUMMONS, ART. 67. 51 •17. Service iniiHt be made cither upon the defendant in person, or at hi.s domicile, or at the place of his ordinary residence, speaking to a reasonable person belonging to the family. In the absence of a regular domicile, servir ay be made upon the defendant at his office or place iin<>9s, if he has one.— (7. *Sf. L. G, c. 83, as. 44, 173 ; C. i "hitty'a Arch. Practice, 184 ; C. P. L 11)0. 1. A return of service of process arf reajMnileiuinm upon a /.{rown per- son on the timber attached, is no service, and cannot be proceeded uptm. McDoHdld V. McDonnell, 3 Rev. de li4g. 306, K. B. 1811. 2. Service of a writ of summons by leaving a copy with the book- keeper of the hotel, where the defendant usually stops, is insutHoient. McDonald et al. v. Seymour, 4 L. 0. R. 355, S. 0. 1854. 3. Held, on an exception to the form, that service of a writ and de- claration could not be legall made by leavin;^ copies thereof with a servant girl at a boarding-house where defendant |was stopping, inas- much as, by the law of this country and by the Provincial Ordinance of 1785, the writ and t'^K\ , ^ -^ J^ ^1^? ^A^ ^.^* ^ HiotogFaphic Sciences Corporation ^w^ ^.>' 23 WEST MAIN STREET WEBSTER, N.Y. MStO (716)873-4503 62 ON SUMMONS, ABTS. 58-61. 58. [In all cases in which the defendant resides in the same domicile with the plaintiff he must be served per«on- ally, unless the court grants leave to serve him otherwise.] 59. If there are several defendants, they are served in the manner above mentioned, separately and distinctly, and a copy of the summons is left with each of them, except in the cases hereinafter provided. Pothier, Proc, p. 7. 60. Service upon a general partnership may be made at its place of business, if it has one, and if it has not, upon one of the partners. , Anc. Deniz., Vo. Ajoumement, No. 27 ; Vo. SogUU, No. 27 ; Encydop. de Droit, Vo. Ajaa/mement, p. 2.57 ; Nouv. Deniz. Vo. Aaaignation, § 7, No. 13 ; 12 Vict. c. 46, a. 4; a p. a 09, § 6 ; Berthelot v. Oalameau, Law Reporter, 109 ; G. 8. G. o. 60, «. 12 ; G. 8. L. G. c. 65, «. 4, § 3; 4 Pavdesms, No. 796 ; Nouv. Pig., pp. 194, 12 ; Gode : " 8ociet4" Art. 6 ; Hinckley V, Smith et al, 22 April, 1848, at Montreal : G. P. L. 198. 1. The service of an action at the place of businesB of a firm or part- nership, in a different district from that in which the writ issued, even when one of the members of such firm is domiciled in the district in which such action is brought, is insufficient. Ponton et al. v. MaU etal., 13 L. C. R. 127, S. 0. 1863. 2. Personal service on one of the members of a oo-partnership is binding upon the whole firm, in like manner as a service made at the office or place of business of the firm. Dechene v. Faitchtr et al., 13 L. 0. R. 415, C. C. 1863. 61. Service upon a joint stock company may be made at its office, speaking to a person employed in such office, or elsewhere, upon its president, secretary or agent. 23 Vict, c. 31, 8. 66 ; G. P. G. 69, § 6. 1. A public joint stock company, like the Montreal Telegraph Com- pany, may be legally served at any one of its business offices. Poeoud V. The Montreal Telegraph Company, 2 R. L. 601, C. C. 1871. -i*fc ;M ON SUMMONS, ARTS. 61-63. §8 2. And the service in such case most be made where the contract was entered into. Jb, 3. A corporation cannot be legally served at the office of a person who does business for the corporation, out of the district whore the office of the company is. Pattiaon v. The Mutiutl Jnturanee Company of Statist4ad d: Sherbrooke, 16 L. C. J. 25, 8. C. R. 1870. 4. Incorporated companies must be served at their principal office and place of business where their books are kept and their meetings held. Toupin v. The -St. Francis Mine Company, 5 B. L. 209, S. 0. 1873. 5. In an action on an insurance policy issued in Upper Canada, where the chief office and place of business of the company was situ- ated, service having been made on the agent at Montreal — Held, insuf- ficient^ the agent not having charge of an office of the company for the transaction of business generally. MePheraon etal. v. The 8t.lMwrene» and Inland Marine Ineitrance Company, 5 L. C. R. 403, S. 0. 1853. 6. Service of a process against the Grand Trunk Railway Company, made at one of its stations, was held to be insufficient ; such service should have been made at their principal place of business. Legeiuire T. The Orand Trunk Railway Company of Canada, 6 L. C. R. 105, C.C. 1856. 6%. If the partnership has no known office or place of business, nor any known president, or secretary or agent, upon a return to that effect, the court or judge may order it to be summoned by a notice to be inserted during one month in at least one newspaper, and such notice is held to be a sufficient service. Ibid. 1. A service of process on the " last president," on the " late sec- retary " and on the " last secretary " of a corporate company, in the absence of any known or discoverable office, was, on an exception to the form, held insufficient. Booth v. The Montreal d Bytown BaUway Company, 3 L. 0. J. 196, S. C. 1859. Service upon a body corporate is made in the manner provided by its charter, and in the absence of such provi- sion, itt the manner prescribed in the two preceding articles. Ibid. 54 ON SUMMONS, ABTa 63-64. He. it I' 8iyict.,o. 34(Que.). " The Joint Stock Oompaniea (General OUumi Aot." " 41 . Service of all manner of aummonB or writ whatever upon the oompany, may be made by leaving a copy thereof at the ofBce or chief place of business of the company, with any grown person in charge thereof, or elsewhere with the president or secretary thereof ; or, if the company have no known office or chief place of business, and have no known president nt secretary, then, upon return to that effect duly made, the Court shall order such publication as it may deem requisite to be made in the premises, for at least one month, in, at least, one newspaper ; and such publication shall be held to be due service upon the company." Section 60 of 31 Vict. c. 25, " An Act respecting the incorporation of Joint-Stock Companies," is similar. . 1. In an action against the school commissioners of a municipality — Held, that the service of the writ of summons made at the domicile of the secretary-treasurer of the defendants was null. The School Com- mitsionera for the Municipality of the Parish of St. Pierre de Sorel v. The School Commitsionera for the Municipality of the Town of William Henry, 3 L. C. J. 189, S. C. 1857. 2. Service on a municipal corporation may be made by leaving a copy of the summons with the secretary-treasurer. The Corporation of the County of Terrebonne de Valin, 9 L. C. R. 436, Q. B. 1869. 64. Foreign companies or corporations, and all executors of wills, administrators, or representatives of the succession of persons having had property ic wer Canada, may, if they have an office or an agent in it Canada, or carry on business therein, be summoned there, in the manner pro- vided in article 61, and, if they have no such office, in the manner prescribed in article 62. C. S. L. a c. 91. 8/ 3 ; :» L. G. R 403. 36 Vict. c. 6 (Que.) : " 1. Foreign rail waycompanieswhocontrcl, either as owners or lessees, any line of railway extending to or passiflg through the Province of Quebec, and who have no office, presided, secretary, or agent therein, are sufficiently summoned by service made upon any of their station- agents or depot-masters in charge of such stations or depots, belonging to or under the control of said Companies, as are situated within this Province." ON SUMMONS, ARTS. 64-67. 55 1. Where a fame arrtt after judgment was serred apon an inaoranoe company (haying its principal place of business and head office in Eng« land, but its chief agency in Montreal) at the agency in Montreal where the writ of summons issued, and the tiers saisis doubted whether there was any service binding tipon them, more especially as the policy had been granted out of *the Province, and as the amount of the policy was payable in England — Held, on the contestation of the decla- ration that the service was good and valid, and the tiers Baitii were ordered to pay the amount to the plaintiff. Cho/pman v. Clarke Monk, 9 L. 0. J. 328, 8. C. 1865. 6. The return of a bailiff can only be contested and set aside on an inscription in improbation. The Trust db Loan Company of Upper Canada <& McKay, 9 L. C. B. 465. Q.B. J 859. 6. A bailiff's return of ser^dce may be contested on motion without improbation. unless the court otherwise orders. McMillan d Bu- chanan, 17 L. 0. J. 13, Q. B. 1873. 7. A bailiff's return made under his oath of office may be contested by summary petition without improbation, unless the court otherwise orders, and by such petition one may pray, not only that the return be set aside as false, but that the action of which it is the rettim may be dismissed with costs. Broaseau v. Alvea ds David, 17 L. 0. J. 228 S. C. 1873. 8. And hdd, also, that contestation may be joined on such peti- tion, lb. 9. A bailiff 's return cannot be attacked by exception to the form Irish V. Brome, 1 L. 0. L. J. Ill, S. 0. 1865. 10. A sheriff's return of service of a writ of summons may be con- tested on motion without improbation. Hvdoti et al. v. Solman et al., 12 L. 0. J. 120, S. 0. 1868. But see Art. 159 post. ^ 80. The court may grai^t leave to amend any error in the return. 1. In an action of satM gagerie par droit de afuite, on an exception to the form — Held, reversing the judgment of the court below, on the motion of the sheilff himself, that he might be allowed to amend his return on a writ in the cause, and that he was competent to make OM SQMMONS — OF THE RBTUBN, ARTS. 80-81. 65 such motion himself. Motion et al. & Burrottgha, 3 L. C. J. 220 & 9 L. C. R. 217, Q.B. 1859. 2. But where the bailiff moved to be allowed to amend hia return of service of a writ after inBcription in improbation had been filed againat it, the motion was rejected with costs. J9'ob6« v. Seymour, 7 L. 0. J. 46 & 13 L. 0. B. 76, S. 0. 1862. 3. But subsequently, on a petition to the same effect — Hdd, that, though the baUiff could not come into the case by motion, the court might, nevertheless, grant the petition on payment of all costs oooas- ioned by the error. lb. 4. A bailiff 's return may be amended on motion of the advocate interested, but, as the bailiff himself only can amend it, the notice should be simply that he be authorized to do so. Bowie v. KMy, 4 R. L. 389, S. 0. 1872. 5. A bailiff's return may be amended !on verbal testimony. BUsk- dl V. Richard, 1 Legal News 130 Q. B., 1878. : :i.': ■'■•rr- CHAPTER SECOND. OF THE RETURN. 81. Every writ of summons, and every writ of capias or attachment, must be filed in the office of the clerk, on or before the day on which the defendant is therein summoned to appear, or upon the next following juridical day, in the case of article 3. G. S. L. C, c. 83, 88. 5,9. 1. The failure' on the part of the plaintiff to pay the entrance fee on the day of return of a writ does not vitiate the return. Lee et al. V. Kintmm et al., 14 L. G. R. 166, S. C. 1863. 8SI. [If the writ is not returned, as hereinabove provided, the defendant may obtam the benefit of a default a^inst the plaintiff, and be discharged from the suit, with costs, upon filing the copy of the writ served upon him.] G. 8. L. G. c. 83, 88. 66, 189, § 4 ; G P. G. 164. 6 66 OF APPEARANCE, ABTS. 82-83. '"'■^'HS 1. On motion the court will aooord eongi di/aut. Oariipy ds Cou- wetU, 16 L. 0. J. 82, S. 0. 1871. 2. On amotion for congi-difaut no notice ii neoesawy. Ottgrion d: SirUcal is Oouin, 4 B. L. 637, S. 0. B. 1873. Chalv*, v. VcUade et al., 21 L. 0. J. 218, S. 0. 1877. 3. Congi-difaut on a ruU will be granted without coats. Larin v» DttUyrgtB di 8iri, 21 L. G. J. 206, S. 0. 1877. SECTION I. OF APPEARANCE. ' '83. The defendant, when duly summoned, must appear, either in person or by attorney, and must file a written ap- ; pearance in the office of the clerk of the court, on the day fixed, or on the next following juridical day. C. 8. L. C, c. 83, 8. 9 ; 22 Vict c. 5, 8. 31 ; C. P. C. 149. - 1. Where two defendants have appeared separately, but by the same attorney, they may, nevertheless, join in their defence and file the same pleas. Araenault v. Bowueau et al., 3 B. L. 28, S. 0. 1871. 2. When an action had been taken by a firm of two attorneys as of record, but the return was signed by one of them only, while the other appeared for the defence, and confessed judgment — Hdd, on motion to set aside the judgment, thut the fact of the same attorney appear- ing for both plaintiff and defendant was not such an irregularity as would involve an absolute nullity in the proceedings. MoUon et al. v, Bwrrmigh, 2 L. 0. J. 107, S. C. 1858. 3. Where the defendant appeared, though not served with a copy of the writ and declaration, and the plaintiff moved to reject the appear- ance on that ground — Held, that an attorney ad litem has a right to appear, even where the defendant was not served with a copy of the writ and declaration. Whitney v. Dunning et al. d: MulhoUand et al., 6 L. C J. 30, S. 0. 1861. 4. An appearance and plea by a person who was not served in the cause though the writ purported to be addressed to him, will be rejected with costs, where the evidence showed that he was aware of the error in the writ. In such a case if a party fears that judgment may be erroneously rendered against him, his proper course is to come in by an interv( S. 0. 187! VideCh 6. Aju( pearance i Paruiiofi, 6. Thed at the pLuM was filed fo having callc Beld, in apj service was to question. Where twi the same ca the case unti ing the party C. C. 1873. 84. Ever of such appJ the prothonj Wheneve/ ment of thj therein, all be served uj his legal dor that he has to the best o) Canada. G. \ See 33 V. 8^ Advoc, T^ithin a distl court is held,! OF ELECTION OF DOMICILE, ARTS. 83-S5. 67 an intervention. The Exchange Bank t. Napptr et cU., 21 L. 0. J. 278, S. 0. 1877. Vide Qrinitan v. The Monitreai Ocean 8. 8. Co., poit Art. 116. 6. A jndge in ohamben has no power to reject from a record an ap- pearance irregularly filed. Duvemay et al. v^The Corporation of fAe Pariih of St. Bartholomew, 10 L. 0. J. 1.36, S. 0. B. 1866. 6. The defendant had left the Province, and the service was made at the place of his last domicile in the Province. Appearance, however, was filed for him by attorney, which the plaintiff ignored, and after having called in the defendant by advertisement proceed? ed ex parte — Held, in appeal, that all the proceedings had must be set aside, as the service was covered by the appearance which the plaintiff had no right to question. McKercher 8ignatv/re, A. B. " Sworn before me, at , this day of 18 . .. : ■. , J. S.P. Signatiure of the Judge, Prothonotary, Clerk or Com- Tfiisaioner. n ON JUDGMENT BT DEFAT7LT, ARTS. 91-92. fti FORM No. 99. In connection with Article 91. Affidavit of a person other than a plavntif. Lower Canada, ) District (or Circuit) of \ ^"^ *^® ^"P®"^'' (^ Circuit) Court. A. B., Plaintiff, vs. C. D., Defendant. E. ¥., of , being duly sworn, doth depose and say, that to his personal knowledge, the sum of being the whole (or part, as the case may be) of the amount de- manded of the defendant in this cause, is justly due by him to the plaintiff (or plaintiffs) for the causes in his (or their) demande mentioned ; and the said deponent hath signed, (or hath declared himself unable to sign, being thereunto d\ily required.) Signature, A. B. , this day of Sworn before me, at 18 . f J. S. P. Signature of the Judge, Prothonotai'y, Clerk or Com- miasioner. 1. The affidavit on which judgment by defaidt is granted by the derk of the court is equivalent to the deposition of a witness in court, and holds the place of proof by enquSte. jyAmou, H al. v. Bowrdon, 17 L. 0. J. 85, C. C. 1873. 2. In a case brought under the Lessor and Lessee Act in which judgment had been rendered by default — Held, on opposition and ap- peal, that the deputy prothonotary had power to render such fudg- ment by default in vacation and in the absence of the judge. Wag- goner (& Bicker et al., 13 L. C. R 102, Q. B. 1862. 119. In every such case, tbft ri-othonotary in vacation, up- on the case being inscribea for judgment, drawn up a judg- ment in the name of the Court, conformably to the demand OF CONFESSION OF JUDGMENT, ARTS. 02-94. 78 and to the amount which appears to be due ; and auoh judg ment is held to be the judgment of the Court, and is re- corded accordingly. No such judgment can, however, be rendered or recorded against any absentee defendant, who has been summoned as such. IHd. 88. 113, 127. The plaintiff may, at any time before executing such judgment, renounce the same, and upon filing with the pro- thonotary his renunciation in writing, he may proceed in the ordinary form, in the same manner us if it had not been rendered ; he must, however, bear the costs of such judg- ment. Ibid. 8. 12U. SECTION V. OF CONFESSION OF JUDGMENT. 94. The defendant may, at any stage of the proceedings, file, or cause to be taken down in writing at the prothono- tary's ofiice, a confession of judgment for the whole or any part of the demand. The confession must be signed by the defendant, or be made by his special attorney, whose power of attorney, in authentic form, must be filed with such confession. 26 Vict c. 10, 8. 10. 1. Action waa taken against the members of a dieBolved partnership on a promissory note, and one of the defendants confessed judgment for both jointly and severally — Held, that a partner after dissolution could not confess judgment in an action brought against the late part- nership, and judgment entered upon such confession would be set aside on opposition. The Canada Lead Mine Company d: Walker et al. d: ateiven, 11 L. 0. R. 433, S. 0. 1861. 2. A confession of judgment to which tho defendant has set his cross, countersigned by his attorney ad litem, is invalid and insufficient, as the defendant must attach his signature to the confession, and, if unable to sign, the confession must be made by means of a notarial instrument. MeKenzie <£* Jolin, 5 L. 0. R. 64, S. C. 1865. I" 74 OP CONFESSION OF JUDGMENT, ARTS. 95-97. It' 95. [If the person who appears as defendant in order to confess judgment, is unknown to the prothonotary, the lat- ter must require him to produce the copy of the summons, or to procure the counter-signature of an attomey-at-law.] 96. If the plaintiff accepts such confession, he may in- scribe the case forthwith for judgment, and the prothono- tary draws up, in conformity with such confession, a judg- ment, which is held to be the judgment of the court, and is recorded and executed accordingly. The judgment thus drawn up need not mention the pre- sence of a judge, but it must contain a reci^Al of the confed- sion, as it was given, and of the inscription by the plaintiff, and, lastly, the condemnation in the name of the court against the defendant. Ibid. 9Y. If the confession of judgment is not accepted, the plaintiff must give the defendant notice to that effect, and after such notice the case is proceeded with in the ordinary course ; and if the plaintiff does not obtain more from the court than he would have had upon the confession, he is not entitled to more costs than if the confession had been ac- cepted ; saving the power of the court to giant the defendant whatever costs of contestation it may think proper. 1. The defendant admitted a part of the amount claimed, and ten- dered the same with his plea. After oonteatation judgment was ren- dered for a larger sum than that tendered, but not for the full amount of plaintiff's demand — Hdd, that the plaintiff must pay the costs of iiontestation from the time of filing the plea. Bouth ▼. DougaU, 2 L. 0. J. 286, S. 0. 1858. 2. But where the defendant had not tendered the amount which he acknowledged to be due, although the court awarded no larger amount to plaintiff than that admitted by defendant, the latter was condemned to pay the necessary costs of action. McF peals. Flower et cd. v. Durnn, 3 Rev. de L6g. 363, K. B. 1820. 4. Exhibits produced at the enqudte, or filed before, may be detained and iiupugned if there be cause to doubt their authenticity. AUen v. Harris, 3 Rev. de L6g. 363, K. B. 1811. 6. Where a copy of a notarial act filed as an exhibit had been mis- laid — Held, that the court would permit another copy to be filed. Otgood T. LeUevre, 3 Rev. de L6g. 363, K. B. 1818. %■ 79 OF THE FILINO OF EXHIBITS, ART. 09. f J. v< 'fi 0. When in the doolftntion of certain Ruvitheea thej referred to certain dooumente — Held, on motion of pikintiff, that thej would be required to file inch documento »t their own expenee, m exhibiU in support of their declaration. Fortyth v. TKe Catuuia Baptist Af<«non- ary Boeiety db Iteming eliU.,2 L. 0. J. 167, 8. 0. 1802. 7. Where the defendant objected to the suffloienoy of an exhibit, and moved to reject it from the record — HM, that the proper recourse was to demand delay to plead, until a eufficient exhibit had been filed. Strothtr V. Torrance, I L. C. J. 83, S. 0. 1867. 8. Where the plaintiflf had inscribed en fanx against a notarial re- ceipt, the defendant notified the notary to produce his minute of the document, and the piinuto being produced, the plaintiff moved that a list be filed of such exhibit by the defendant before he be compelled to proceed with his moyena defatu, the motion was granted with costs. Moreau et vir v. Leuntifi''s declaration, and the consent that an authentic copy thereof sho'^M bo considered filed in the cause as plaintiff's exhi- bit No. 1, is null and void and of no effect. Hynes v. Lennon et al. es qual, 12 L. C. J. 63 and 4 L. 0. L. J. 61, 8. 0. 1867. 12. Where exhibits were filed c . the return of the action which were not mentioned in the declaration, and the defendant niadq motion at the hearing on the merits to have them rejeote'^1 from th'~ "ecord — Held, that, even if they were not regularly pru.': uod, thu motion to reject them was too late. Chevrefils v. Lea Syndics de la Paroiase de Ste. mUme, 2 R. L. 161, 8. 0. 1869. 13. Exhibits filed in one case cannot be transferred to another with- out-, special permission from the court. Avmhavlt etvvrv. Duniop, 13 L. C. -J .40, 8. (J. 1869. e^'e Kelly v. l^rcMr, 2 L. O. R. 368, under Art. 718, Post. 14. Where a party opppsant has omitted to file his titles with his or THE riLiNQ or exhibits, arts. 09 103. 77 uppotition, h« will not be allowed t< file them afterwerda at the en* quite. Moijor «< al. v. Baby A- S^by, 4 L. 0. R. 126, 8. G. 1861. Ift. Where in an opposition alleging payment, if the plaiiitiff have contested the opposition without re<)uiring the production of the exhibits relied on, the opposant may produce thorn at the enqudte if nuoeiKory ^ y paying any costs which may result therefrom. Dawaun A l.»U$u, R. L. 334, Q. B. 1874. 10. In 'I', action on an account it is not necessary to serve a copy of the aooount with the action, it being sufficient to produce such copy wbv'- the action is returned into court. Moffat es qiMl. <{• (hiifnette, 6 R. L. 744, C. 0. 1876. too. If the exhibits are private writings, or notarial originals, the party may retain them until the articulation of facts, provided he tiles copy thereof, certified by him or by his attorney. Bell v. Knowlton, Montreal, March, 1866, 24 R. of Practice. 101. Exhibits filed cannot be taken out of the office, un- less the opposite party consents and a receipt is given. C. P. a 189. 109. [Any person in possession of a document filed and forming part of a record, or having taken or received it, may, upon motion, be coerced by imprisonment to return the same, without prejudice to his liability for damages.] C. P. a 107. 1. On a rule against the prothonotary or clerk of the court for con- tempt because of the non-productiou of a record, the parties will be ordered to purge themselves of all knowledge in the matter. Morgan V. Valoia, 9 L. C. J. 169 C. 0. 1865. 103. Until the exhibits have been filed, in the manner hereinbefore prescribed, the plaintifi' cannot proceed with his demand; Ord. 1667, tit. xi. Art. 33, G. P. L. 321. 1 An action r^ a promissory note which is not filed will be dismissed. Hudon V. Oityomrd, 21 L. C. J. IB, Q. B., 1 Legal News, 212. deepest A^ 141, and Foster v. Chamberlin, 2 L. 0. J. 286, under Art. 299, pomt. 78 OP CONTESTATION, ARTS. 104-107. 104. Every exhibit filed in a cause becomes common to all the parties to the suit, and they may obtain copies thereof from the prothonotary so long as it remains in his hands. Serpillon aur tit xi Art. 16, p. 168 ; tv/r tit. xvi., Art. 9, p. 188 ; Pothier, Proc. 44. La Banqv£ du Peuple v. Qugy, 9 L. C. R. 484, Q. B. 1867. 105. The prothonotary cannot receive any exhibit in blank, nor any list of exhibits in virhich the designation of any ' xhibit is not filled up. Ord. 1667. tU. xi., Art'ZI. 106. If the exhibits in support of the demand have not been filed on the return day, they cannot be filed afterwards without giving notice to the opposite party; saving the provisions of Article 100. CHAPTER THIRD. OF CONTESTATION. SECTION I. GENERAL PROVISIONS. 107. All declinatory and dilatory exceptions, and excep- tions to the form, which the defendant intends to plead, must be filed within four days from the return of the writ, except in the case mentioned in article 121. C, 8. L. C. c. 83, 8. 12. I. Where motion had been made to reject certain preliminary pleas because they had not been filed within the four days next after the return of the action — Held, that as the action was returned in vaca- tion the delay did not run. Booth dh the Montreal and Bytown Bailway Company, 4 L. C. J. 296, S G. 1868. OP CONTESTATION, ARTS. 107-108. 79 2. An exception to the form filed on the fifth day after the return day of the action, the fourth being a Sunday, will be rejected on motion under the statute 16 V. cap. 194, sec. 21. Brock etoLae TM- berge, 9 L. 0. R. 231, S. 0. 1859. 3. Held, that, where a motion was made to quaah the writ and dia- misaed, the defendant will not, after the four days allowed by the statute, be allowed to file an exception to the form, and that in such case the dilihM does not suspend the rule requiring ail 'preliminary pleas to be filed within four days after the return of the writ. Mac- farkme v. Worrall v W' . • **- '■' 80 OF DECLINATORY EXCEPTIONS, ARTS. 109-113. H 109. The defendant, when he is entitled to reply, must file his replication within eight days from the filing of the plaintiff's answer. Ibid. 110. A like delay of eight days is allowed for the filing of any other pleading that may be necessary, or is permitted by the Court, in order to complete the issues. Ibid. 111. The party failing to file any such preliminary excep- tion, answer or replication, or other pleading, within the delays prescribed, is by law forelosed from doing so, unless the Court, upon cause shown, has extended the delay, or has otherwise ordered. Ibid. 88. 14, 75 ; 23 Vict. c. 27, 8. 37. 119. [No plea containing a preliminary exception can be filed unless it is accompanied with a deposit of such sum of money as is fixed by the rules of practice of the Court.] 1. In cases under ^0 no deposit is required with a preliminary ex- ception. Alie V. Pamelin, 14 L. 0. J. 134, 0. C. 1869, and Desjardins V. Chretien, 15 L. C. J. 56, C. C. 1871 ; La Compagnie d' Assurance v. Beaulieu, 9 R. L. 432, 22 L. C. J. 267, S. C. 1878. 2. Nor in actions under $100, in the Cities of Quebec and Montreal. Ketmedy v. McKinnon, 3 Q. L. R. 358, 0. C. 1877. 3. But hdd that a deposit is required with such preliminary pleas. Lusher db Parsom, 17 L. 0. J. 196, CO. 1873. i v . . t 4. And that in such cases a copy of the exceptions must be served on the plaintiffs attorney. Ibid. 6. Where a party has answered without reserve a preliminary exception which has not been accompanied by the necessary deposit, he is foreclosed from demanding its rejection on that ground. Quintal d-Boyeeoi., 14L.C. J. 67,S. C. 1868. . SECTION II. OF DECLINATORY EXCEPTIONS. * 113. When a declinatory exception, filed by the defen- dant, is maintained, the parties must be dismissed, saving OF EXCEPTIONS TO THE FORM, ARTS. 113-116. 81 their recourse before a competent Court. C. P. C. 168 ; a p. L. 321. 1. Where a declinatory exception filed to an action requires proof, and the defendant, inbtoad of inscribing for proof, inscribes for hear- ing on the merits of the exception, it will be dismissed for want of evidence. Elliott v. Bastien et cd., 2 L. C. J. 202, S. 0. 1858. 2. In proceedings affecting corporations or public ofSces, the defend- ant may set up against the information a declinatory exception and at the same time pleas to the merits of the petition. The Aitomey-Oen- eral v. Oray, 15 L. C. J. 255, S. C. R. 1871. 3. A plea which invokes want of jurisdiction ratione loci must be pleaded by declinatory exceptions. Fisher et at, v. MoKnight et al. 1 Legal News 350, S. C. 1878 ; 22 L. 0. J. 146. 4. Every motion is an act of submission to the jurisdiction of the court, and therefore a service of motion for particulars, admits the jurisdiction. Monroe et al. v. Laiiberti, 3 Bev de Lig. 72, K B. 1810 ; Brision v. McQueen, 7 L. 0. J. 70, S. C. 1862. 5. The appellants, as one of their grounds of appeal, urged that the Superior Court had no jurisdiction — Held, to have been waived by non-pleader. Gray et al. d: Dubuc, 2 Q. L. B. 234, Q. B. 1876. 114. The parties must also be dismissed by the court, even though no such exception has been pleaded, if the iiction is manifestly beyond the jurisdiction of the court. G. P. a 170. its. The court, in declaring itself competent, may award costs, according to circumstances. 1 Pig. 155. SECTION III. OF EXCEPTIONS TO THE FORM. 116. The following grounds must be pleaded by exception to the form : . 1. Informalities in the writ or service ; 2. Informalities in the declaration, when it contravenes the provisions contained in articles 14, 19, 50, 62 and 55. 1 Pig. 160 et seq. 6 62 OF EXCEPTIONS TO THE FORM, ART. 116. 1. Misnomer must be pleaded by peremptory exception, because it relates to the defendant and not to the court, by putting in issue the plaintiff's right of action against him. Simotieau v. Campbell, 3 Rev. de L^g. 19G, K. B. 1818. 2. But that the declaration is not sufficiently libelled, must, on the contrary, be pleaded by exception to the form because it relates to the court, and inasmuch as it avers the declaration to be imperfect, that it is null and void, and the court cannot proceed. lb. 3. Misnomer cannot be pleaded by exception to the form. Jones v. McNally, S. R. 56, K. B. 1811. Contra : Sharpies v. Dmnais, 3 Rev. de L^g. 195, note, 1846. 4. Where the defendants en garantie were employed by the plaintiffs en garantie as contractors and manufacturers and co-operators with the plaintiffs en garantie — Held, competent for them to plead by prelimin- ary exception ihat they were not such contractors and manufacturers and co-partners, and also by the same exception to attack the correct- ness of the names and designation assumed by the plaintiffs, and on proof of the truth of such allegations to be entitled to a dismissal of the action of tne plaintiffs en garantie. Edmonston et aZ. v. Chiids dk Ckilds et al. v. Chapman et aJ., 1 L. C. J. 249, S. C. 1857. 6. Where in an action by a Municipal Corporation it was described as the Corporation of St. Martine instead of the Corporation of the Pariah of St. Martine, an exception to the form was maintained and the action dismissed with costs. The Corporatimi of St. Martine v. Henderson, 4 R. L. 668, C. C. 1873. b. An exception to the form, filed on the ground that, in the copy of the writ served on the defendant, one of the plaintiflb was styled Richard instead of Bicard, was dismissed on motion. Latour et ux. v. Masson, 6 L. C. R. 483. S. C. 1856. 7. Where a commercial firm plead by exception to the form that the partners are wrongly described in the writ, they must give their cor- rect designation. Dunning et al. v. CHrona/rd et al, 9 R. L. 177, Q. B. 1877. 8. An exception to the form, denying that the defendant is or ever was domiciled as stated in the writ, but not furnishing the name of defendant's true domicile, will be dismissed with costs. Barnes v. Bar- us, 2 Q. L. R. 146, S. C. 1875. . , 9 An exception to the form, alleging that the defendant is described in the action as having his domicile in one district, and that he was served in another, when it was proved that at the time of the issuing of the wi the jlistri Lynch, 5 10. In the form < Court be] domicile a Ouyon V. . 11. An < was filed ■ ronto, in i\ the effect t ing copies o the Townsli in the said the eorvice surance Com S. C. & Q. 1 12. Actioi marriage coi —Held, thai not by demu R. L. 66, Q. 13. Want can only be Antaya et m: 14. \Vher« male plaintil —Held, that such authori S. C. 1873. 15. When being separai she was not f portion of tl have been pi Wheeler et al\ 16. ActionI for building ( partner, and | tutrix, under OF EXCEPTIONS TO THE FORM, ART. 116. 83 of the writ, and previouB thereto, the defendant had hit domicile in the (listriot where he was aerved, will be maintained. Hainault v. Lyntih, 5 R. L. 472, 8. C. 1874. 10. In a case in appeal from a judgment dismissing an exception to the form on several grounds — Held, confirming the judgment of the Court below, that the declaration need not necessarily contain the domicile and description of the parties when it is annexed to the writ. Guyon v. Donaghue, 11 L. C. R. 421, Q. B. 1861. 11. Au exception to the form of the service of a writ of declaration was filed in a caiise wherein the defendant was described as " of To- ronto, in the Home District of Canada West," and the affidavit was to the effect that the service had been made on the defendant by deliver- ing copies of the writ and declaration to the wife of the defendant " of the Township of York, in the County of York, at his place of residence in the said townsMp of York." — Held, maintaining the exception, that the t jrvice was bad, and the action was dismissed. The Montreal As- surance Company d: McPheraon, 16 L. 0. R. 122 and 1 L. 0. L. J. 84, S. C. &Q. B. 1865. . 12. Action was brought by a wife separate as to property by her marriage contract, and such contract was not alleged in the declaration — Held, that the defendant must proceed by exception to the form and not by demurrer. Walker do the Mayor, <&c., of the Town of Sorel, 5 R. L. 66, Q. B. 1866. 13. Want of authorization of a married woman, party to an »«tion, can only be invoked by preliminary exception and not by demurrer. Antaya et vir iir« v. The Montreal and Bytovm Railway Company, 6 L. C. R. 98, S. C. 1864. 33. In an action against an endorser of a note of hand, the omission to set up the protest in the declaration can only be taken advantage of by exception to tho form or special demurrer. Jonea t. PfJiuon, 2 Rev. de Leg. 29, K. B. i& 3 Rev. de Leg. 72, K. B. 1818. 34. A breach of contract insufficiently alleged mus > be pleaded by exception to the form. Pacavd v. Hooker, 2 Rev. de Leg. 207, K. B. 1811. If the breach of contract be imperfectly alleged in the declaration an exception to the form is the proper plea, but if the breach is not at all alleged, advantage may be taken of the omission by demurrer Wagner et al. d; Farran, 3 Rev. de Leg. 195, K. B. 1811. 36. The allegations of an affidavit upon which an attachment before judgment has issued may be contested or denied by means of an ex- ception to the form. Oiroux v. Oa/reau d: (yBrien, 8 L. C. J. 164, S. C. 1864. 36. Where an affidavit in an attachment before judgment was attacked by exception to the form on the ground that the allegations in the affidavit were false — Held, reversing the decision of the Superior Court, that the exception was the proper proceeding and must be main- tained. Leslie et al. dc The MoUona' Bank, 8 L. C. J. 1, & 12 L. C. R. 266, Q. B. 1861. But see Po»<, Art. 819. ^ 37. And where the defendant pleaded a cumulation of actions by exception to the form, the pleading was held to be bad, and the excep- tion was dismissed. Hunter v. Darwin, 1 L. C. J. 287, S. 0. 1857. 38. To^ an irregular incidental demand exception may be taken by exception to the form. Turner v.[Whitfield, 3 Rev. de L6g. 196, K. B.181L 39. A petition in nullity of an adjudication filed by a plaiiitiff to a sale of immovables, will be dismissed on k.vn exception to tJie form filed by the ( instattce, notice, av " Esquiri "defendi " notice o "of the St " April in "can be h 8. 0. 1866. 40. Whe diction of t Held, that ings should a declinatoi 26,8.0.18 41. VVhei that which i Brewster et a 42. An ex appeal : ovei tne court an the summon] the declaratij 1810. 43. WherJ peared and office the ties to the si and the exce[ ^ip Compar Vide The 44. On a merits of su^ motion. 46. An ej held I ') be nd number froi Ian d; 46. Wher tiff ui^ed, OF EXCEPTIONS TO THE FORM, ART. 116. 87 by the adjudiecUaire on the ground that he is not a party to the instance, and Ihat he could not legally be brought into the oase by a notice, such notice being in the following terras : " To John Boston, " Esquire, sheriff for the district of Montreal ; William Brewster, " defendant, and James Haldane, adjudicataire. Gentlemen, — Take " notice of the above petition, which will be presented to the Judge " of the said Superior Court, sitting the court, on Friday, the 27th " April instant, at half past ten o'clock, or so soon thereafter as counsel " can be heard." Joseph v. Brewster et al. r claim, all the parties interested, and whose presence is necessary, are not made parties to the suit. 1 Pig, 160, 170, 173, 179, 188, 197, 200 ; Pothier Proc, 28, 29 ; Ord. 1667, tit viii., Arts. 1. 2 ; tit. ix, Art. 2; G. P. 0. 174; C.P.L. 162,3^2. K ^, 1. In an action for the payment of the price of a lot of land, the ful- filment of the condition that the Tendor should furnish to the purchaser, within one year, the letters patent from the Crown which constitute the former's title, was a " precedent obligation," and the non-exe- cution of the same was properly pleaded by dilatory and not by tem- porary exception. Bi/nchard v. Thivierge, 4 Q. L. R. 162, S. C. 1878. 2. On an action for thirty-aix dollars, balance of salary claimed by the plaintiff, a clerk — Held, on a dilatory exception by the defendant, that where the clerk has collected money for his employer, foi* which he has not accounted, the defendant is entitled to stay of proceedings until such account be rendered. Thompavn v. Bourget, 17 L. 0. B. 269, 0. 0. 1867. 3. That costs due on a former action are not paid cannot be pleaded by exception, but a motion to stay proceedings will be allowed, if it appear that the former action was for the same cause, and was heard upon the merits. Chartier v. McLeiah, 3 Rev. de Lig. 70, K. B. 1821. 4. Non-payment of costs in a former action cannot be the subject of a dilatory or peremptory exception. Robichavd v. Fraser, 3 Rev. de Lrfg. 71,K. B. 1817. See oases under Art. 453, post. \.v OF DILATORY EXCEPTIONS, ETC., ART. 120. 5. Where a defendant, Bued for the price of an immovable which he has purchased, and which was burdened with a hypothec, pleads his right to have such hypothec discharged before being compelled to pay, he must do so by a dilatory exception and not by a peremptory one. Grammant v. Lemire, 5 R. L. 67, 0. 0. 1873 ; Wainwright et ux. d- The Mayor, dbc, of Sorel, 5 R, L. 668, S. C. 1874. 6. Where a suit was pending in the Admiralty against certain goods seized as forfeited, and an action of trespass was brought against the seizors for illegal seizure — Held, that the defendants were entitled to an exception dilatoire to stay the proceedings until the first action was decided. Hartshorn et al. v. Scott da (hmervUlt, P. R. 5, K. B. 1810. 7. A foreign plaintiff is not bound to give notice of the filing by him of a power authorizing his attorney ad litem to' act for him, in order to save himself from costs of an exception dilatoire. The Bank of Com- merce V. Papineau, 20 L. C. J. 306, S. C. 1876. 8. A power of attorney may be demanded when the plaintiff, a for- eigner, contests an opposition. Baltza/r et al. v. Orevnng et al. d; Hutchison etvir, 13 L. C. J. 297, S. C. 1869. 9. Where the power of attorney is not filed before the exception demanding it, costs will be allowed defendant. Weatcott et vir v. Archamhatilt et al., 21 L. C. J. 307, S. C. 1877, 1 Legal News, 211. 10. Where the plaintiff resides out of the Province of Quebec, and fails to furnish security for costs and the power of attorney required by the Code of Procedure, the defendant may, by a declinatory excep- tion , have all further proceedings stayed until such security and pro- curation are furnished. Calvin et al. v. Bertrand, 17 L. C. J. 226, G.C. 1873. 11. When security for costs is claimed by exception, the costs thereof will be reserved to abide the issue of the suit. Akin v. Hood, 21 L. C. J. 47, S. C. 1877. Symes et vir v. Voligny, 1 Legal News, 542, S. C. 1878, 22 L. C. J. 246. Vide Art. 128 post. •;::., „,, . .,i>,,,^ „ ,.;.^ ;: --,. ^ ,,..,?, ; , -;,:-■;- _.. 12. The plaintiff brought action for conventional dower, and the de- fendant called in the nctual holders of the property on which the dower was claimed, pretending that the plaintiff was bound to proceed in the first place against the holders of such portions of the property as had been alienated last — Held, that such an exception could only be pleaded with regard to customary dower. Benoit v. Tanguay d; Tanguay d; Bouthillicr, 1 L. C. J. 168, S. 0. 1857. OF DILATORY EXCEPTIONS, ETC., ART. 120, 93 13. The endorser of a promiasory note, sued for the amount due un- der it, is entitled to a dilatory exception to enable him to call in the maker of the note in guarantee. Beaulieu v. Demera, 5 B. L. 244, C. C. 1874. ->;.,.., 14. An exception of discussion vhich fails to indicate the property to be discussed, or to allege even the existence of property liable to dis- cussion, and which does not contain an offer to defray the expenses of discussion, and is not accompanied by an actual deposit of funds to that end, is bad in law and will be dismissed on demurrer. Pantan ei al. y. Woods et cd., 11 L. C. J. 1«8, S. C. 1866. 16. That all the persons who ought to be defendants in an action ex contractu are not parties to the siiit is rightly pleaded by exception peremptoire temporaire, in which those who ought to be joined in the suit must be named. Fraser etal, v. Dwm et al,, 3 Rev. de. L^g. 196, K.B.1812. 16. The benefits of division and discussion cannot be allowed if they are not pleaded by dilatory exception. Tatiguay v. Dtierow, 3 Rev. de Ug. 71, K. B. 1816. 17. An action may be instituted against a security or caution before the discussion of the principal debtor, and in such case the defendant must allege by dilatory exception that the principal debtor should be first discussed. ' Potdevin v. Miville, 3 Rev. de L^g. 71, K. B. 1816. 18. On an exception dilatoire claiming the right of discussion, the ex- cipient is bound to a.lvance to the plaintiff such sum of money as may be necessary to pay the expenses of discussion. Oauthier v. Moriaette, 3 Rev. de L6g. 71, K. B., 1821. 19. In a commercial matter if it appear in an action of assumpsit that the plaintiff has a partner who is a party to the contract and is not a party to the suit, the action will be dismissed, although the defend- ant has not pleaded such fact. Pozer et al. v. Clapham, S. R. 122, K. B. 1817. 20. A dilatory exception to call in a garant fwinel must show that the excipient is within the delays, and that he has taken the necessary steps to call in his garant. Belle v. DoUm, 20 L. G. J. 302. 8. C. 1876. 21. Where an hypothecary action was brought against a third holder —Held, that he might validly plead the exception of discussion, not- withstanding the mortgage sued on was a special mortgage, but that he had no right to claim to hold the property until his improvements and ameliorations had been paid for. Price v. Nelson d; MacKay, 2 L. C. R. 456, S. G. 1861. 94 OF DILATORY EXCEPTIONS, ETC., ART. 120. 22. In an action against sureties on a bail bond in appeal, the ques- tion as to the necessity of discussing thu property of the principal debtor ■ought not to be raised by demurrer, but by an exception de discussion. Thome v. McLennan tt cU., 9 L. G. R. 403, S. G. 1858. 23. Where the defendant pleaded the discussion of the principal debtor by a peremptory exception en droit temporaire — Held, that such a plea should be urged by dilatory exception. Noad et al. v. Von Ex- ter, 6 L. G. J. 102, S. C. 1860. 24. In revendication of immovable property, if the defendant holds the estate demanded merely as a tenant, he must plead the fact by dil- atory exception and set forth the name and residence of the proprietor. Clement v. Hamel, 3 Rev. de L^g. 71, K B. 1817. 25. A dilatory exception founded on the benefit of discussion, daimec^ by a surety, must be decided before proceeding with the pleas to the merits, and the proof must be limited to the facts set up in such exception. Cunningham et at. \. Ferrie et al., 2 Rev. de L6g. 169, Q. B. 1842. 26. And where the defendant pleads by exceptioti t^mpotaAre that he held the property demanded as guardian appointed by a justice of the peace and prays that the plaintiff's action be dismissed, it is irregular. Pacaud v. Begin, 1 Rev. de L6g. 607, K. B. 1818. 27. And held, abo, that he could only stay proceedings until the person from whom he derived authority to keep the property claimed is made a party to the suit, and his exception, therefore, should be an exception dHatoire. lb. 28. All joint owners in an action in rem must be joint plaintiffii in the process ad respo7uiendum. Bellet et al. v. Allison, 3 Rev de L^g. 306, K. B. 1818. 29. Go-partners, parties to a contract, must be co-plaintiff's. Mor- rogh V. Huot, 2 Rev. de L6g. 207 K. B. 1811. 30. And where a landlord took an attachment in revendication against a piano belonging to a third person, after it had been removed from the house of his tenant, but neglected to join his debtor or ten- ant in the action — If eld, that the action must be dismissed. Auld v. Laurent et al., 7 L. C. J. 49, S. G. 1863. 31. If the legal interest of several persons who are parties to a con- tract be joint they must join in an action which in form is ex eontractu. McLeUh V. Lees, 2 Rev. de h4g. 123, K. B. 1811. OF DILATORY EXCEPTIONS, ETC., ART. 120. 95 32. An exception which states that there are other heirs who ought to be made defendants must name them, aver them to be alive, and point out their residence. Pagi v. Carpentier, 3 Rev. de hig. 395, K. B. 1810. 33. To an action against several heirs it is not a valid objection that all of them have not been made parties to the suit if. during the pro- gress of the suit, they have been made parties by an interlocutory judgment of the court, figtr et ux. rdi- manner Orainger v. Parke, 15 L. C. R. 134, S. C. 1866. 34. The personal undertaking of one person as security is insuffi- cient.— Potom v. Whitney, 6 L. C. J. 40, S. C, 1861. Two sureties should be furnished, Donald v. Becket, 4 L. C. J. 127, S. 0. 1859. 36. For the purpose of ordiiiary security for costs, it is not necessary that the surety be proprietor of immoveable property. Utley et al. v. McLa/ren etcd.17 L. C. R. 267, S. C. 1866. 36. A deposit of a sum of money will be accepted in lieu of sure- ties. Mann d: al. v. Lambe, 4 L. O.J. 300, S.C. 1860. Canada Tanning Extract Co. v. Foley, 20 L. C. J. 180, Q. B. 1876. 37 . But Plaintiff will not be allowed to give security by hypothec, nor by deposit where no amount is specified. Canadian Copper Py- rite Co. v. Shaw, 19 L. C. J. 99, S. C. 1874. 38. The plaintiff is bound to notify the defendant that security for costs has been givon, and a demand of plea and foreclosure with- out such notice are irregular, and will be set aside, as also a judgment i 102 OP DILATORY EXCEPTIONS, ARTS. 128-130. ui the prothonotary rendered in the cause in favour of the pUintilf treating such foreclosure as valid and irregular. Jeraey d Bourk, 13 L. 0. R. 172, Q. B.1862. 39. And where judgment has been so taken, the defendant may ob- tain relief by opposition or simple requite ^^/in d\>ppontion, or by an appeal to the Court of Queen's Bench, but if he take his remedy by appeal, the court will only grant the costs of the court below and the disbursements in appeal, lb. Contra : Tuekett v. Forrester et, al. 13 L. C. J. 179, 8. C; Graves v. Denison etal. 13 L. C. J, 178. S. C. B. 1869. 40. Where a plaintiff is ordered to give security for costs by the first day of next term, he vannot, by furnishing security in the inter- vening vacation and giving notice thereof, compel the defendant to plead even preliminary pleas, before the said first day of term. Ken- nedy V. McKinnon, 3 Q. L. R., 368, C. 0. 1877. 1SI9. [7/ such person fails to put in se^iurity within such time as the cov/rt may fix, the opposite party may obtain a judgm^ent of non-suif] Prevost v. Bisson, Montreal, 26th May, 1860. 33 Vic, 0. 17, (Q.) 1st Febn ary, 1870. 1. Article 129 of the code is amended, so as to read as follows : "The application for security for costs may be made before the court or before a judge, or prothonotary in vacation, and may be adju- dicated upon forthwith. " If the person bound to give security fails to do so within such time as the court, judge or prothonotary may fix, the opposite party may obtain a judgment of non-suit. " Saving the foregoing provision, any person from whom security may be demanded in virtue of article 29 of the civil code, may at any time, whether the same has been demanded or not, put in such secu- rity after one clear day's notice to the opposite party." 1. Where the plaintiff failed to give security for costs within the delay fixed by the court — Held, on motion to that effect, that the action would be dismissed. Adam v. Sutherland, 2 L. C. J. 109, S. C. 1857. 130. The exception of discussion, whenever it lies, is s ib- jeet to the general rules contained in this section and to the special provisions contained in articles 1941, 1942, 1943, 2066 and 2067 in the Civil Code. OF DILATORY EXCEPXrONS, ETC., ARTS. 131-132. 103 131. Before anHwerin|;r a dilatory exception, or any oth er preliminary plea filed, the plaintiff may, if he thinks the exception is filed solely in order to retard the suit, require the defendant, in writing, to plead to the merits, and may foreclose him if such plea to the merits is not fileuoh m » plea to the action and a apeoial anawer to auoh plea, and a general inaoription fur the adduc- tion of evidence, although the proof of the special anawer alleging etum jugit aa to the n)atten containbU in the plea to the action if made out would be a bar to any further proceeding! upon auoh plea, a judge in ohambera haa no power to restrict and limit the proof in the iiret in- stance to the special answer, as such limitation can only be ordered by the court. Bnuh ei al. v. Wilxm, 4 L. 0. R. 464, S. 0. 1864. 2. In a case where it was argued or urged that aa the action had been inscribed only for hearing on the merits of the first peremptory exception, there being others, no judgment could be rendered — Hdd, that the inscription was good, and judgment waa rendered ao* cordingly. Thwher d- Filon, 4 L. 0. J. 37, S. 0. 1860. 3. On the contestation uf an attachment before judgment to which an exception to the form had been tiled by the defendant, and subse- quently a petition was tiled against the validity of the seizure in the manner provided for the contestation of writs of capias — Held, that the enquete on the petition might be proceded with independent of the contestation on the exception to the form. The Quebec Bank v. Steert et aid Seymowdal. 12 L. C. J. 227, S. C. 18()8. 133. When the defendant has pleaded a dilatory excep- tion which is afterwards maintained, the foreclosure from pleading to the merits, obtained against him under article 131, is without effect ; but he is bound to file his pleas to the merits within eight days after the expiration of the de- lays granted upon his e^iception, and in default of his so doing the foreclosure holds good. If, upon being required to do so by the plaintiff, the de- fendant has pleaded to the merits, he may, after the judg- ment maintaining his dilatory exception, and within eight days, amend his pleas or plead anew, without thereby incur- ring any costs ; in default of his doing so he is presumed to abide by the pleas filed. C. 8. L. C. c. 83, a. 74, §§ 2, 3. 134. When the object of the dilatory exception main- tained is the calling in of warrantors, the defendant in the principal suit cannot be foreclosed from pleading until after the expiration of eight days, counting from the day on which OK CONTKHTATION UPON THE MERIT8, ARTH. 184-180. lOfi the warrantor could hininelf have lieen furccloHod from plead- ing to the action in warranty. The warrantor may, within the delays granted to the warrantee, plead to the action brought against the latter, whether the warrantee has already pleaded to it or not. Ibid. § 3. * 13ft. Qroundn of preliminary exception may, in certain caHes, be urged by motion, according to the practice of the courts. 1. Where a party ia required to proceed by notion a notice of mo- tion is e<|uiTalent to moving the court, although such notice of motion be given on a day upon which the court is in session and during the term, and such notice of motion has the effect of a rule nisi. Seeretan V. Footeet al. 11 L. C. R. 497, S. G. 1861. 2. A qui^vtion of jurisdiction cannot be tried upon motion. Elwen V. Franei$eo, i L. 0. J. 188, S. C. 1867. 3. A writ of summons in the nature of a prohibition cannot be quashed on motion. Reg. ex Rel. O'Famll v Oameau et al. 4 Q. L. R. 206, S.O. 1878. SECTION V. OF CONTESTATION UPON THE MEUITS. 136. The defendant may plead by peremptory exception : 1. Lis pendens ; 2. The non-completion of the time, or the non-fulfilment of the condition upon which the right of action depends ; 3. The extinction, in whole or in part, of the right claimed by the plaintiff. 1 Pig. 198 ; 0. P. L. 158. 1. To support a plea of liiiapendence, the first and second action must be between the same parties, and the cause of action must be the same, not only as to the thing demanded but as to the grounds on which it is asked; it cannot otherwise be maintained. Voyer v. Ouyon, 3 Rev. de Ug. 197, K. B. 1817. 2. The plea of liti^ndmee is the proper plea when another cause on the same grounds and between the same parties is pending in another f ^ *■■ ■■■.■ 106 OP CONTESTATION UPON THE MERITS, ART. 136. jurisdiction, and it is founded on the fact that another jurisdiction is alroady seized of the case. When both cases are depending in the same court, the exception if there be any necessity for an exception, should not be peremptory but dilatory, but a motion to stay proceed- ings is the better course. JRacfy dc Oliva, 3 Rev. de L^g. 197, K. 6. 1821. 3. Litispendence in a foreign state is no bar to an action instituted in this province. Bmsel et al. As Field, S. R. 668, K. B. 1833. 4. A declaration and writ of summons filed in the prothonotary's o£Sce without a return of service cannot support a plea of litispendence in a suit or demand containing the same grounds and causes of action. Stephens et al. v. Tidmarsh, 6 L. C. R. 3, Q. B. 1866. 6. Litispendence may exist though the parties, plaintiff and defend* ant, occupy different positions in the two actions, and although the first action concludes for a sale and licitation, while the second concludes for a partage en licitation. Boswell v. Lloyd et al. 12 L. C. R. 447, S. C. 1862. 6. And held, also, that litispeiidence must be reckoned from the ser- vice of the writ and not from the day of the return. lb. 7. A plea of litispendence which does not cover the whole cause of action cannot be maintained. Miller et al. v. Dutton, 11 L. C. J. 287, S. C. R. 1866. 8. In an action of damages for assault — Held, that a plea of criminal prosecution for the same offence vas no bar to the action. Peltier v. MimUe, H Rev. dt L6g. 70, K. B. 1818, 9. A judgment dismissing a hypothecary action for want of proof of possession by the defendant cannot be opposed by exception of ret ju- dicata to a subsequent demand founded on an actual possession, pos- session being a fact which is renewed day by day. Nye v. Colville et al. 5 L. C. R. 408, Q. B. 1866. 10. Held, that a plea alleging that a suit has already been brought and decided in a foreign competent tribunal, by the same plaintiff against the same defendant, for the same cause of action, was a ;;ood plea, more especially if it sets up payment of the judgment by the de- fendant. Vaughan etal. v. Campbell, 6 L.O. R. 431, S. C. 1866. 11. In an action for the penalty provided by 12 Vic. cap. 45 — Ktld, that a plea of former recovery for the same offence in a penal action, which does not set out that the first action was instituted before the second, is bad, and will be held so on demurrer, as no matter of defence arising after action brought can properly be pleaded in bar of further OF CONTESTATION UPON THE MERITS, ART. 136. 107 maintenanoe of the action. Mountain v. Dunuu, 7 L. C. R. '30, 8. C. 1867. 12. Nor is an action which does not proceed to judgment any bar to another action fcr the same offence. lb. 13. In an action to recover the amount of three judgments against the defendant which had been transferred to the plaintiff— HeU, that res judicata might be properly pleaded to such action, and the action was accordingly dismissed. Whdan v. Keeler, 13 L. C. R. 363, 0. C. 1863. 14. Where in an action against a minor for damages the deZeiidant pleaded, by peremptory exception, the lack of assistance of a curator, and the plaintiff moved to dismiss the plea on the ground that it should be pleaded by exception to the form — Held, that the exception was properly brought, and the motion was rejected with costs. Crump <& Middkmaa, 5 L, 0. J. 48, S. C. 1860. 15. Where to an action on a promissory note the defendant pleaded minority simply, the plea was held to be insufScient on the ground that he should have pleaded lesion and asked to be released from the obli- gation. Cartier v. Pelletier, 1 R. L. 46, S. C. 18U8 : Blutecm v. Gau- thier, 1 Q. L. R. 187, C. C. ; Boucher v. Gvrard, 20 L. C. J. 134, C. C. 1876. ^ ■"■ - 16. It is for the defendant to plead unnecessary delay in bringing a redhibitory action, as it is a plea of prescription, and will not be sup- plied by the court. Dania v. Tailkjer, 6 R. L. 404, C. C. 1874. 17. Where to establish a plea of prescription the possession of prede- cessors is necessarily invoked, the names of such predecessors must b«>' duly set forth in the pleadings. Lampaon dh Taylor et al. d: Hughes et al., 13 L. C. R. 164, 8. C. 1862. 18. A plea of prescription is not necessarily brought before every other plea or other exception. Beaudry v. Brouillet et vir, 11 I< J. 60, 8. 0. 1866. 19. Pleas of prescription cannot be pleaded by demurrer but by per- emptory exception. Faucher v. Bilanger, 4 R. L. 388, 8. C. 1872. 20. Where on the face of the pleadings it appears that a note of hand is of more than five years' standing, and prescription is pleaded, the court, on oath made by the defendant, will dismiss the action. Benton V. Styles, 3 Rev. de Ug. 38, K. B. 1812. 21 . Where to an action for seaman's wages the defendant phaded prescription, under tht i27th Art. of the Coutume de Paris — Held, 108 OP CONTESTATION UPON THE MEBITS. ART. 186. that such plea was insufficient as not containing an affirmation of pay- ment or offer of payment. Barbeau v. Grant, 4 L. C. J. 297, S. C. I860. 22. Where a buyer, who is sued for the purchase money, pleads fear of eviction or trouble in his possession, he must do so by peremp- tory exception and not by dilatory exception. Matthieu v. Vignetvut 6 R. L. 514, S. 0. 1875. 23. In an action for the price of land sold, the defendant may plead that he is troubled oi nolested, but that he may be troubled is not a good plea. Dubi db Mtville, 3 Rev. de Lig. 70, K. B. ; Morin v. Ar- cand, 3 Rev. de L6g. 70, K. B. 1819. 24. The non-perfor. ance of a stipulation contained in a charter party which does not amount to a condition precedent cannot be pleaded as an answer to an action uf indebitati^a assumpsit for freight. Coltm was illegal, as having described the maker as E. B. Peny in- stead of Joseph B. Perry, is bad, and will be dismissed. Scullion d Perry et al. 9 L. C. J. 174 & 1 L. C. L. J. 64, 8. 0. 1865. A9. If an action be instituted upon a notarial deed, fraud and the consequent nullity of the deed cannot be pleaded by exception, but an incidental demand in rescission must be filed. Bradley t. Blake, 1 Rev. de Ug. 505, K. B. 1812. 40. In an action to recover the amount of an obligation executed by defendant, to which he pleaded that at the time it was entered into he was of unsound mind — Held, reversing the judgment of the court be- low, that duch cause of nullity could be pleaded at any time by excep- tion, and that neither an incidental demand nor direct action was necessary for that purpose. Halcro v. Delesdemiers, 2 L. 0. R. 326, Q. B. 1852. 41 . A universal usufructuary legatee against whom a creditor of the succession sets up the value of the revenue of his l^acy cannot de- mand the details of such revenue which he himself alone can know, and it is sufficient if the creditor in such case gives some approximate idea of its value. DestimauviUe v. Tousignant, 1 Q. L. R. 39, S. C. 1874. 42. Damages cannot be pleaded by way of compensation, but where compensation can be urged it should be pleaded by peremptory excep- tion. Brunei v. Lee, 3 Rev. de L^g. 197, K. B. 1812. 43. Where compensation is pleaded it must be specially invoked, and the conclusions of a plea to that effect must be special, and ask that the compensation be declared to have taken place. Chigy v. Duchesnay, 1 L. C. R. 478, Q. B. 1851. 44. A plea of perpetual exception, by which it is alleged that the sum claimed by the plaintiff is set off by a sum claimed by defendant for damages suffered by him in consequence of the neglect and care- lessness of the plaintiff in the doing of certain works and labour by the plaintiff for the defendant, the value of which he claims by his action, is a good pie i and well founded if proved ; and it is not : eces- sary in such a case that such damages should be claimed by an inci dental cross-demand. Beaulieu v. Lee, 6 L. C. R. 33, S. 0. 1856. 45. And where the defendant pleaded that the plaintiff's claim was extinguished by a still larger amount due. by the plaintiff, but neglected to pray for compensation. — Held, on demurrer, that the plea was bad and must be dismissed, with power to defendant to plead de novo. Beaudry v. Vinet, 7 L. 0. J. 44, S. C. 1862. OF CONTESTATION UPON THE MERITS, ART. 136. Ill 46. And in an action of damages for slander — Held, that a plea in the nature of a plea in justification would not be dismissed because it did not contain an admission of the use of the words intended to be justified. Ougy db FergvMti, 11 L. C. B. 409, Q. 6. 1861. 47. And where the defendant pleaded that what he actually said concerning the plaintiff differed from what was alleged in the plaintiff's declaration and that what he did say was true — Held, that the pier was good, Delisle v. Beatidry, 12 L. C. S. 221, S. C, 1868 ; C, 37 Vic. cap. 38, sec. 5 et aeq. 48. Held, on demurrer, that a plea to an opposition c^fin d'armuler founded on a judgment in separation of property, which attacks the validity of the grour.d upon which such judgment is rendered, is bad. Bouth V. Maguire dk Maguire et al., 101.. C. R. 206, S. 0. 1860. 49. Where the defendant pleaded to an action on an obligation con- tracted in London, England, that the debt was tainted with usury — Held, that the law of England in relation to usury ought to be set up in the plea. Hart et al. v. Phillips, I L. C. R. 90, Q. B. 1851. 50. An action against a husband and wife merely setting up a debt due by the wife previous to her marriage and the fact of the marriage, will be dismissed on demurrer upon plea by the wife to the effect that she has been sued as common as to property, when in fact she was separate as to property from her husband by marriage contract pro- duced. Oagnier v. Crevier et al. , 6 L. C. R. 485, S. C. 1855. 51. In an action against a universal legatee — Held, that the pkxiitiff need not set up in his declaration that the defendant was the sole lega- tee, it being the business of the defendant if there be another to plead the fact. Oagnon v. Page, 1 Rev. de Ldg. 348, K. B. 1818. 52. To a written contract to pay money, non numeratce pecunice may be pleaded under the same circumstances. Fortier v. Beaubien, 2 Rev. de L^g. 78, K. B. 1809. 53. While an action on a bill of exchange was pending, the plain- tiff received from the bankrupt estate of the acceptor of the bill a por- tion of the sum demanded by the action. The defendant thereupon filed a proceeding called an intervention, and the plaintiff, after filing a retraxit for the amount received, moved to reject the intervention on the ground that the proceeding was not an intervention but simply an application to replead — Held, that there was no matter for interven- tion, but for a supplementary plea which in England is known as a plea puis darrein contimui/ivce. Lyman v. Perkins db Perkins, 2 L. 0. R. 304, S. C. 1862. 112 OF gontl:station upon the merits, art. 136. 54. WbiJe an action for tithes was proceeding at e iqudte the plain- tiff filed, as exhibit, his certificate of appointment from the bishop, and the defendant, taking advantage of the information he had gained there- by, and V ' ' ut leave of the court, filed a plea puia darrein continuance which wa» i motion of the plaintiff, rejected from the record, and the judgn. : rejecting it was subsequently confirmed in review. Du- haidt V. Pacatid, 17 L. 0. R. 178, S. C. R. 1866. 55.. Payment and tender must be pleaded by way of perpetual per- emptory exception. Forbes et al, db AtkmaoH, P. R. 40, K. B. 1810. 66. A plea of payments alleged to have been made at different periods which does not shew the dates and amounts of such payments is bad, and will be dismissed on demurrer. Les Damea Bdigieuaea Ur- aulines de Quebec v. Perry, 10 L. 0. R. 194, 8. C. 1860. 57. An agreement between a debtor and his creditor that they will accept a composition in satisfaction of their respective debts may be pleaded to an action by one of the creditors for his whole debt, if he have received the composition. Fraser v. Mururoe db ChUshand, 2 Rev. de L6g. 75 and 334, K. B. 1820. 58. A plea of peremptory exemption admitting the making of the promissory note, or the sale and delivery of goods, and alleging pay- ment of the same, is necessarily divisible, otherwise no issue can be raised upon it. McLean v. McCormick, 1 L. C. R. 369, 0. 0. 1851. 59. Where, in an action for goods sold, the plea was of payment — Hdd, that, as the only proof of payment was an ackncwledgmeni of 910 on account, and a statement signed by plaintiff th&t the balance had been settled by note, the plea was bad, and judgment went for plaintiff. Mercier v. Bousqtiet et vir, 5 R. L. 352, S. C. 1874. 60. Where, to an action to account against a tutor, the defendant pleaded that he had already rendered an account en bloc which had been accepted — Ueld,tha.t such a plea did not constitute ur^e fin de non recevoir, Ducondflji, v. Bourgeois, 2 L. C. J. 104, S. C. 1868. 61 . A plea which states in substance that the defendant is not the person who is responsible to the plaintiff for the sum he demands is, if the matter be pleaded affirmatively, une fin de non recevoir, and not unefin de non proclder. Campbell v. Peltier, 3 Rev. de L^g. 196, K. B. 1820. 62. Where defendant, after being foreclosed, was allowed on affidavit to file a plea to the merits on payment of costs — Held, that a plea deny- ing the fraud «adi.diconfiture set up by the plaintiff would be deemed a plea to the merits. Leeming et al. v. Robertson, 11 L. C. R. 492, S. C. 1S61. 63. Th pajrment 1861. 64. Un fenae au/ declaratiu Copps, 2 I 66. Wh Company, fendants, dants urge they made general pie et al. 2 L. ( 66. In an vessel, to w the absence pilot on bo Lampson <& , 67. A deft amounts to i P. R. 40, Q. 68. Anexc and will be d S. C. 1864. 69. Aplea( jected on de S. C. 1871. 70. Each d; ^on V. OoAithie 71. Several by the same a Rousseau et al. 72, A ploa c foreign to thus S. C. 1870. 73. TheCou copy of a plea aware of its co K. B. 1818. 8 OF CONTESTATION UPON THE MERITS, ART. 136. 113 63. The plea of genetbl ''i special matter therein was irregular, and would be rejected where such matter could have been pleaded by the plea of defendant. Torrance v. Chap- man tt al., 6 L. 0. J, 76, B. C. 18tiO. 1 40. After the expiration of these delays, the party fail- ing to file a pleading is by law foreclosed from doing so without the consent of the opposite party, or leave of court. 1. A motion to be allowed to plead will only be granted upon pro- duction of a plea with the motion. Seheffer et ux. v. Fauteux, 6 R. L. 361, S. 0. 1873. 2. A defendant who has been foreclosed from pleading within the ordinary delays, and who moves to be relieved from such foreclosure, must produce with such motion an afSdavit in support thereof, and also the plea which he wishes to file. Corbeil v. Dumouchel, 4 R. L. 389, 8. C. 1872. 141 . Such foreclosure does not, however, take place with- out an order from the court if the opposite party has not filed with his pleading, in the manner prescrib< i, >he ex- hibits or written proofs upon which it is founded. ; and if such exhibits and written proofs are not filed with such pleading, they cannot afterwards be filed wiUiout the con> sent of the opposite party or leave of court. A judge may, in term or in vacation, extend the delay for filing such exhibits or written proofs. — C. S. L. G. c. 83, 8. 180,§3. 1. An application by the defendant to enlarge the delay to plead, presented after act of foreclosure granted, cannot be entertained by a jadge while the foreclosure oz'Bts, and notice of such application* served on the plaintiffs before the expiration of the delay to plead, does not suspend the plaintiff's right to obtain foreclosure. Miller et ol. T. AfcDonaW e< oZ. 8 L. C. R. 303, S. C. 1868. (V 120 OF CONTESTATION UPON THE MERITS, ARTS. 141-144. 2. Where a defendant Bet up by affidavit that it would be necessary for him to search for papers in several registry offices, and that such search would occupy him six months, to the best of his belief, without which delay he would be unable to prepare his defence in a proper manner — Held, that he was entitled to a delay accordingly to plead. Bell et al. v. Knowltou et cd. 13 L. C. B. 232, S. 0. 18U3. See art. 103 ante. 14/S. When an amendment of any pleading has been allowed, the delay to answer such pleading is reckoned, ac- cording to the foregoing rules, from the day on which the amendment is made and served, without any demand of answer being necessary. .',.;, ; v 143. When the defendant is foreclosed from pleading, the plaintiff may proceed ex parte, and may, if the case admit of it, proceed to judgment, according to the provisions contained in articles 89, 90, 91, 92 and 93. 144. [No particular form of words is required in any pleading ; but every fact, the existence or truth of which is not expressly denied or declared to be unknown, is held to be admitted.] C. S. L. G. c. 88,88. 76, 116, § 3; C. P. L. 327. 1. A woman sued as the widow of A 6 admits her marriage and the death of her Iiusband if she does not plead by exception to the charac- ter and quality in which she is sued. Oeaaeron v. CatMC, 2 Rev. de L4g. 334, K. B. 1820. 2. Where the defendant by his exception admits his signature to a note of hand, but pleads a term of payment, it is not necessary for the plaintiff to prove the defendant's signature to the note, notwithstand- ing the exception has been dismissed and a difeiise en fait filed. Vcd- Hires V. Bwj, 3 Rev. de L6g. 38 K. B. 1820. 3. In an action to recover the value of the use and occupation of a certain property, in which the plaintiff replied specially to the defend- ant's plea of payment that true it is "that money was paid, as alleged *' by defendant, but not at the request of Ihe party deceased, but was " paid by defendant merely to place such party, who is his daughter, " on the same footing as his other children " — Held, that the admission contained in such answer could not be divided, and that the plaintiff OF CONTESTATION- UPON THE MERITS, ARTS. 144-146. 121 was entitled to judgment. Lefebvre & Demontigny, 2 L. C. J. 279 & 9 L. C. R. 233, 8. C. 1858. 4. And in an action brought against the City of Montreal by an as- aesBor for the value of his services — Held^ reversing the judgment of the court below, that the plea in the cause which admitted that the sum of £107 18s. Id. with interest and costs, was due to the plaintiff, praying acte of a deposit of that sum in court, and also praying that the plaintiff's action for the surplus be dismissed entirely, entitles the plaintiff to a judgment fur the sum tendered. Boulanget dh The Mayor, d-c.. of Montreal, 9 L. C. R. 363, Q. B. 18«9. 6. An admission in a factum in review in the nature of a dimtement binds the party producing it. Carden, v. Lennen, 2 R C. 232, S. C R. 1872. a. A plea of payment or compensation is a sufficient admission of the plaintiff's demand, but a plea of prescription alleging payment, and accompanied by a dijeme en fait, is not such an admission. Thayer v. Wilscam, 9 L. C. J. 1, Q B. 18C1. 7. The allegations of a declaration founded on notarial deeds of sale seeking to fasten a personal liability upon defendant toward plaintiff cannot be proved by a declaration made by defendant in another deed to a third party, and no lien de droit is thereby created between plaintiff and defendant. Pelletier v. Battelle, 18 L. C. J. 75, S. C. 1874. 8. It is sufficient in any pleading to allege the facts upon which the party intends to rely in plain and concise language, to the interpreta- tion of which the rules of construction applicable to such language in the ordinary transactions of life may apply, no particular form of words being necessary to express the same. Haicro db Deleaderniers, 2 L. C. R. 325, Q. B. 1852. Vide Art. 20, ante. , , I4«l. E\ery denial of a signature to a bill of exchange, promissory note or other private writing or document upon which any claim is founded, must be accompanied with an affidavit of the party making the denial, or of some person acting as his agent or clerk and cognizant of the facts in such cai)aciiy, that such instrument or some material part thereof is not genuine, or that his signature or some other on the document is forged, or, in the ca'^o of a promissory note or bill of exchange, that the necessary protest, notice and ser- ff«» 122 OP CONTESTATION UPON THE MERITS, ART. l45. vice have not been regularly made, stating in what the Irregularity consists; without prejudice, however, to the recourse of such party by improbation. G. S. L, G. c. 83, s. 86. § 2. [In the case of promissory notes, or bills of exchange pay- able at a particular place, they are presumed, as against the maker or acceptor, to have been presented at that place at maturity, unless the exception founded upon such want of presentation is accompanied with an affidavit that, at the time they became due, provision had been made for their payment at the specified place.] The denial of any document specified in article 1220 of the Civil Code, must be accompanied by the giving of secur- ity for the costs of the commission required to obtain the proof of such document. In the case of paragraphs 5 and 6 of the same article, the denial of the original deposited, must moreover bo accompanied by an affidavit of the party making the denial, stating that he doubts and does not believe that the original in question has been signed by the person or executed in the manner therein mentioned. The party wishing to make use of the copy filed is then bound to prove the original, and for this purpose the person who has charge of the original, is bound, upon the order of a judge, to deposit it in the court in which its genuineness is contested ; and the prothonotary is bound to furnish hir^, 'it the expense of the contesting party, with a copy thereof certified by such prothonotary. The original, the genuineness of which is thus denied, may be ann.^xed to the commission required to obtain its proo£ ! i , 1. A dffejise en fait to an action on a promissory note will be rejected on motion, if unsupported by afBiavit. Lapriaev. Mithot, 4Q. L. B. 328, S. C. 1877. Contra : The Mechanics' Bank v. Scale, 20 L. 0. J. 196, S. 0. 1876. 2. The defendant pleaded that the note sued on had been obtained from him by surprise and false representations, and for insufficient OF CONTESTATION UPON THE MERITS, ART. 145. 123 consideration — Held, that he was not bound to produce with such plea an affidavit under 0. S. L. 0,, cap. 38, see. 86. McCarthy et al. v. Barthe, 6 L. O.J. 130. 3. The defendant pleaded want of notice of protest, but produced no affidavit in support of such plea — Hdd, that the action would be main- tained, notwithstanding that no protest had been given. The Bank of Upper Canada <& Turcotte, 15 L. 0. R. 276. 4. The defendant pleaded want of consideration — Held, that he was bound to produce with such plea an affidavit under 0. S. L. C. cap. 83, . sec. 86. KeUy et al v. (yCotmen, 16 L. C. R. 140. 5. When the defendant pleads that the note was not stamped at its date, he must file an affidavit or declaration under oath. Deaileta v. Trahan, 6 R. L. 52. 6. If a party who is summoned to admit or deny a signature appears • and files a difenae en fait, that is a denial of the signature. Hart v. Bum, 3 Rev. de L^g. 38, K B., & Perrault v. Oirard, 3 Rev. de L6g. 196, K. B. 1820. s 7. In an action against the endorser of a promissory note the defend^ ant pleaded that the signature which purported to be his was not writ- ten by him or with his knowledge, consent or authority, and that he was not aware of the existence of the promissory note until notified of the protest. At the hearing it was urged by the plaintilf that he was entitled to judgment as the affidavit was not in the form required by law. The defendant thereupon made a motion that the dSlibM be discharged, and that he be permitted to file another affidavit. This motion was rejected, and judgment went for plaintiff, but on appeal — Held, that the affidavit was sufficient and the allegations of the plea being proved, the judgment of the court below was reversed, and judg- ment went for the appellant. Browne dh Dow, 11 L. C. R. 273, Q. B. &10L.C.R. 442, B.C. 1861. 8. Where a defendant to an action on a promissorr i\ote pleaded want of notice of protest, and the plaintiff contended that the plea should be dismissed on the ground that it was filed without the affidavit accompanying it under sec. 87 of the Act of 1857 — Held, that as the certificate of the notary showed that the notice he served was utterly useless, an affidavit such as provided by the statute was unnecessary.. Hobbs in re et al. dh Harte et al. 5 L. C. J. 52, C. 0. 1860. 9. Where to an action against the endorser of a promissory note by the endorsee, the defendant pleaded that no sufficient protest of the not« had been made, and, moreover, that at the time he endorsed it,. 124 OP CONTESTATION UPON THE MERITS, ARTS. 145-146. ■f .- li : I \-t .'S.I* ■ ■ t - -V- the endorser, that is the plaintiff, verbally agreed to accept it on t.u credit of the maker alone without recourse against defendant — H"ld, reversing the judgmerb of the court below, that although the protest appeared to be insuihuient on the face of the note, it would, neverthe- less, be held to havt Yasis regularly and legally made, unless with the plea an affidavit h DeatimauvUle db Twtsignant, 1 Q. L. R. 39, S. C. 1874. M 126 OF CONTESTATION UPON THE lUERITS, ART. 147. 6. The want of authorization of a married woman can cnh/ be in Toked by preliminary exception and not by demurrer. Aidayi' v. Borgc et al. 6 R. L. 757, S. 0. 1873. 7. Where a demurrer yru filed to an action on the gruand that, th;) declaration was irregular and contradjctiory, and that v. > amount of damage waa specified as suifered by the plaintiff, and the plaintiff did not pray for the amount of uvr-h. damage!; if. any, the demurrer was dis- missed for the reason that the grounds alleged should be pleaded by exception to the form and not by demurror. Clmvrejih v. Lea Syndics de la Paroiase de >%c. B6Une, 2 ^. L. 161, S. 0. 1869. 8. Whore the defendant was sued cs qv-al., aud pleaded by clemun'«'i' the w 'nt of Buch quality — Held, that such plea should be by pji-elimin- ary ex«itipti<^n t:A not by demurrer. Breavit t. Barbeau et al., 2 R. L. 130, S, a 3879. ' .• . .v. - . - 9 Error at law must be pleaded by exception aud not by demurrer. Boaf-wn V. L'Enger, 4 L. 0. R. 404, S. C. 1864. 10. A plea which is good in part and bad in part should be rejected on demurrer. Millar v. Bowrgeoia d> Holland, 17 L. 0. J. 158 ; S. 0. 1873. 1.1 . And in an action for customary dower by children against a third holder, to which the defendant pleaded that the plaintiffs had not alleged in their declaration that their father had not left in his succes- sion property of sufficient value to satisfy their right of dower — Hdd, that such a plea could not be maintained, and that in order to set aside the action it was necessary to proceed by exception and prove that the father had left in his succession property of sufficient value for that purpose. Lepage et al. <& Chartier, 11 L. G. J. 29, S. 0. 1866. And held, also, tiiat such objection could not be made by demurrer but must be made by peremptory exception. lb. 12. An allegation in a plea in law denying the allegations in the plaintiff's declaration is bad, and must be struck out. Duboia et vir v. StoU, 17 L. C. J. 24, S. C. 1872. 13. One count in a plea can be demurred to although the other counts may be held to be good. Routh v. McChiire d: McO^Ure et al. 10 L. C. R. 206, S. C. 1860. .. ,. .. ^, . / / , 14. When a law issue is raised by demurrer, the demurrer must be heard before the case can be inscribed forenqudte. Burroughav. Bour- get, 2 R. C. 238, S. C. 1872. 16. A difenae au fortda »n droit should be argued previous to the hearing on the merits, and where, by consent, the hearing of the de- OP CONTESTATION UPON THE MERITS, ART. 147. 127 murrer was reserved until the hearing on the merits — Held, that it should be rejected but without costs. Boy et cU. v. Oauthier, 17 L. 0. J. 227, S. 0. 1873. 16. In cases of demurrer founded on the fact that the registration of , the conveyance which forms the basis of the action is not alleged in the plaintiff 's declaration, the court has the right to reserve judgment until the parties are heard on the merits. Desbarata tt al. v. Lemoine et (d. 15 L. 0. J. 81, S. C. 1871. 17. But held, in another case, that proof avant faim droit cannot, under the Ordinance of 1536, be ordered by the court. Hart v. Bote, . 15 L. C. J. 133, S. 0. R. 1871. 18. A judgment on the merits leaving a demurrer undisposed of is bad. lb. 19. The US3 of the present tense has, instead of the past tense lutd, was under the circumstances of the case held to be good ground of demurrer. Stephens v. Hopkins, 1 L. C. L. J. 93, S. C. 1865. 20. A demurrer will lie to a petition to quash a capias when the petition is grounded on irregularities such as should give rise to excep- tion to the form. Lemay v. Lemay, 3 B. L. 32, S. C. 1871. 21. In an action of damages against several defendants, charged with breach of contract to convey a raft — Held, that the action could not be dismissed on demurrer because by the conclusions it was prayed that the defendants be condemned jointly and severally. Banqer et al. & Chevalier et al., 5 L. C. R. 180, S. C. 1855. - 22. A plea of want of notice of action is a general issue, and cannot be touched by demurrer. McNamee v. Himes, 3 L. C. J. 109, S. 0. 1869. 23. The plaintiff leased to the defendant for several years certain premises for the sum of £570, the receipt whereof was acknowledged, and action was afterwards brought to have the lease set aside as fraud- ulent, the plaintiff alleging that the only amount which he had ever received was £37, and that the contracts were usurious, and that there was Usion d'outre moitii, and the defendant pleaded by demurrer — Held, that the parties must proceed to proof before adjudication on the demurrer. Perrault v. Malo, 11 L. 0. K 81, S. C. 1860. 24. Where demurrer was brought to an ao.Mon for the recovery of $100, advanced in consideration of a transfer to be made by defend- ant, and the agreement was never carried out, the demurrer alleging that the action should be one for damages for breach of contract — Held, that the action was properly brought, and the demurrer was dismissed. Bougie v. Leduc, 5 R. L. 548, S. 0. 1874. I 128 OF CONTESTATION UPON THE MERITS, AfiT. 147. 25. And where the declaration set up a contract, and then ohtimed more than was stipulated in the contract without asking that it be set aside, a demurrer was maintained. Ooiighd: Oreavea, 1 L. 0. L. J. 93, 8. 0. 1866. 26. A demurrer to a declaration which sets up a promissory note as made by one of the defendants, St, Julien, tuteur, and prays for judgment against him personally and the other defendant as endorser, will not lie. Darling et at. v. St. Julien et al. 18 L. C. J. 190, S. C. R. 1873. :/,, ,,,.,, . , ,,, ,^,;- ..^ 27. A demurrer is a plea to the merits. Normand v. Huot, 9 L. 0. R. 405, S. C. 1859. 28. Where a defendant on the last day of the delay to plead to the merits made a motion to have the delay enlarged as he was about to file a special demurrer, and could not plead to the merits without pre- judice until the demurrer was disposed of — Held, that difenses en droit should be accompanied by pleas to the merits, but, as this was the first time the question had been raised, the court would allow the de- fendant the rest of the day to file such pleas. Pirrie, v. McHugh et al. I L. C. R. 216, S. C. 1851. 29. A (^emurrer is not a preliminary plea, and need not therefore be filed withir> four days laid down by the statute. Bermm v. Ryan, 4L. 0. R. 1 \ 1853. 30. In an action against the maker of a note payable on demand and generally, want of presentment is not a ground of demurrer. Archer v. Lortie, 3 Q. L. R. 159, S. C. R. 1877. 31. Where a statute requires notice of action to be given to defend- ant before issuing the writ, it is not necessary to allege in the declara- tion that such notice has been given. Simard v. Tuttle, 4 L. 0. R. 193, S. C. 1854. 32. And in another case — Held, that such notice need not be recited at full length in the declaration. Daviea v. ^cChiire, 4 L. C. R. 347, S. C. 1854. i 33. In an action by a tutor to a minor — Held, to be essential that the declaration contain an allegation that the appointment of the said tutor or a memorial of such appointment has been registered. Murray es qual. V. Gorman, 2 L. C. R. 3, S. C, 1851. ^ , 34. Opposition was filed for the amount of a hypothec, and the op- position was contested on the ground that no registration of the hypo- thec was alleged — Hdd, that where the hypothec was opposed to chirographic claims the allegation of registration was unnecessary. 01 1 OP CONTESTATION UPON THE MERITS, ABT. 147. 129 Dmean dk WiUon do MeClennan ds WiUon dt Wood, 2 L. C. J. 253, S. 0. 1867. 36. Where in an action for dower dependent upon an option arising out of a contract of marriage the defendant demurred on the ground that the plaintiff's declaration did not allege the registration of such contract, the action was dismissed in the court below, but re-estab- lished in review on the ground that the allegation referred to was spe- cifically made. Leroux v. Leroux, 5 R. L. 188, 8. C. R. 1873. 36. And where in the same action th*^ defendant filed an exception on the ground that there really was no registration of the contract of marriage, and the plaintiff (demurred, the demurrer was dismissed. lb. 37. In an action against a public officer for a aaisie revendication of ^oods seized — Held, that proof avant /aire droit would be ordered upon a demurrer alleging the omission of one month's notice. Bathgate v, Delide, 15 L. 0. J. 250, 8. C. 1870. 38. In an action brought by a registrar against the sheriff for the value of certain certificates, but in which action the plaintiff omitted to allege that the sheriff had received the fees therefor — Held, that the validity of the declaration could not be tested by demurrer, but must be attacked by a plea to the merits. Lambly et al. v. Quesnel, 16 L. C. il. 148, 0. C. 1864. 39. In an action by the transferee of the assignee of a bankrupt es- tate who had purchased the outstanding debts of the estate — Held, to be necessary to allege in the declaration that the sale was made by order of the judge, and that the formalities required by the 67th sec- tion of the Bankrupt Act have been complied with. Warner v. Mer- ^Mgh, 2 L. 0. B. 452, S. C. 1851 ; Ins. Act, 1875, sec. 69. 40. In a personal action by a transferee — Held, unnecessary to allege that he had served on the defendant a copy of the registration required by Art. 2127 of the Civil Code, and an allegation that the service required by Art. 1571 was made ic sufficient. Dumont db La^ forge, 1 Q. L. R. 159, 8. C. 1874. 41. Where a wife, separate as to property, and alleged to have been carrying on business as A. & Co. , was sued, and her husband brought into the case for the purpose of authorization only — Held, that an alle- gation in the declaration that the defendants under the name of A. & Co. made their certain promissory note was sufficient, and a defense en droit, on the ground that no debt against the wife was set up in the declaration, would be dismissed with coats. Adams r. Fleming et vir, 13 L. C. R. 78, 8. C. 1862. 9 #: 180 OF CONTESTATION UPON THE MERITS, ART. 147. If 42. The plaintifli, not having alleged the inaolvenoy of the defen- dant in thoir doclaration, could not base their right tu sue for the whole of the debt on such inaolvenoy, and the allegation of defendant's inaolvenoy in their special answer could not avail to supply the defici- ency in their declaration. Oihtun et al, v. Moffat db Ymnig, 2 L. C. L. J. 60, Q. B. 1866. 43. And in another action for the infringement of a patent right to which the defendant demurred on the ground that the declaration failed to set out at length the preliminary formalities required to be observed in order to obtain thu patent — Held, to be unnecessary, and the demurrer was dismissed. BenUer v. Beauchemin, 2 L. 0. J . 193, a. 0.; Bernierv. Beliimn, 8 L,G.R.2'37, 8. C, 1858. 44. In an action of damages for malicious arrest upon a capias on the ground that the defendant was about to leave the Province, it is not necessary to allege in the declaration that the action in which he was BO arrested was dismissed. Boyle v . Arnold, 1 Rev. de L^g. 603, K. B. 1821. 45. In an action for malicious arrest of property meditatione fugct, it is not necessary to state in the declaration that the action under which the arrest was made is determined. Whitfield v. Hamilton, 3 Bev. de L4g. 40, K. B. 1811. 46. In an action for the price of sale of certain real property it is not necessary to aver the delivery of the property sold. If it has not been delivered the defendant must plead that fact, and the plaintiff may reply by a delivery or by an oflFer to deliver. Larivie v. Bruno, 3 Rev. de L^g. 40, K. 15. 1817. 47. Action was taken to recover the price of 1000 barrels of flour sold to the defendant, and the plaintiff joined to such action an at- tachment by conservat // proccH.. praying in ordinary form that the goods be seized to wait the decision of the Court — Held, that the ac- tion was good and valid and would be maintained. Baldwin & Bin- m&re et al, 6 L. C. J. 297, S. C. 1861. 48. In an action in which the husband is joined only for the purpose of authorizing his wife, judgment can only be demanded in favour of the wife. Lefort 7, h. 37. 1. Before a jiorty to u suit, can iiiHcribo for hearing in law upon a demurrer he niuat join iiaue upon luoh demurrer by the uaual joinder. Tromblay v. Tremblay, 4 L. C. R. 176, 8. C. 1863. 2. On motion to set aside an inscription for hearing on the merits of a declinatory exception as irregular, there being no answer or replica- tion filed — Held, that the issue was complete without such answer or replication. RuJutrd v. The Champlain atuiSt. Lanrrence Railway Com- pany, 6 L. C. R. 480, S. C. 1866. 3 There can be but one issue on the merits between the parties plaintiff and defendant, or defendants who have not severed in their defence, and issue is joined by the filing of all the answers to all the pleadings or on the expiration of the delay for filing the same. BomoM V. Lloyd, 13 L. 0. R. 476, 8. 0. 1863. 4. The issue is completed by declaration, exceptions and answers to exceptions, if the answers to the exceptions be general. Cochra^M et al. V. Bourvae et al 13 L. 0. J. 168, 8. C. 1869. 6. Issue is joined by a general answer to an exception, and no reply will be allowed. Hutchina et al. v. Frager et al. 14 L. 0. J. 280, 8. C. R. 1870. 6. Issue is joined by declaration, exception and general answer. La Compagnie de Moulim 4 Coton de Hvdon v. VtUois, 20 L. 0. J. 299, S. C. 1876. 7. A special replication is admissible without the permission of the court. Kingley v. Lhinlop, 3 R. L, 448, S. C. R. 1871. 8. A special replication cannot be filed by defendant to the special answer of the plaintiff. Morrison v. Kienkowski es qtial. , 4 L. C. R. 419,8. C. 1864. 9. lint, held, in appeal, that a Special replication may be pleaded to im answer containing facts not stated in the decltiration, and that without obtaining the leave of the court, Kierzkowaki ibits and sub faux and thirty Thompson et al. 4. Where a do to be taine—Held tion. Brxmet v. OP IMPROBATION, ART. 159. 139 SECTION III. OF IMPROBATION. Itl9. Besides the action of improbation which may be brought as a principal and direct action, any party in a suit may proceed by improbation against any authentic docu- ment produced by the opposite party, [and even against a return of the sheriff or of any other judicial officer. Poth. Proc. 333 ; SerpUlon, Code du Faux, 153 ; G.P. G. 214. Nevertheless, as regards simple service of summons or of notice, the return may be contested on motion, without an improbation, unless the court otherwise orders. If the contestation be deemed frivolous the contesting party may be condemned to pay double costs. The Court may, according to circumstances, grant leave to amend the return, by supplying any omissions or cor- recting any errors therein which might be grounds of im- probation.] 1. A sheriff's return is an authentic act, and cannot be impeached without an inscription en fanx and an incidental demand in recission founded on affidavit. B6langer & Holmes, 3 Rev. de Leg, 198, K. B. 1818. 2. Where it is shown that a paper filed in a case has been ante-dated, and in reality filed on a different day from its date and after the proper delay, it will be struck from the files of the courf. on motion to that effect, and it is not necessary to inscribe en favAt against the plumatif or register of papers filed. Bemidry v. Ouimet, 8 L. O.J. 126, S. C. 1863. 3. Where inscription en faux was taken against the defendant's pleas and exhibits as not being filed on the day on which they purported to have been filed — Held, that defendant might withdraw such pleas and exiubits and substitute others on payment of costs of procddure en faux and thirty shillings additional on filing the new pleas. Mayer v. Thompson et al. 1 L. C. J. 280, S. C. 1857. 4. Where a document produced in a case before experts was alleged to be false — Held, that it might be attacked en faux by summary peti- tion. Brunet v. Brunei. 17 L. C. J. 51, S. C. 1871. 140 OF IMPROBATION, ARTS. 169-162. 5. The oertilicate of the prothonotary can only be attacked by im- probation. DeBeaujeu t. Ma8»6,jun., 7 L. C. J. 106, S. G. 1863. C. The correctness of a duly certified copy of a notarial deed may be attacked otherwise than by improbation, and therefore the procedure by way of an iiiMriptian en faux should be dismissed. Dufreane et al. v. Lalo7uie et al. 21 L. C. J. 105, S. C. 1876. See ante, Arts, 79, 80. S 60. A party may also proceed by improbation against any document filed by himself, and which he is seeking to have declared null. > Perrault v. Simard, L. G. R. 24. 161. Incidental improbation is begun by a petition, praying that the party be allowed to proceed by improbation against the document therein designated, and that the oppo- site party be held to declare whether he intends to make use of such document. The petition must, under pain of nullity, be signed by the party himself, or by his attorney, under a special power filed with the petition. ImheH, p. 788 ; Ord. 1670, art. 6 ; Ord,. 1737, tit ii, art 3 ; Serpillon, Code du Faux, 153 ; (7. P. G. 2) 5. 1. On an inscription in improbation — Held, to be unnecessary to make an election of domicile. MartineoAi v. Karrigan, 3 L. C. J. 190, S. C. 1859. 2. A party will not be allowed to inscribe en faux against a bailifif's return after the expiration of the four days from the day of return, except on caus<^ shown by affidavit. Perry v. Milne \ when separated from him as to property, i suit. Ibid. in the suit, s wife, a m the 178. A judge who is liable to be recused cannot refuse to sit in the case until after he has declared the grounds of recusation that may be invoked against him and the court has ordered that he should not sit. Ord. 1667, tit. xxiv., art. 18. 179. Any judge who i'^ aware of a ground of recusation to which he If liable, is bound, without waiting until it is invoked, to make a written declaration of it to be filed in the record. Ibid, art. 17. 180. Any party to a suit who is aware of a ground of recusation against a judge, is bound to make it known as soon as it comes to his knowledge. Ibid, art. 19. 181. After the declaration of the judge or one of the par- ties, the party desirous of recusing the judge is bound to do .so within eight days from the service of such declaration ; after which he cannot do so, unless the court, for sufficient reasons, has extended the delay. Ibid, art. 20. 1. If a judge declare his incompetency by reason of kindred, &c., the parties must file their recusation within eight days, and are dichuen deplein droit if they do not. Neilaon v. The Union Co., 2 Rev. de L^g. 472, K. B. 1817. 183. If no declaration as above mentioned has been made, the judge may be recused at any stage of the case before judgment, upon the affidavit of the party that the grounds 10 fMAGE EVALUATION TEST TARGET (MT-3) // ^ -^ & y V>^ ' ^A^ /- ^ <^ ^ 1.0 1.1 ■" m 12.2 2.0 ■it 14.0 IL25 nil 1.4 1.6 FhotogFaphJc Sdences Corporation \ ^v •s? <^ 33 WIST MAIN STRIET WIBSTIR.N.Y. USM (716) 172-4503 146 OF BKCUSATIOKS, ARTS. 182-188. of recusation have only recently come to his knowledge. md, wri. 21. 18S. A recusation is proposed by means of a petition containing the grounds thoreof, and it must be signed by the party himself or by his attorney under a special power. If the party is absent from the province, his attorney ad litem may, without special power, sign the petition asking that the judge do abstain from sitting. T&ieJ, art. 23; Poth. Proc. 30. 164. When the recusation is made before the judge has made his declaration, communication of it must be given to him, and he must declare in writing whether the grounds are true or not ; another judge then proceeds to determine whether the recusation is founded or not, without the re- cused judge having a right to be present. Ibid, art. 24. l§ff. If the recusation is proposed against the sole judge residing in a district, it is carried to the chief-place of a neighbouring district, designated by the judge who is re- cused, and the record is forthwith transmitted to such place by the prothonotary. C. S. L. C, c. 79, a. 19, § 2 ; c. 78, 8. 20, § I. 180. If the recusing par^ has no written proof in sup- port of his recusation, the judge's declaration is conclusive, and the recusing party cannot produce oral testimony nor even obtain delay to produce written evidence. Ihid, art. 15. 187. If the recusation is maintained, the judge cannot, for any cause or imder any pretext whatever, be present in court during the hearing of the case or the rendering of the judgment. 188. If the recusation has been carried before a court of another district and is maintained, such court remains seized OF DISAVOWAL, ABTS. 18&-192. 147 of the case, and the record from that period forms part of its records. C. S. L. C, c 78, a. 20, § 2 ; c. 79, «. 19, § 3. 189. But if the recusation is dismissed, the case is sent back to the former judge, to be by him tried and deter- mined. Ibid. A party who has a right to recuse a judge may re- nounce his right, by filing a written consent that the judge should hear and decide the case, except in the case men- tioned in article 177. 191. In such case, however, as also when the party fails to recuse, the judge is not bound to sit, unless the grounds of recusation have been declared insufficient. SECTION V. OP DISAVOWAL. 199. Any party may disavow his attorney ad litem who has exceeded his powers. He may also disavow an attorney whom he has not employed ; without prejudice to his rights if he does not do so. 1 Pig. 349 ; C. P. C. 382. 1. The substitution of attorney by the party in this particular cause, in place of the one who previously represented him was an acquiescence in all the proceedings of the first attorney, there being no disavowal, and that notwithstanding any irregularities in the proceedings. Bur- roughs V. MoUon et al. 8 lu C. U. 494. 2. Proceedings in disavowal are in the nature of a suit between client and attorney, and the matter to be adjudged is, had the attorney a right to act or not Moss et al. dk Boss A Boss v ■. Monk, 9 L. C. J. 328, S. C. 1865. 3. And a plaintiff in disavowal is bound to prove all the allegations of his declaration, and particularly that no authority or power to act was given by him to the attorney. lb. 4. An attorney ad littm in possession of papers is not required to justify or prove his authority, but the presumption is that he has a general mandate from the party for whom he acts. lb. 148 OF DISAVOWAL, ARTS. 193-198. el w^:^ ■M 193. A disavowal may take place duiing the suit or after judgment. The latter kind is mentioned in the chapter on petitions in revocation of judgment. Ibid. 1 . A demand for diBavowal cannot be heard or received by the court before the day of the return, unless notice have been given to the op- posite party, nor can it be received when the principal cause is en dili- biri. The Ccmadian BuUding Society of Motdreal ds Lt^frenaye, 3 L. C. J. 236, S. 0. 1869. Vide post Art. 505. 194. A disavowal can only be made by the party himself or his attorney under a special power, and the party himself must declare that he did not authorize the act of procedure which he repudiates. Ibid. 350. 1 . A party who excepts by way of disavowal must state that the dis- avowal is made by himself personally, with the aid of his attorney, or by luafondi de promration. Bartv. Hart, 1 L. 0. R. 307, S. 0. 1851. 198. Disavowal is made by filing a declaration, in the office of the prothonotary of the Court before which the case is pending, that the party disavows the act in question, as never having authorized the same. Pig. i^id. ; C C, ?.53. 196. The party disavowing is bound to proceed without delay to have the disavowal declared vali i, and this is done by a petition served upon both the attorney, or his heirs, and the opposite party. Pig. 350; Lacombe Vo. Proc. ad lit€8,No.2; C.P.G354. - , .. 197. After notice of the disavowal has been given, all proceedings in the principal action are stayed. Pig. ibid. ; GueHvn & O'NeU, Appeal, Dec. 1865 ; C. P. C. 198. 198. The procedure upon the disavowal is the same as in ordinary suits. 199. are am tion as C. P. a 900. proceedii the atton can no loj party has or after b( 1667, tit 2 1. A moti deceased, wi made in the ■Oe Btaiijeu i 16 L. 0. J. 2 2. Seld, o of an attorne Wm was an I there being n the proceedin 1858. 3. Thedea ceedingshad: tiff being real deraon, 21 L. a91. An representing the opposite ao9. IftI such, either office incomj ■ 'f^ OF CHANGE OF ATTORN iSYH, ARTS. 199-202. U9 190. If the disavowal is maintained, the acts disavowed are annulled, and the parties are placed in the same posi- tion as they were in at the time that the acts were done. C. P. G. 360. SECTION VI. OF CHANGE OF ATTORNEYS. 900. If the case has not been heard upon the merits, all proceedings had or judgments rendered since the death of the attorney of one of the parties, or when such attorney can no longer act, or has withdrawn, are null, unless such party has appeared in person, or appointed another attorney, or after being called upon to do so, has made default. Ord. 1667, tit 26, art. 2 ; G. P. G. 341. 1. A motion made in the name of three attorneys, one of whom is deceased, will be rejected on the ground that such motion mi^ht be made in the name of the two surviving attorneys without substitution. De Beaujm v. Rodrigue, 7 L. C. J. 43, S. C. 1862 ; Ten-ill v. Haldane, 15 L. C.J. 245, S. C.1870. 2. Held, confirming judgment of court below, that the substitution of an attorney by a party in place j)f the one who previously represented him was an acquiescence in all the proceedings of the first attorney, there being no disavowal, and that notMrithstanding any irregularity in the proceedings. Burror*gha & MoIsoh et cU. 8 L. C. R. 494, Q. B. 1858. 3. The death of one of plaintiff's attorneys does not invalidate pro- ceedings had in the case as if both were still such attorneys ; the plain- tiff being really represented by the surviving attorney. — Morin v. Hen- deraon, 21 L. 0. J. 83, 1 Legal News, 211 S. C. 901. An attorney who desires, of his own accord, to cease representing a party, must give notice to such party and to the opposite party. 909. If the attorney of one of the parties ceases to act as such, either in consequence of being appointed to a public office incompaUiL/.c «.xw„ ^ .. ^.cfession, or of suspension or 160 OF ABTICULATION OF FACTS, ABTS. 202-207. y- 5f ■> death, the opposite party, when represented by an attomey- at-law, is sufficiently informed without further notice. C. P. 0. 344. When one of the parties ceases to be represented be- fore the case is submitted to the consideration of the court, the opposite party must notify him to appoint another at- torney. 1 Pig. 348. 904. If the defendant thereupon fails to appoint another attorney or appear in person, the plaintiff may proceed with the suit ex parte. If the plaintiff is the party thus in default he maj be non- suited. Poth. Proc. 74. A party's revocation of the powers of his attorney will not be received unless he pays him his fees and dis- bursements, taxed after hearing or notice given to the party. 906. A party who revokes the powers of his attorney must immediately appoint another, without being notified to that effect by the opposite party, and in default of his doing so the case may be proceeded with as provided in article 204. 1 Pig. 349. CHAPTER FIFTH. OF ARTICULATIONS OF FACTS. . 907. Within two days after the issues are perfected according to the prescribed rules, each party is bound to file in the prothoootary's office an articulation of the facts which he has alleged and intends to prove, if the opposite party has not admitted them in Im pleadings. a S. L. a c. 83, 8. 87 ; C. P. C, 252. 1. A m( enqadte. 2. An SI in the plei Roultau d: 3. In oa lessors and Oaueher et 4. Nor u BailUe, 4 Q 5. Where hearing be < filed by the lation of fa Bflanger ds . 6. A case without the for filing the An appeal inscription. Upon a cU Court of App Courts. Bd, 908. n and distinc order. The artic and explicii so that the sion of the 1. A genen M contrary to tinct. The A 120, 8. 0. m 2. An artic " allegations, m this oaus( 1!^ OF ARTICULATIUN OF FACTS, ARTS. 207-208. 151 1. A motion to reject artiouUtion of facta must be preeanted at the enqn«te. TKe Qtubte Bank A itoOatMi e< ol. 14 L. 0. R. 95, S. 0. 1883. 2. An artioalation of faoU which contains matters not to be found in the pleadings, or admitted by such pleadings, is nevertheless good. nouUoMk & Batqwi, 8 L. 0. R. 163, S. 0. 1868. 3. In cases instituted under the Oode of Civil Procedure between lessors and lessees, articulations of facta are not allowable. MitcAett db (?aucAer e< at. 17 L. 0. J. 66, 8. 0. 1872. 4. Nor upon issue joined on a preliminary plea. Bitt* v. Afor^an 4 Baaite, 4 Q. L. R. 184, S. 0. 187a 5. Where the defendant moved that an inscription for proof and hearing be discharged, inasmuch as no articulation of facta had been filed by the parties in the case — H.dA, that the omission to file artiou* lation of facto did not prevent the case from being heard in term. BGanger ds Mogi,^ L. 0. J. 61, Q. B. 1861. 6. A case may be inscribed for enquite and hearing on the merita without the filing of articulations of facta and answers, when the delay for filing them had expired before the date of the inscription. An appeal will lie from an interlocutory judgment rejecting such inscription. Upon a dSsistemerU of a judgment without a tender of costs, the Court of Appeal will condemn the respondent to pay the costo of both Courta. BeUay v. Chtay, 4 Q. L. R. 91, Q. B. 1874. 908. This articulation of facts must consist of separate and distinct articles upon each fact, numbered in regular order. The articles must be in the form of interrogatories, dear and explicit, so as to call for an admission or a denial, and so that the default to answer them will establish an admis- sion of the facts.— a 8. L. G. o. 83, a. 87, § 2 ; C. P. C. 262. 1. A general articulation of facte will be rejected from ih^ record as contrary to law, which requires all articulations to be clear and dis- tinct. The MoUons Bank d FaUmer ei al. dk Falkner et ol. 6 L. 0. J. 120, 8. 0. 1862. 2. An articulation of facta in the words : " Is it not true that the " allegations, matters and things set forth in the plaintiff's declaration " in this cause filed are true and well founded in fact," will be rejected 152 OF ABTICULAHOV OF FACTS, ARTS. 208 212. with ooite, u being no artioalation of facto under the itatute, and m intuffident and insular. Day v. HarU, 16 L. 0. R. 307, S. 0. 1866. 3. No oosto of articulation of facto, or of answer thereto, will be granted, when they are general Ovtrin t. Mathe, 16 L. 0. J. 263, 8. 0. R. ; DaavteU et vir t. Bthier, 16 L. C. J. 301, S. 0. R 1871. The articulation of facts must be served upon the opposite party within the same delay of two days. Ibid., 8.87. 11? m MO. Any document or writing of which a party intends to avail himself at the proof, must be filed with the articu- lation of facts, if it has not been filed sooner. Ibid., s. 88. 911. Within the three days which follow the filing of any articulation of facts, the opposite party is bound to answer each article separately and categorically, admitting or denying each fact articulated, or declaring it not to be within his knowledge. After this delay of three days the party who has failed to answer cannot be relieved from his default, except upon ap- plication made to the court or judge, and upon payment of the costs occasioned by such default and taxed by the judge. Ibid., 8. 87 ; 29 V. c. 43 ; C. P. C, 262. 919. The facts set forth in any articulation of facts are held to be proved : 1. If the opposite party does not answer it within the proper delay; 2. If the opposite party does not deny them in an express manner, or does not declare that they are not within his knowledge. Ibid. 1. Where the plaintiff has neglected to answer the articulation of facto filed by the defendant in support of a plea of compensation, such statement should be taken as admitted by the plaintiff under 29 Vic. cap. 44, sea 74. ArtJumbault ds ArtihamlbauU, 4 L. C. J. 284, Q. B. 1860. OF ARTICULATION OF FACTS, ABT8. 212-216. 16S 2. Held, reraning the jadgment of the court below in • oMe in whioh oompeuMtion wm pleaded, that the default of the plaintiff to answer the artioolationa of faoti of the defendant* waa an admiision of the facta alleged ao aa to make the olaim aet up in compenaation elaire et liquid*, and extinguish the adverse olaim. lb., & 10 L. 0. R. 422, Q. B. 1860. 3. Where a party in a oause has failed to answer the artioulationa of facts filed by the opposite party, such articulations of facia will be tnken pro wnfutit. Ow«na d Dudue ds CompbeU, 6 L. 0. J. 121 & 12 L. 0. R 399, S. C. 1862. 913. If a document not produced with or before the articulation of facts, is afterwards filed in evidence by a party who should have filed it sooner, the costs resulting therefrom must be borne by such party, whatever may be the issue of the suit. — lind., 8. 88. 914. If a fact denied in an answer to an articulation of facts is afterwards proved, the party who denied it must pay the costs incurred by such proof, whatever may be the issue of the suit. A party who has declared that a fact is not within his knowledge may also be condemned to pay the costs incurred in proving it, if the court is of opinion that he must have had knowledge of it. Ibid., 8. 87, § 3. 91ff. A party who has neglected to file his articulation of facts, or who has declared that he had no evidence to adduce and afterwards adduces evidence, must bear the costs occasioned thereby. The same rule applies if he proves any fact not mentioned in his articulation, whatever may be the result of the trial. lUd., 8. 90. 1. On a petition to quash a capias, the defendant, though he succeed, will not be entitled to costs of enquiU unless he have filed articulation of facts. Ogilvy et cU. v. Jones, 17 L. C. J. 26, S. 0. 1872. 2. A party failing to produce articulations of facts must bear the ex- penses of his enqudte even if successful. AtJdnaon d: Noad, 14 L. C. R. 169, S. 0. 1863. f.. r-H 1 i •.■■■'■ 11 1 r 1 ■i lif or ABTICITLATION OF FAOTS, ABTB. 215-219. 8. A party will not b« ftllowad to file nnnran to vrtioulationi of facta •ft«r the OMO luw bom inaeribod for rsriew bj thtt oppoait* party. aieotU T. Btvn, 1 L. 0. L. J. 107, 8. 0. R. 1865. 4. A party will be allowed to produce and file aniwen to articnla- tiona of facta, even after the final hearing of the caae, upon payment of ooata, the motion for leave being founded on an affidavit to tiie eflSset that tuoh anawera were not produced through overaight or inadvertance. BoneeU A Lloyd, 13 L. 0. R 191, 8. 0. 1863. 916. If the court ia of opinion that the opposite party has been taken bj surprise by the abduction of evidence as mentioned in the preceding article, it may postpone the proof or trial, or make such other order, or impose such terms on the party in fault as it deems just. Ibid., a. 90. 191T. The articulation of facts may, with the consent in writing of all the parties, be dispensed with ; and in such case every allegation of facts by one party, which the other party in his pleadings has not denied or declared not to be within his knowledge, is held to be admitted, and the court may award the costs of such proof, according to its discre- tion. Ibid., 88. 76, 93. 918. [In the case of articles 213, 214 and 215, the party who desires to be paid such costs must make a special appli- cation for that purpose, at the time of the hearing on the merits, and accompany his application with a statement of the facts he has been obl^ed to prove, and of his costs of proof.] 919. [In rendering judgment upon the merits, the court also adjudicates upon the application for such costs.] Ibid., 8. 87, § 3 ; 8. 91. H' FAITB R ABTICLI8, ABTH. 220-221. CHAPTER SIXTH. OF TRIAL. SECTION I. t*RBLIMINART PROVISION. 156 After the expiration of the three days allowed to answer the articulation of facts, cases may be tried, accord- ing to circumstances, either by evidence taken before the court or by a jury. Ihid., a. 89. SECTION II. OF INTERROGATORIES UPON ARTICULATED FACTS. 991. The parties in any suit may, at any time dunng the trial, and without retarding either trial or judgment, be examined upon articulated facts pertinent to the issues. Ord. 1667, tit. x., art. 1 ; Code Obi AH. 266 ; 0. 8. L. C. c. 82, «. 19;C. P. (7.,826. 1. In an action between traders for goods sold, faitt et articUa are admissible under the English rules of evidence. Mathon et al. tt Martin, 3 Rev. de Ug. 363, K. B. 1809. 2. A motion for fait$ et articles must be made before the enqudte is closed. Vatterand v. Harte, 3 Rev. de L6g. 364, K. B. 1810. 3. On a rule ioxfaita et artidea served on the defendant — Held, that the service and return of such rule must be made before the case has been inscribed on the role for enqudte. Moreau et vir v. Leonard, 3 L. C. J. 168, S. C. 1869. 4. A party cannot be examined on faits et arftele* before issue joined, unless he is about to leave the Province, or in case of like necessity. The Qwhee Batik v. Baby, 3 Rev. de Lig. 366, K. B. 1821. ..;', ? H' I*-*! 1S6 rAITS ET ARTTCLIB, ARTS. 8S1-2S8. 6. A party ium not the right to euunioe hit tArtnarj on faot* and artiolM before trial. When • OMe hae been reemUly intoribed (or enqoAte and hearing, though the ieiiiee and artioulationi have been completed ■ome month* before, and a party haa, two daya before the day fixed for trial by the inaoription, lerred for the day of trial an order for facta and article* upon the Attorney of hia absent kdvenary, he is itiU in proper time. The words in Art. 231 " without retarding either trial or judgment " mean, "so long as, in the opinion of the court, the right is used with- out intent to retard, &o." And therefore whore the application is made as above, without such manifest intent according to the opinion of the court, the exercise of the right will be allowed, although tho practical effect is to retard the trial. When the attorney of an absent party upon whom an order for facts and articles has been served, declares the residence of his client, and his option to have him examined upon a Commiuion rogatoirc there, such commission will be at the diligence and expense of the party sub- mitting the interrogatories, and will be made returnable within a fixed delay. Knox v. lA^fUur et d. 22 L. 0. J. 226, S. C. 1878. 6. Where an action has been taken to appeal — Held, that the court would discharge tho dSlibiri, and order the case to be inscribed on tho enqudte roll in order to allow the plaintiff to complete his answers to interrogatories, where such interrogatories had not been answered pro- perly at first. Joma et al. d- Oxtyon, 2 L. C. L. J. 16, Q. B. 1866. 999. [Parties are summoned to ansvirer interrogatories upon articulated facts, by means of a process, issued in the name of the sovereign by the prothonotary, upon a written requisition to that effect, and ordering the party to appear before the court, or the prothonotary, to answer the inter- rogatories to be put to him.] Ord. 1667, tit. x., art 2 ; C. P. C. 326. 1. A motion for a rule for faita et articlea to be served upon plaintiff's wife is not a motion of course, and such motion must assign special grounds in support thereof. Jatnieion et al. v. BomukU et at., 6 L. C. R. 430 ; S. 0. 1855. I / The order to answer upon articulated facts is served upon the person or at the domicile of the party, and not up- on his attoraey, unless such party is absent or absconding ; rAin KT ARTICLES, ART. 228. 167 and a copy, both of the order and of the interrogatories, must be loft with him. If the party is abMent, the attorney who has been served may apply to have delay given to him to appear, or, upon indicating the place where such party then is, to have him examined under a commission. IHd. art. 3 ; C. P. C. 326, 329. 1. The servioe of • rule for interrogatnriei $w fait* tt artidu made upon the clerk of the court for an abientee U insufficient. Lamowrtvuc T. Boimecm, 8 L. 0. J. 133, S. 0. 1864. 2. Where a rule for faii* et articUa waa aerved on the attorney of one of the parties who waa an abaentee — Held, that a mere indication by auoh attorney of the reaidenoe of hia client waa a auffioient compli- ance with art. 223 of the Oodo, and that he waa not bound to take atepa to have his client examined under a oommiaaion. WalUrt db Lyman et al. 17 L. 0. J. 246, S. 0. 1873. 3. Where the plaintiff had gone out of the limita of the jurisdiction of the Oourt, and was domiciled on an island in Lake Huron, the Court would not allow service of interrogatories aur faiti et arlielea to be made at the prothonotary's office. BrauU v. Bureau, 4 L. 0. R. 140, S. 0. 1861. 4. The service of a rule for examination of an abaentee upon inter- rogatories mr faiU et ariicUa made at the prothonotary's office is in- sufficient. Fenn v. Bmektr, 7 L. 0. J. 297, S. 0. 1863 ; Tarratt et al. v. Foley et al., 11 L. 0. J. 139, S. C. 1866. 6. The servioe of interrogatories at the defendant's domicile is not sufficient to entitle the plaintiff to judgment on default of the defen- dant to appear if the writ of summons waa not served personally. Darli%^ v. Henderaon, 16 L. 0. B. 432, S. C. 1866. 6. The service of a rule for the examination of an absentee on in- terrogatories 8ur faita et ariidea made at the prothonotary's office is sufficient, and the Oourt may in its discretion prolong the rule to the first day of the next term for the defendant to answer the same. Mc- Donald et al. V. LafaiUe, 9 L. 0. J. 98, S. C. 1866. 7. A certificate of service of interrogatories aur faita * articka must state that the interrogatories and the order to appear and answer were both served. Pozer A Meikle, 3 Rev. de L^g. 366, K. B. 1819. 8. Faita et artielea must be served at the real and actual domicile of the party to be interrogated, and the rule to appear and answer 158 FAITS £T ARTICLES, ARTS. 22^-225. must be served at the same time and plaoe, or a motion pro eonfea»i» cannot otherwise be granted. Buteau di Diuhene, 3 Rev. de Ldg. 355, K. B. 1821. 9. The service of interrogatories nir faits et articles made at the domicile of the defendant is sufficient if the writ of summons has been served upoi m personally. Twrgeon v. Hague et al. I L. C. J. 270, S. C. 1860. See Knox v. Laflewr et al. 22 L. 0. J. 225, art. 221 ante. SKM. A party summoned to answer interrogatories upon articulated facts must appear in person at the prothonotary's office, in ordei to give his answers after being previously sworn. Nevertheless, if the party be a corporation or legally recognised body or community, it must, by special resolu- tion, name an attorney to answer in its place, and specify the answer he must give and swear to as being that which such incorporation intends to give. Ihid., arte. 9, 4, 5 ; C. P. C. 330, 331, 336. 939. If the party served with the rule fails to attend or ^o answer the questions put to him, a default is recorded against him, and the facts may be held to be admitted. The party who thus makes defaidt may, however, answer the interrogatories afterwards, before the hearing of the case, but he must bear whatever costs are occasioned by his default. If any dispute arises as to the pertinency of the interro- gatories, it is settled at once by the judge, when the answers are taken by a judge ; otherwise, the parties must go before the Court in order to have it decided. Poth., Proc. 63. 1. A party interrogated upon fait» et articles, who failed to give ui detail the consideration furnished to the defendant, by reason of which an obligation had been given by the latter, and Jo produce a detailed account of the goods and merchandise, if such was the consideration, was bound to do so, and upon default the interrogatories would be taken pro confeaais. Lantier v. Daoust et ux., 10 L. 0. R. 497, Q. B. 1860. 2. Nor can such party afterwards at the hearing obtain permission to answer. Ibid. FAITS ET ARTICLES, ART. 225. 159 Bion 3. A default to aniver interrogstom. tur faiU et artidei apon the part of the plaintiff wiu be taken off, and the rale and interrogatories set aside, where the rule ia imed during the pendency of a former rule. Ouinming v. Dickie d The School Commistionera of Durham and mnehetUr. 4 L. 0. J. 131, S. 0. 1860. 4. The default of the defendant to answer interrogatories mr faits et articles does not conclude the case, if it is susceptible of farther tes- timony. Ovyon T. Lionaia, 7 L. C. J. 294, S. C. 1863. 6. And such party may answer the interrogatories at any time before the case is concluded. Ibid. 6. Where a party interrogated «ur faita et articles concerning a mat- ter which he should know about, answers that he does not remember, as where the plaintiff, being asked what amounts he had advanced, and what sums had been received by him, answered that he did not keep journal, memorandum or account books, and further stated, as excuse, that he had forgotten the amounts of the sums advanced or received — Held, reversing the judgment of the Court below, that such interroga- tories would be taken pro confeasia. INye & Malo, 2 L. C. J. 43 and 7 L. C. R. 405, Q. B. 1857. See Foley & Elliott, 9 L. C. R. 349, Q. B. 1C«3. 7. A director of a joint stock company is bound to respond to inter- rogatories on faita et articles which have been proposed to him concern- ing the acta of the directors. Lacroix & Perraut de Liniire, 3 L. 0. J. 136,'S. C. 1859. 8. A party interrogated on faits et ar ^eles cannot call upon the Court to decide as to the pertinency of the questions that are propocad to him, if he has not refused to answer those which he deems objection- able. Leight v. Chiay, 3 Rev. de Ug. 353, K. B. 1809. 9. A plaintiff cannot be compelled to answer on faits et articles, or the decisory oath, any question that tends to charge him with usury. ffodgsm & Harmah, 3 Rev. de L^g. 355, K. B. 1818. 10. A rule for interrogatories mr faits et articles cannot be held good against a plaintiff who is in the cause merely to authorize his wife who is the actual plaintiff, and is separated from him as to property. Mathfl'onet al v. Whiilock, 17 L. C. J. 67, S. 0. 1873. 1 1. Interrogatories sur faits et articles may be taken pro confessia without any motion to that effect. Do •.yliss et ai. & Ritchie et al. 18 L. C. J. 274, Q. B. 1874. 12. And when so taken, may supply the want of a memorandum in writing required by art. 1235 of the Civil Code. Ibid. % 160 FAITS ET ARTICLES, ARTS. 225-226. 13. In an aotfon for separation from bed and board, by reaaon of the adultery of thti husband, the admisaiuns of the husband arising from his default to answer interrogatories aw faiU et artidu will be con- ■sidered by the Oourt, if the Oourt is of the opinion that they are not the result of collusion between the plaintiff and defendant Stark d Masaey, 17 L. C. J. 242, 8. 0. 1873. 990. A party may also be summoned to answer vwa voce, in open court, or at proof sittings, or before a jury ; and his answers are then taken down by the judge or the prothonotary ; and the judge may put any other interroga- tories he may deem necessary and pertinent. If the party refuses to answer such interrogatories, the judge causes them to be written out and placed in the record, and they are held to be admitted, C. 8. L. C. c. 83, 8. 100. 1. Where the plaintiff summoned the defendant to answer certain interrogatories aur faits et articles viva voce, and the defendant wished to make use of a paper in doing so on which he had previously written his answers — Held, that he could not be allowed to do so, but must answer without reference to the paper. Coleman et al. v. Fairbaim, 4 L. C. J. 127, S. 0. 1859. 2. Where the defendant had been served with a notice to answer * certain interrogatories viva voce, and the presiding judge refused to allow him to read his answers from a paper previously prepared — Held, subsequently, considering the number of the questions put, and the number of questions in issue, that defendant might be permitted, in the discretion of the Court, to read answers prepared in advance. Ouyon v. Lionaia, 8 L. C. J. 91, S. C. 1863. 3. But where the plaintiff was summoned to answer interrogatories viva voce, and had been interrupted by the attorney of the other side, who refused ^o allow him to consult notes, and the plaintiff made a mo- tion to be allowed to answer de novo, by filing the writ and answers in question, on the ground that, owing to the confusion and embarrass- ment created by the attorney for the other side, he had been unable to answer properly, the motion was dismissed. Moss v. Douglass et al. 8 L. C. J. 92 and 10 L. C. B. 248, S. C. 1859. 4. A party, where he has been ordered to answer interrogatories sur faits et articles viva voce, may read his answers from a paper previously prepared. Fenn ds Bowker, 7 L. 0. J. 28, S. 0. 1863. (/ FAITS ET ARTICLES, ABTS. 227-231. 161 99T. The interrogatories must be drawn up in a clear and precise form, in such a manner that the absence of an answer shall be an admission of the fact sought to be proved. 998. The answers must be direct to the question, cate- gorical and precise, and free from injurious or libellous terms. Ord. 1667, art. 8. 999. Every answer which is not direct, categorical and precise, may be rejected, and the facts mentioned in the in- terrogatory declared and held to be proved. 1. A note was declared upon of one date, and a note of another date was annexed to interrogatories upon faiU et artidea, which the defen- dant did not answer. This refusal to answer cannot be received as an implied admission of the note declared on, nor can the plaintifiTs mo- tion j>ro coi\fesai9 be allowed. Manuel <& Frobiaher, 3 Rev. de Ug. 356, E. B. 1818. 2. A party interrogated who is requested to answer the question, " is the signature of this note of your writing? " may admit or deny the signature, but if he admits, he cannot add that he has since paid it, for that is a fact separate and distinct from the question propounded. Bochette Jb Laberge, 3 Rev. de JAg. 366, K B. 1817. The party who applied for the interrogatories upon articulated facts may refrain from putting them, or may, after they are answered, declare that he does not intend to avail himself of the answers ; and upon his so refraining, or upon such declaration being made, the Court cannot take cognizance of the answers, which are thereupon held not to have been given. 931. The answer of any party to a question put to him may be divided in the following cases, according to circum- stances and in the dissretion of the Court : 1. When it contains facts which are foreign to the issue ; 2. When the part of the answer objected to is improbable or invalidated by indications of fraud or of bad faith, or by contrary evidence ; 11 162 FAITB ET ARTICLES, ART. 28^1. '■■' ■ •■•¥ 8. When the fiu^ contained in the answers have 4io*ieon- nexion with each other. f. De iiUerrog. vn jwre fadendia ; 10 Tovl. 'pp. 444 et eeg. 1. Wlien % party interrogated on faiU et artidu oonfeaiea the facts charged, and atatea a distinct fact in avoidance of what he oonfeasea, the former is evidence against him, and the latter is not evidence for him ; but if the fact charged is by such party stated in his answer to be other than that which is alleged, as when the plaintiff asks whether he, the defendant, did not on a certain day receive from him £100 as a -loan, and the defendant answers that on that day he did receive £100, which the plaintiff there and then gave him, tiie answer manifestly must be taken in toto as it is given, and cannot be divided, because none of the fact charged, namely, the loan of £100, is admitted, and, consequently, his answer affords no evidence against him. Hooper v. Konig, 3 Rev. de Ltfg. 364, K. B. 1813 ; Stanfield ds Maasey, lb. 2. A party cannot be examined de novo upon new interrt^tories which relate to the same facts, or upon which he has been already interrogated. Heavy side & Mann, 3 Bev. de L4g. 364, K. B. 1813. 3. The defendant on faita et artidea had answered that " the note is in my handwriting, but it is part of a usurious contract for compound interest " — Held, that the signature to the note was proved, but the Oourt could not receive the defendant's declaration of usury as evi- dence, the question being merely, did you sign the note? Hart & Barlow, 3 Bev. de L6g. 364, K B. 1817. 4. The answer of a party aur fa/iia et articlea may be divided according 'to circumstances in the discretion of the Court, when the part of the knswer objected to is improbable. LegoMU v. Viau, 14 L. 0. J. 66, C. 1869. 6. Where, on action against the endorser of a promissory note, the Mole proof of the endorsement was the defendant's answers to interro- gatories on faita et artieUa, and the defendant sought to explain that he had endorsed the note in question, or had intended to endorse it, limply as the attorney of another— J^eM, that the plaintiff was entitled to have the answers divided, so as to reject the explanation as not hav- ing been pleaded. Seymour et al. v. WrigM etal.Zh. 0. B. 464, S. C. 1862. 8u Boehette ds Laberge, 3 Bev. de Ltfg. 366, under art. 229 ante. 7. A salt proved by ( although n< 476, S. 0. I 8. An ad] in the deed donation ai O'Brien v. i T facts is b< included ix d33. A] interrogato necessary f he is befor< is sworn or He has a tion may I party. 1. A defendi to answer int because Use] Cbmpony V, i 2. A person rogatories isz him for his ex telle etal.1 L. 3. Apartyw facts has a rigl Clulette V. Ber 6. The answers make proof against the party examined only. gory dt Henahow v. Fowler, 3 Rev. de L6g. 98, K. B. 1818. Ore- FAITS ST ABTICLBS, ARTS. 231-283. 163 7. A sale of greenbacks, to be deliTered at a future date, may be proved by admiaaions on faiit e< aiOdu without any proof in writing, although no part payment have been made. NiehciU y. Hiot, 2 R. C. 475, S. 0. B. 1872. 8. An admiaaion that the price of sale waa not really paid, aa stated in the deeds, coupled with the statement that th? deed waa really a donation and not a sale, cannot be divided. iyBrien v. jifobon, O'Brien v. Thomoi, 21 L. 0. J. 287, S. 0. 1877. The expenses of interrogatories upon articulated facts is borne by the party requiring them, and cannot be included in his taxed costs. Ord. 1667, art. 10. ,the terro- that rseit, ititled hav- S. C. d33. Any paity, on being served with a rule to answer interrogatories upon articulated facts, may demand the necessary funds to pay his travelling expenses ; but when he is before the Court he cannot claim to be paid before he is sworn or before answering. He has a right to have his expenses taxed, and such taxa- tion may be enforced by execution against the opposite party. 1. A defendant from the country who has been summoned to Montreal to answer interrogatories swr faiU et articlea cannot refuse to answer because his expenses have not been paid. The Unity Fire Inauranee Compamy v. Hiekey et al. 7 L. 0. J. 290, S. 0. 1862. 2. A person against whom a rule has been taked to answer to inter- rogatories is not entitled to demand that a sum of money be paid to him for his expenses before he is sworn and answers. Mirean ds Bo- teUe ee at 1 L. C. B. 277, S. 0. 1861. 3. A party who has answered a rule for interrogatories on articulated facts has a right to have his expenses taxed under art. 233 of the Oode. Choiau V. BmauH, 12 L. 0. J. 264, S. C. 1868. ■%■■ 164 OF INSCRIPTION FOR PROOF, ARTS. 234-235. SECTION III. OF PROOFS. § I. 0/ iTiacription for proof. 934. When the case is not to be tried by a jury, either of the parties may inscribe it upon the roll for the adduc- tion of evidence. It cannot, however, be so inscribed, before the expiration of the three days allowed for filing answers to the articu- lations of facts of the parties. If there be no articulation of facts and the case is suscep- tible of trial by jury, the inscription cannot take place until five days after issue joined. C. 8. L. C. c. 83, a. 89. 1. Where an objection was taken that the word " I " or " We " had been omitted in the beginning !of an inscription for enqu^te, and also that no consent in writing that the enqu^ie be taken under the old system had been filed, and motion was made to set aside the pro- ceedings under the inscription— JleJcI, that the irregularity had been waived by consent of the parties, as implied by their proceeding and examining witnesses, and the motion was rejected. Bonnell t. The Drvmmotidville Bark Extract Mamufaeturing Company, 16 L. C. J. 144, S. 0. 1870. 2. An inscription of an intervention on the role of enqudte ou de droit, without having regularly demanded a plea or contestation to the intervention,and without having allowed the legal delays to elapse, will, on motion to that effect, be struck. Walleott dk Bohinaon dh Johnson ii lo Ii36. The evidence is taken down in writing, either at length or in notes, according to the provisions contained in this section. C. S. L. C. c. 83, 8. 95 and 18. 987. For the purpose o2 such inscriptions, the prothono- tary must keep a roll on which the cases set down for proof are inscribed. 40 Rule of P. 8. C. 938. The majority of ihe judges, in the districte of Que- hec and Montreal, or the judge in each of the other districts, from tirne to time, may, hy a rule of practice, promulgated in open court, set apart euxk days, in or out of term, as may he deemed convenient for proceeding to proof. In the districts of Quebec and Mordreal, not less than six days vn> eaxih month must he set apart for such proof out of term. C. 8. L. C. c. 83, 8. 16. 34 Vic, cap. 4, (Que.) ; 1. Article 238 in amended so as to read as follows : " In the districts of Quebec, Montreal and Ottawa, every juridical day, except days between the ninth of July aud the first of Septem- ber, and between the twenty-fifth day of December and the tenth day of January, and days on which any term of the Court of Queen's Bench, Appeal side, or of the Superior Court, or of the Circuit Court is being therein held, shall be a day on which parties to a suit may be 1'* ' i! 1^ OF INSOBIPTION FOR PROOF, ARTS. 28S-289. oompelled to prooeed to proof ; in eaoh of the other dittriots the judge may, from time to time, bj » rale of preotiee promolgftted in, open oonrt, let apart inch daji in or out of urm M may be deemed oonvenient for proceeding to proof." 35 Via, 0. 6,(Qw.): 7. " Seotion one of the Act fHih Vietoria, e. i, is amended by etriking out therefrom the word " MontreaL" 1 8. Notwithitanding anything contained in Art 238 ai amended by section one of the Act 9ilK Viatoria, c. 4, and by the next preceding section of this Act, the following days shall be days on which, parties may be compelled to proceed to proof in all actions or proceedings in- stituted or had, at the city of Montreal, in the Superior or Circuit Court, unless any such days ate days fixed for the holding of the Oc^rt of Queen's Bendi, Appeal-side, namely : The first sixteen days of the months of February, March, April, May, June, September, October, November, December ; The first nine days of the month of July ; and The last sixteen days of the month of January." M i In the cities of Quebec and Montreal, parties can- not proceed to proof during term, except in the following oases: 1. When the case is inscribed at the same time for proof and hearing according to article 243. 2. In summary matters, when the court or judge has given special order to that effect. 8. In ex parte cases. Ihid., 8. 94. 3&yiot,c. U,(Que.): 1. "Notwithstanding any provisions of articles 239, 240, 263, 280, 284, 285, 287, 288 and 1076, aU depositions of witnesses in cases before the Superior Court, or beforo the Circuit Court, may, as regards default cases, and also by consent of the parties or of their attorneys as ne- gards contested cases, be taken at any stage of the proceedings, at any place, on any juridical day, ?r> or out of term, and may, after being so taken, be sworn to before a commissioner of th» "uj^rior Court." 1. During the sittings of the Superior Court in Montreal, a party may be compelled to proceed at enqudte sittings. The MoUom Bank tk (!lcnver$e, 20 L. C. J. 302, S. C. 1876. or iNSOBipnoN fob PBOor, abts. 289-240. 167 9. In the abMiiM of an jthing to the oontnurj in the Rules of Pnw* tioe, or of taj order oonflning enquAte daye in term to OMee tx parU, the ooort hM no power to prerent » perty from proceeding with » oon- tetted oaae daring the enqaAte dayi in term. La Banqut du Pevpk t. Boy et al., 2 L. 0. R. 239, S. 0. 1862. SMO. In any case wherein' it is established upon oath, that a witness is about to depart from Lower Canada, and that thereby one of the parties may be deprived of his tes- timony, one of the judges of the court may, at any stage of the proceedings after [service of summons,] receive the depo- sition of such witness, in presence of, or after due notice to, the parties ; and such deposition has the same effect as if it was taken at proof. The same thing may be done, after issue joined, in cases of evident necessity, when it is established upon oath that the witness is prevented, by serious illness or infirmity, from attending before the court. If the witness is still alive and in the province, and his attendance can be procured, at the time of the proof being taken, he must be examined anew in the ordinary time and manner, if it be required by either party. C. S. L. C. c. 83, «.101. See SB V. e. 17, «. 1 (Que-), under Art. 239 wnte. 1 . Motions for leave to examine witneases about to leave the Pro-vinoe are exempt from the provisions of the Rules of Practice which declare that, in the computation of time, no Sunday or binding holiday shall be reckoned, and a notice of such motion served on Saturday is suffident for the presentation of such motion on the following Monday. Bymfi et al. V. FUzsimmotu d: Fither, 10 L. 0. R. 383, S. C. 1860. 2. In a matter of urgency, as when the witness is about to leave the country, notice given in the evening for the following morning is suf* ficient. MoUon v. The Moitie Company d: DvfnuM, 13 L. 0. J. 266l 8.0.1869. 1 1 I 3. A defendant cannot be compelled to appear before the return di^ to show cause why certain witnesses about to leave the Provinoa should not be examined. Mali^ne d: Tate, 2 L. 0. R. 99, Q. B. 1861. i ^; 168 OF INSCRIPTION FOR PROOF, ARTS. 240-248. i. An ftpplioktion to be allowed to ezAmine • witneM who ie about to depart will not be granted if the record la before the Court of Re- ▼lew upon an inacription for reviaion of an interlocutory judgment. 8t. Jemmts v. de Montigny, 12 L. 0. J. 343, B. 0. 1868. 941. The court or judge may, if deemed advisable, and without any commission or other formality, order the proof to be taken, or any person, even if he be a party, to be ex- amined either under the decisory oath, or upon articulated facts, or otherwise, at any place where sittings of the Superior Ck)urt or of the Circuit Court are held, before any judg'> at such place. And in such cases after the record has been four days in the hands of the prothonotary, or clerk, at the place to which it has been sent, the parties may proceed as if the case were there pending. Ibid. as. 24, 154. See art. 300, post. 1. Where a motion waa made to open an enquAte before a private indiTidnal in another district the court held that it had no power to delegate an enqudte to any one but to a judge. MeVittie da Ousting ds Clarke, 5 R. L. 46C, S. 0. 1874. 949. A copy of such order is transmitted to the protho- notary or the clerk of the court at the place mentioned, together with such part of the record as may be necessary ; and the prothQuotaiy or clerk may thereupon take the necessary proceedings to compel the witnesses or the parties to appear at the place named on any proof day, or any day, fixed by the judge, on which a judge will be present at such place, and in the cases of this and of the preceding article the rules contained in articles 248, 249 and 480 apply. Ibid. §3. 943. Any party may, either in his declaration or in any other pleading, or by a notice served upon the opposite party, declare his option that the case shall be inscribed at the same time for proof and for final hearing immediately after proof; and in such case the cause cannot afterwards be inscribed otherwise. Cases may be inscribed for any day, in term or during OF INSCRIPTION FOR PKOOF, ART. 243. 169 proof sittings, set apart by the court for that purpose, or if no such days have been set apart, then for any day whatever, in term or during proof sittings. Cases inHcribed for proof and hearing have precedence, on days appointed (or that purpose, over those inscribed other* wise and fixed for such days. The days set apart in term or during proof sittings, as above provided, are deemed to be consecutive ; and if proof and hearing in any case commenced upon one of such days is not completed on that day, it may be a(^oumed to any oth( r day thus set apart, and judgment may be rendered on any such day, either in term or in vacation. The special days for proof and hearing are fixed or changed by rules of practice made and promulgated in the districts of Quebec and Montreal, by a majority of the judges resid- ing in the district, and, in any other (^'strict, by the judge holding court therein. C. 8. L. C, c. 83, 88. 19, 20, 21, 22, 23. 1. TTnder the terms of the Slat Rule of Practice it is necessary that in the inscription upon the rSle de droit for hearing upon the plead< ings the day upon which such hearing will take place be indicated, as well as in the notice thereof, without which such inscription will be declared null, and the case struck from the rOle. Evanturel et vir v. Evanturel, 14 L. 0. B. 151, S. 0. 1864. 2. A party has no right ^to| inscribe for enqudte and merits for a day certain, even upon giving notice to the adverse party, unless it be by consent, and upon filing such consent the case will be fixed by the court. Lemimx v. Brochu, 16 L. 0. R. 48, C. C. 1865. 3. Where a party has inscribed a case generally on the merits he cannot afterwards say that he only intended to inscribe it in part, and a final judgment on the whole case will not be disturbed. Kathan & Kaihan, 1 L. C. L. J. 107, S. 0. R. 1865. d. Notice that a case has been inscribed on the rOle for enqudte and merits, given within the prescribed delay before the day fixed is sufficient, provided the case is actually inscribed before the day fixed. Dionne et al. & ValUau etal.2L. C. L. J. 112, Q. B. 1866. 5. At least eight days' notice must be given of an inscription for en- quete and hearing at the same time. TnmMay v. D'AubrevUle, 17 L. C. J. 76, S. 0. 1873 ; ShuUr v. Ouyon, 6 L. C. J. 43, S. 0. 1860 ; Kent v. 11 170 OF 8UMX0NINO W1TNB88K8, AKM. 24S-S44. w ■ .? ! »', OraiwotU, 8 L. 0. J. 12, 8. 0. 1868 ; Fom •< at t. 0b^,8L. 0. J. 198^ 8. 0. 1864 ; Attain r. Mortimtr, 17 L. 0. J. 168, 8. 0. R. 1878. 6. And tk liinpl* rvoeipt of oopy of raeh iiuoription is not a wtiTtr of the right horaafttr to obJMt to the •hortnoM of th« notios. Attain T. Mortimf, 17 L. 0. J. 168, 8. 0. R. 1873. 8m pott, art 463 for notioo of inaoription in Uw or upon the merits ; and anffl, art. 230 for notice of inscription for proof. 7. To inscribe for enquAte and final hearing on the merits the party so inscribing must hare notified his adversarj of his option so to in- scribe, previous to the inscription for enquMe alone. Wood r. Stoin- bum*, 14 L. 0. R. 163, 8. 0. 1864. 8. The option of a party that the case should be inscribed for proof and hearing in terms of article 343 is suflBdently made by senrice on the opposite party of an inscription upon the r(Me de droit for enquete and hearing on the merits at the same time. Simpion et ai. t. Bowie et al. 17 L. 0. J. 38, 8. 0. 1873. 9. A party inscribing for enquete and merits at the same time will be sustained in his option although the other ]mdy has inscribed for en- quete in the ordinary way. Bourgoin et al v. The Montreed AO. dsQ. By. dh Hon. A. B. Angere, 1 Legal News 131, 8. 0. 1878, 33 L. 0. J. 43. 10. An inscription for proof and hearing on the merits of an excep- tion of prescription and sale of litigious rights is irregular, it being a partial inscription, made without leave of the court. LionaiadiOvyon, 11 L. 0. R. 73, Q. B. 1860 ; Mangeau v. Turmne et al. 6 L. 0. R. 476, 8. 0. 1866. § 2. Of sumTnoning tuitTiesaea. 944. Witnesses, if they do not appear voluntarily, arc summoned at the instance and diligence of the party requir- ing their attendance, by means of a writ of subpoena, a cupy of which is served upon them one clear day at least before that fixed \br their examination, the delay being increased at the rate of one day for every additional five leagues, when th** dittui.i e e7;"^€ed8 five leagues. C. P. OerUvey 181 ; aP.C.9M', a P. X. 134. 1. Where ;,he prothonotarT refused to allow the plaintiff bailiff*! fees in the taxation of his bill of costs, on the ground that he had inserted mor* than four names in the original subpoena, and the plaintiff made OP SUHXONINO wiTMiasis, ARia S4i 248. 171 moUon to ntIm Um taution~J7«M, that th« motion muat b« gn^Ud, M th« inMiiion of mora tlum four iuun*i ooold not prajudlo* Uw partjr in any wbj. Couittard ▼. L*mUu», 9L. 0. R. 393, 8. 0. 1859. Mff. WitneM->H nuy be summoned either to decUre what they knov-, ov io noduoe some dooament in their pos- session, or to do both. 1 Starhie on Eind., 87 ; 0. 8. 0, o. 79, ». 4. ; a & L. C. e. 79, «. 8 ; a P. L. 189, 140, 141. Whai-e 111* pUdntiff brought action to Mt Mid* » d**d of tnuuf*r ob> taincd from bar by fraud, and fllod a* an azhibit a oopy of th* tram- fer pap*r, o*rtifi0d to b* luok and to b* *zaot by th* lawysr who dr*ir the original, and alao brought up th* lawyar at enquite to prov* th%t the *xhibit waa a tru* oopy. — HM, that th* English ml** of «Tid*no* requiring notio* to produo* had not th* fore* of law in Low*r Canada, and that th* following articl** of fact aubmitted to th* d*f*ndant by th* plaintiff, via: " la it not a faot that th* original papar-writing, ■al* and aaaignmant which ia B*t forth in th* plaintiffs' d*claraiion is now and has b**n aino* th* *x*cution thereof in th* d*f*ndant's pos- session, and that the paper-writing fil*d by th* plaintiffs as their exhi- bit No. 12, is a tru* and exact oopy thereof," were a sufficient notice to defendants that plaintiffs would produce a oopy of the said paper- writing at enquite, and then prove it to be true, and also a sufficient notice to the defendant to produce the original thereof if he thought fit. Herrimanet vx. is Taylor, 9 L. 0. J. 263, Q. B. 1866. 946. Any person residing in Upper Canada may be compelled to appear as a witness, if the court or judge deems it necessary ; provided an action for the same cause be not pending in Upper Canada. 0. 8. C. c. 79, sa. 4, 6, 6. 947. The witness in the case mentioned in the preceding^ article cannot be summoned without a special order granted by the court or judge, if deemed necessary, and such order must be mentioned upon the subpcena Ibid 8. 7. Subpoenas are served in Lower Canada by a bailtflT of the jurisdiction in wbiidi the witness then is, or accord- ing to the provisions of Mticfe 461, and in Upper Canada by any person whatever, who U(ii«i return an affidavit of such service. Ihid «. 10. 8ee 38 Vic. c. 17, a, 1, under art. 48, ante. "^ 172 OP SUMMONINO WITNESSES, ARTS. 249-250. 949. Any witness, duly summoned, who, without suffi- cient cause, fails to attend at the place and time appointed, may, upon a rule served upon him, be condemned, by the court or judge presiding at pioof sittings, to a fine not ex- ceeding forty dollars, to be recovered, for the use of the crown, in the same manner as any other sum awarded by judgment, independently of any recourse the party who summoned him may have for damages caused by such de- fault, and of imprisonment for contempt, if it lies ; pro- vided that at the time he was served with the subpoena a sufficient sum was tendered to him for travelling expenses, at the rate usually allowed by the court of his domicile. If the person summoned to appear as a witness resides in Upper Canada, he can only be punished for his default by the court within whose jurisdiction he resides, upon a certi- ficate transmitted by the former court of his default to ap- pear according to the foregoing provisions. G. S. L. G. c. 83, 88. 104, 109 ; G. S. G. c. 79, 88. 8, 9 ; G. P. Geneve 182 ; G. P. C. 263; a P. Z. 135. 1. In order to hold a witness for default for non-appearance, it is necessary to offer him his expenses going and returning. Paulet v. Lariviere, 3 R. L. 446, S. C. 1871. /_.;/, i'^H^ 2. A rule of contempt will not lie unless it is proved by affidavit of personal service, tender of reasonable expenses, and wilful disobe- dience. Seaton v. Boston db Egan, 6 L. O.J. 334, S. 0. 1861. 3. It is not necessary to prove the personal service by affidavit, nor that the original writ was exhibited to the witness, nor that tender wa:; made of fees and expenses. Joseph v. Joseph, 8 L. C. J. 41, S. C 1863. 4. Writs of protection will be issued upon cause shown to protect a witness from arrest on civil process, such protection to be within the discretion of the court. MiUer v. Shaw et al. 16 L. C. J. 218, S. 0. 1871. 930. Any person who is present in the room in which the proof is being taken may be examined as a witness, and is bound to answer, under the same penalties as if he had been regularly summoned. , ♦ ■ i t*- > OF SUHHONIKO WITNESSES, ARTT 251-252. 178 Slffl. Any party to a suit may be subpoenaed, examined, cross-examined, and treated as any other witness ; but his evidence cannot avail himself ; [the adverse party may how- ever declare, before he closes his proof, that he does not intend to avail himself of his testimony and in such case it is deemed not to have been given.] [The answers given b}' a party thus examined as a wit- ness may be used as a commencement of proof in writing.] a 8. L. a, c. 82, 8. 15 ; c. 83, 88. 100, 108, § 11 ; 12 L. C. R o"u, ,.-,a I , '.'':,■,■;■'. " • ,-; •■ -. ■' .,M'' .f - ip.T iff i 1. The answer of a party to interrogatories surfaiU et artidea has a retroactive effect, and, as a commencement de preuve par icrit, will le- galise oral evidence j previously produced. Beaudry v. Ouimet etdl.,9 L. C. J. 158, S. 0. R. 1865. ; ' 2. The evidence of a party in a case who has assigned during its pendency can be taken on behalf of the assignee, who has taken up the instance. MeFee v. Bowie d Brovm, 13 L. 0. J. 335, 0. 0. 18C9. 3. An insolvent may be a witness for the assignee, even when the in- solvent himself was a party before the assignment. Barthe esqual. db MUkt, 3 R. L. 525, C. C. 1872. 4. Action was brought against the defendant as having been a secret partner in a firm to which the goods were sold — Held, confirming the judgment of the Court below, that the evidence of one of the other partners was inadmissible on behalf of the plaintiff, and was accord- ingly rejected. Chapman v. Maason, 2 L, C. J. 216 & 8. L. C. R. 225, Q. B. 1858. ,, • . ,. 5. The evidence of co-defendants who have pleaded separately may be taken separately, the one for the other. Borthvnck v. Bryant et al, 5 R. L. 449, S. 0. R. 1874, & Close v. Dickson, 4 R. L. 141 & 17 L. C. J. 59, S. C. 1874. The Bank of B. N. A. v. Cuvillier et al., 4 L. C.J. 241, Q. B. 1869. David v. McDonald et al, 11 L. C. R. 116, S. C. 1860, 393. Relationship, or connection by marriage, except that between consorts, and interest, are not objections to the competency of a witness, but only to his credibility. Upon the improbation of an authentic deed, the testimony of the notaries, attesting witnesses, or other functionaries who witnessed the deed may be received. a S. L. a c. 82, 8. 14 ; 4 X. C. R 228. 174 OF THE EXAMINATION OF WITNESSES, ART& 252-254. n li- ft- 86 Vibt'o. 6. (Qw.) " 9. Nevertheleu, if eonaorto ue separated ai to property, and one ■of them, as agent, has administered property belonging to the other, the consort who has so administered may be examined as a witness in relation to any fact connected with such administration ; provided the court or judge shall, in view of the circumstances of the case, deem it just and advisable to order such examination. Whenever such ex- amination shall be allowed, it shall be as unrestricted ao would have been that of the other conrort, whether as regards the admissibility of verbal evidence or othei«trise." 1. The provisions of 35 Vic. c. 6, s. 9 (Que.) do not mean that a party may examine his own wife as a witness when she has had the ad- ministration of his property, but that he may examine the wife of the adverse party in such case. Foisy v. Lefebvre, 4 R. L. 664, S. C. 1872 ; Brush V. St^hens db vir dh Stephens d: vir, 17 L. 0. .J. 140, S. 0. 1873 ; Lareau v. Beaudry, 22 L. 0. J. 336, S. 0. 1878. 2. The husband may be examined by the defendant where the wife declares that it is he manages her property. Johnson v. Martin, 5 R. J. 336,8.0.1872. 3. In commercial cases, a solicitor in law may be a witness for a party for whom he transacted. Mdaneon v. Beaupri, 6 B. L. 609, S. 0. 1874. 358. If the person to be summoned as a witness is in prison, the party requiring him may, upon petition, obtain a writ of habeas corpus ad testificancki/ni, ordering the gaoler to bring him before the Court to give his evidence. Lan- guedoc v. Laviolette, 18 April, 1854 ; 1 Pig. 227. < § 3. Of the examinaiion of wUnesses. 994. Any party may demand that during the examina- tion of any witness, the other witnesses should be out of the room in which the examination is taken. C. P. C. 262 ; 1 Pig. 280 ; Ord. 1667, tit. oaxii. art. 15. " 1. An order that all the witnesses withdraw from the Court-room except the one under examination, is not demandable of strict right. Ougy V. Donoohue, 11 L. 0. R. 421, Q. B. 1861. , , .^ OF THE EXAMINATION OF WITNESSES, ABTS. 255-262. 175 9M. Before the deposition of a witness can be taken, he must swear b^ore the judge or the prothonotary to tell the truth, or in the case of a Quaker, the word swear is re* placed by the words solemnly, sincerely, and truly dedari and ajfflrm. QSM. TVf* form of oath and the manner of taking it may be changed, according to the religious creed of the witness, in such a manner, however, as to bind him to ddblare nothing but the truth. 1 Pig. 262. 397. Any witness refusing to take the oath or affirma- tion is deemed to refuse to give evidence. 1 SiMrkie, 91 ; C. P. X. 137. ■' ' ■ - ■' -' ,;■:'■>- ;i- ", ! ^ .. I I , - ■^.-, -■, • 858. A witness who is present cannot refuse to give evi- dence, under pretext that the necessary amount to defray his travelling expenses has not been paid to him. 399. Before the witness is admitted to be sworn he may be examined by either of the parties as to his religious be- lief; and he cannot make the oath or the affirmation, nor give evidence, if he does not believe in God, and in a state of rewai'ds and punishments after death. 1 Starkie, 21, 94. 360. No person can be a witness who does not know the importance of an oath, or who is not in the exercise of his mental faculties. C. P. C. 285. 361. [Deaf mutes, who can read and write, may be ad- mitted as witnesses, their oath or affirmation and their answers being written down by themselves.] 1 Pig. 283 ; 3 Bioche, No. 428. 363. No bailiff who has served the writ of summons in any suit or action can be a witness in support of the plain- tiff's demand, except in respect of such service. C. 8. L. C. c. 83, 8. 168. ¥ *f I if 176 OF PROOFS TAKEN BY A JUDGE, ARTS. 268-266. § Of proofs taken by a judge. 963. In contested cases, the witnesses are examined in firesence of a judge, the opposite party being either present or duly notified, and the judge may ask the witnesses any questions he may deem necessary. He takes down or causes to be taken down in writing, under his direction, notes of the material parts of the evidence, and of all objec- tions insisted upon by either of the parties, and of his de- cision thereupon. G. S. L. G. c. 83, s. 95. 34 Vic, 0. 4, (Que.) • ; 2. " And the Judge may order as many cases to proceed before him at the same time as in his discretion, he deems expedient," See also 33 Vic, a 18, s. 1, under Art 239, ante. And 35 Vic, c 6, ss. 10, 11, 12, Art 398, post, as to evidence taken by stenography. . . , r 364. The notes of evidence are read, and, if necessary, explained to the witness, who may make the necessary addi- tions or alterations in order to express correctly the material parts of his evidence ; they are then signed by him, if he can write, if not, that fact is mentioned ; they are finally signed by the judge, and constitute and are held to be the evidence of the witness. Ord. 1667, tit. 22, AH. 16 ; C. S. L. G. c. 83, 8. 95, § 2 ; G. P. C. 272, 274. ^^^^ 96tS. If one of the parties requires it, either verbally or in writing, the judge himself is bound to take down the notes of the evidence and of the objections, as mentioned in aHiele 263, and the proihonotary afterwards mxikes a fair copy thereof, which is certified by the judge and deposited i/n the record and is held to be the true record of the evidence. C.^.X.C.c. 83,8. 9*, §3. 34 Vic, c 4, {Que.) _ .. . , .^_ •-*.. "3. Article 265 is hereby repealed." . •>• ^ 366. The judge takes down, or causes the prothonotary to take down, notes of all admissions made verbally by the OF PROOFS TAKEN BY A JUDOE, ARTS. 266-270. 177 parties ; and such notes, signed by the judge, make proof in the same manner as if they were signed by the parties. Ibid. 8. 97. 967. The witness must first be asked and must declare his name, surname, age, quality or occupation, and domicile. Ord. 1667, tit. xxii., aH. 14 ; C. P. Geneve, 193 ; C. P. C. 262. 968. The opposite party may establish, by a preliminary examination of any witness, or in any other manner, what- ever grounds he may have for objecting to such witness. Ord. 1667, tit. xxiii., aH.2', I StarUe, 211 ; C. P. G. 289. 369. A party cannot impeach the credit of a witness pro- duced by himself, but he may prove by others the contrary of what such witness has stated, or, by leave of the judge, he may prove that at other times he has made a statement inconsistent with his present testimony ; provided, in the latter case, the witness be first questioned upon the subject. 1 Cotichot, 90 ; 1 Stcurkie, 215, et aeq. ; 2 Pcywell, 379, 380 ; Contra : MSthot v. Lahnde dit Ganivcu, 11 L. G.J. 301. 1. Copies of depoBitions of witnesses examined in another case may be filed in a cause proceeding at enqudte, for the purpose of discredit- ing a witness examined therein. O^Coniwr v. Brown et al. 12 L. C. J. 28 & 4 L. 0. L. J. 42, S. 0. 1866. 2. They may be used by the witness to refresh his memory. The, City Bank t. Coles & The City Bank & Boawell, 2 L. C. B. 16, S. C. 1861. 3. A witness cannot be contradicted on collateral matters. Cowriney V. Bowie et at., 17 L. C. J. 47, S. C. 1873. 970. Witnesses are examined by the party producing them, or his counsel, but only touching the facts in issue ; and the questions must not be leading, unless the witness evidently attempts to elude the question or to favour the other party. 1 8tarUe, 169, 170 ; 2 PoweU, 376-9. ' •• 12 178 OF PROOFS TAKEN BY A JUDGE, ARTS. 270-273. M 1. Where the plaintiff, hiou^lf an advocate, contested the opposition of the opposant and, though represented by an attorney ad litem, wished to conduct the examination of the witnesses himself — Held, maintaining the objection of the adverse party, that, having appeared by counsel, the examination could only be conducted tlurough such attorney ad litem, Banuay A David ds Walker ds Ramiay, 6 L. 0. J.. 295, S. 0. 1862. ' 1 Starkie, 192-8 ; 2 Powell, 338. •.' I Greenleaf, 645 ; a P. L. ISe. -v^. rt-r,- j. .i\ 1. Where an attorney ad litem is witness for his client, and objection is taken to a question put to him, he cannot himself appear before the court to maintain the pertinency of the question, but his client must be represented by another counsel. Angers t. Loaeau et vir de Loz^u et vir, 12 L. C. J. 214, S. C. 1868. 2. In a qui tam action, the defendant may refuse to answer the ques^ tions put to him on the ground that any answer he would give would have a direct tendency to criminate him. Burton t. Young et al. 17 L. 0. J. 379, S. C. R. 1867. 3. A witness's knowledge of the law enabling him to decline answer* ing questions is always presumed. Beg v. Coote, 18 L. C. J. 103, P. c. 1873. :_,;:.", _',,. 4. A witness is not liable to an action for slander based on words uttered by him as a witness. Rochon \. Fraser, 3 L. C. B. 87, S.. C. 1851. 975. He cAnnot be compelled to declare what haa been revealed to him confidentially in his professional character as religious or legal adviser, or as an officer of state where public policy is concerned. Parfait Notaire, 83 ; 1 Starkie, 184-5-6 ; 2 PoweU, 60 ; 1 ChiUy'8 Arch. 67 ; 1 Pig. 278. ,.>"■- >* ■','■■ 180 OF PROOFS TAKEN BY A J47DOE, ART. 275. i 1. Held, oonfirmiog the judgment uf the court below, that the pro- yinoial woretary could not be compelled to produod official document! connected with the sffiun of state, if their production woald be injuri- oua to the public service, of which he was the sole judge, and the power of the secretary of n'>Me to withhold such documents was not waived by the fact that a copy oi the paper in question had already been delivered to one of the parties by the assistant secretary of state. Ougy ▼. Ma- guirt, 13 L. 0. R. 33, Q. B. 186a * 2 An advocate or attorney cannot refuse to declare in an answer to a writ of attachment by garnishment, what money or effects he has in his hands belonging to the defendant, on the ground that his doing so would be a betrayal of professional confidence. McKtmit et al, v. McKenzie et al. 9 L. 0. J. 87, S. 0. 1864. 3. A physician cannot refuse tc disclose information acquired by him confidentially in his professional character. Brown v. Carter, 9 K 0. J. 163, S. 0. 1865. 4. An attorney ad litem is not obliged as a witness to disclose what has been communicated to him profesoionally by his client. Fwtyth et al. T. CharUhnia d: Forsyth etai. di Lefebvre, 12 L. 0. J. 264, S. C. 1868. 6. But such communication is not privileged where the attorney is himself a party to the transaction as well as adviser. EthUr v. Be sued out by the witness against the opposite p 'rty condemned to pay the expenses of such wit- ness, provided that no execution has already been sued out by the party who obtained the judgment, or that the amount allowed the witness has not already been paid to such party if ■*' K i if . ^ V, ■ , 182 OP PKOOFS TAKEN BY A JUDGE, ARTS. 281-288. or his attorney, in virtue of a duly receipted bill of costs, a P. Qenhve. 200 ; C. 8. L. C. c. 83. ». 153. ,'1. The attorney it not reiponiible for the indemnity due to the witnessee aummoned by him at the requeat of hi* client. Laroelu t. Holt et■> • . 43ryal, 4 L. C. J. 128, S. 0. 1869. OP EXPERT tm OF VIEWERS AND EXPERTS, ARTS. 320-322. 193 6. In oMM of amendment of the declaration to make it agree with the fact proved, the coeta are at the discretion of the court Frothing- ham ▼. Gilbert, 3 L. C. J. 136, S. 0. 1868. 7. On an opposition to a judgment, after argument, certain receipts were found, showing that the whole of the amount had been paid. The opposant then asked to be entitled to amend on payment of costs. Motion granted. Johnston v. Watts <6 WattM, 1 L. C. L. J. 122, S. C. 1866. 8. If a copy be taken from a register in the archives of the court by the prothonotary, and he has omitted to sign the certificate, the court will direct it to be perfected. De Veau dt Shephard, 2 Rev. de Lig. 336, K. B. 1820. See arts. 63, 118, 142 ane«. SECTION IV. OF EXPERTS, VIEWERS, REFERENCES IN MATTERS OF ACCOUNT, AND ARBITRATORS. 391. Before deciding upon the merits of the case, the court may, if necessary, order an extraordinary investigation in the cases hereinafter mentioned, either before, during, or after the proof. C. 8. L. C. e. 83, s. 81. 1. Where a question arose concerning; the signature to a promisscy note, and motion was made to refer the matter to experts — Held, that the twelfth title of the Or<^ance of 1667 was in force in Lower Can- ada, although not employed for many years, and that the inobservance of a law or ordinance for any length of time did not effect its abroga- tion. Lwd V. Xaurtn et al. 16 L. 0. R. 462, C. C. 1866. .^■.1: ^ § 1. 0/ viewers and experts. 399. Whenever the facts in contestation between the parties can only be verified by view of the object or pre- mises, or whenever the evidence produced by each party is contradictory, or when the nature of the contest requires it, the court may, of its own accord or upon the application of either party, order the facts to be verified by experts and persons skilled in the matter. 13 If- 194 OF VIEWERS AND EXPERTS, ARTS. 322-325. The order for experts must specify- clearly and distinctly the matters to be veri^ed. 1 Pig. 298 ; Poth. Proc. 44 ; a S. L. a c, 83, 8. 81 ; C. P. G. 302. 1. Experts may be appointed for the purpoae of examining accounts and ascertaining their correctness, and may furnish a balance-sheet of the expenses and receipts of the business. Taplin & Becket et al., 15 L. C. J. 26, S. C. R. 1869. 2. In an action of damages for trespass and for cutting timber, etc. on the property of the plaintiff, the queition turned upon the bound- ary line, the property of the one being in Ontario and the other in Quebec. The court oidered an expertise to establish whether the tim- ber alleged to have been cut was so cut on one side or other of the line — Held, reversing this judgment, that the court had no power to name experts for the piurpose mentioned, the line to be established bting in the province of Ontario. Skead & McDonnell, 3 R. C. 43, Q. B. 1872. 3. A motion to refer a caxe to experts, before any proof has been adduced, will be rejected, as the court cannot be relieved of the case without necessity. Rankin v. Lay, 6 R. L. 226, S. 0. ; Simons v. Bougie, 5 R. L. 472, S. C. 1874. 393. [The investigation must be made by three experts agreed upon by the parties, unless they agree to its being made by one only.] Ord. 1667, tit. 21, Arts. 9, 13 ; 1 Bor- nier, 172, G. P. G. 303 ; 1 Couchot, 88. ]. Under the Code, the appointment of tuoo experts only is irregular, and their report though unanimous, will be rejected. Ouimet v. Pieotte, 4 H. L. 702, 0. C. 1872. 394. If, at the time of the order for experts, their ap- pointment has been agreed upon by the parties, the order records such appointment. 1 Couchot, 88 ; C. P. C. 304. 395. If the experts are not agreed upon by the parties, the court fixes a day on which the latter must attend be- fore the court or judge in order to appoint them ; and in de- fault of an order to that effect either party may summon the other to attend as aforesaid, within reasonable delay, for the purpose of such appointment. Ord. 1667, tit. 21 art. 9 ; Pothier, Proc. 44 ; C. P. 0. 305. 39( pointe perts i int; others prescril 306—3 397. Relat siveJy ; Intim Enmij Subor Intere Being the parti Being j of a part; And, g witnesses 1. A pen been reject to on a nen 398. have the tion callii art. 10. 399. li sworn or t to attend be named Pothier, 46 330. Tl ^nvestigat: K OF V'.EWERS AND EXPERT8, ARTS. 326-330. 196 de- mon play, art. 396. [The parties are bound to attend on the day ap- pointed, and if they then fail to agree upon the three ex- perts the court appoints such experts for them . In the case of any of the experts being validly recused others are appointed in their stead, in the manner above prescribed.] 0?'d. 1667, tit 21, aH. 9, Pothier, 45, C. P. C. 306—309. 39T. The grounds for recusing an expert are : Relation or alliance, to the degree of cousia-german inclu - sively; Intimacy r ,_. ,>■■,.., ..Jv/w .,] ', :i Enmity; ,;•: ' ,.., I Subornation; , ' ./ ' , - ,,,.. ^,, i Interest; ; , . . f Being in the domestic service or other employ of one of the parties ; Being a party in a similar suit, or the attorney or agent of a party in the case ; And, generally, the grounds of exclusion applicable to witnesses. Pothier, Proc. 45 ; C. P. G. 310. 1. A person who has acted as expert in a case, and whose report has been rejected, cannot act a second time if his appointment be objected to on a new expertue. Axuilaire v. Low, 6 L. 0. J. 223, S. 0. 1861. 338. As soon as the experts are named, either party may have the order served upon them, together with a requisi- tion calling upon them to be sworn. Ord. 1667, tit. 21 aH. 10. 339. If any one of the experts neglects or refuses to be sworn or to act, either of the parties may summon the other to attend before a judge in order that another person may be named in the proper manner to replace such expert Pothier, 48, C. P. C. 316. 3S0. The experts, before taking any proceedings in the investigation, must, on pain of nullity, be sworn to perform 1 196 OF VIEWERS AND EXPERTS, ART. 330. I their functions with impartiality and to the best of their ability. This oath must be in writing, and be certijJed by the per- son who administers it. FORM No. aO. In connection with article 330. The oath to be administered to Experts. I, A. B., of the parish of , in the county of " (if there he two or more per- sona to be sworn, say, I, A. B., of , and I, C. D. of ) do make oath and swear, that in the pres- ence of E. F., the plaintiff, and 0. H., the defendant, named in an interlocutory judgment pronounced in (here insert the name of the cov/rt) in the district of , bearing date the day of , or in their absence, after due notification shall have been given them, to attend at a place to be designated, and on a day and hour to be specifically named to them respectively, I will faithfully proceed as an expert to the view and exami- nation required by the said interlocutory sentence ; and that I will truly report my opinion in the premises, without fa- vour or partiality towards either of the said parties : So help me Ckni FORM No. 31. In connection with article 330. Certificate to be mxide amd signed by the Commissioner, o/ the due administration of the Oath. Sworn before me, Superior Court in the district of , a commissioner of the , (or sub- delegatt (he case at of 1. Ad« sworn, ii jected unl have beei S. C. 1861 331. : thonotan before an person in a s. L. c 339. A necessary tary has < 10. 333. which thej the parties distance fJ not exceed! tional five [ 1. A motiJ oi the partie^ V. Cowan, 7 18, Q. B. 18^ 2. t: the parties, and be set aside. 3. When tj berating, not| V- Frigon, 9 or VIEWERS AND EXPERTS, ARTS. SS0-3S3. 197 the sub- delegate authorized by the commission, or the judgment, aa the cnae may be, hereunto annexed, cw ths case may be) at on the day of the month of , in the year 1. A declaration in the report of arbitrators that they have been sworn, ii not of itielf proof of luoh faot, and the report will be re- jected unleM a r<'rtificate be filed from the person before whom they have been sworn. Joseph v. OsUU, 6 L. 0. J. 40, & 11 L. 0. R. 499, S. C. 1861. 331. The oath must be taken before a judge, or the pro- thonotary, before a commissioner of the Superior Court, before an expert already duly sworn, or before any other person indicated in the order for experts. Poth. Proc. 46 ; C.ii. L. C.c. 83,88.82-3. 339. A copy of the ordt;r for experts, together with the necessary papers, must be given to them, after the prothono- tary has taken a receipt therefor. Ord. 1G67, tit 21, art. 10. :: .-,- ■ ■ 333. The experts are bound to fix the time and place at which they will proceed with the investigation, and to notify the parties, allowing a delay of at least three days when the distance from the domicile of the parties respectively does not exceed five leagues, and one day more for every addi- tional five leagues. Pothier, Proc, 46. 1. A motion to set aside a report of experts, on the ground that one of the parties had nof been notified to attend, was granted. Brodie et ux. V. Cowan, 7 L. 0. J. 96, S. C. 1852 ; WarcUe v. Bethtim, 2 L. C. L. J. 18, Q. B. 1866 ; Waters v. Veronneau, 6 L. C. R. 482, S. C. 1866. 2. Tf the experts are ordered to visit works in the presence of the parties, and they make such visit without the parties, their report will be set aside. L'Abbi v. Ritchie, 3 Rev. de L^g. 358, K. B. 1818. 3. When two of the arbitrators change the place of meeting or deli- berating, notice of such change must be given to the third. O'Connell V. Frigon, 9 L. 0. J. 173, & I L. C. L. J. 66, S. 0. 1865. ^ 198 OF VIEWKRH AND EXFtUlX, AKT. 334. K SS4. The ex[)ertH must hear thu pailieH and the witneHsuH in accordance with the tenuH of the order naming them ; each of them is authorized to adminititer the oath to the witneHs or the parties, as the case may be, and the witnesses are summoned to attend before the experts, 'whatever may be the distance. C. 8. I. C. c. 83, e. 83. FORM No. 8«. In connection with article 834. ' • ' ■I The oath to be administered to vntneases. T , (insert the name, profession or qvMlity and place of residence of the vUness,) do make oath and swear that I am not related or allied to, or a servant or domestic of £. F., the plaintiff, or G. H., the defendant, and that I am not interested in the event of the cause depending between them, (o/, if witness says he is, state in tvfiat degree he de- clares himself to he related or allied to either and which of the parties, or what sitvMtion he Iwlds in the family of either of them) and I do also swear that the evidence which I shall give between the said parties before the experts {or arbiters or arbitrators, as the case may be,) named in the interlocu- tory judgment pronounced by (here insert the nams of the court), in the said cause, shall be the truth, and the whole truth, and nothing but the truth ; so help me God. 1. On a motion to annul and set aside a report of arbitrators — Held, not sufficient for the arbitrators to report, in the terms of the rnlo by which they were appointed, that they had examined the proceedings of record in the cause, examined the witnesses of the party under oath, and deliberated, but such report must allege that the parties had re- ceived due notice of the meetings of the arbitrators, or were heard in support of their allegations, and a report omitting to allege such notice of meeting will be annulled and set aside on motion to that effect. Brown et al. & Smith etal. 6 L. C. J. 126, S. 0. 1866. in writii perts, an or allied they are suit. It I. Whei fendant tm witnesses capacity to •ec. 84, th< etal. y. Cu: 2. A rept when it app trstors with L. 0. J. 173 3. And su sworn to by used, even w course, lb. 336. [I same repor if he thinl Proc. 47 ; 337. fore the da; and details it must als( notarial orij treal, 16th 1. Arbitrat matter in disj proceedings K. B. 1811. 2. A matei filed, suffices L. 0. J. 203, OF VIEWERS AND EXPERTS, ARTS. 335-337. 199 The ovidence of the witnesneH must be taken down in writing, certified and annexed to the ro{>ort of the ex- portH, and it must mention whether the witneHscsare related or allied to the partiefl, and in what degree, and whether they are in the employ of either party, or interesteil in the suit. Ibid, 8. 85. 1 . Where the award was made in favour of the plaintiff, and the dc< fendant moved to aet aside the award on the ground that none of the witnt'uea were sworn, inasmuch as the arbitrators had no le^, ' capacity to swear the witnesses — ffeld, that under G. S L. C. cap. 83, sec. 84, they had such power, and the motion was dismissed. Daly etal. V. Cunmngham, 6 L. 0. J. 242, S.O. 1862. 2. A report of arbitrators will bo set aside and annulled on motion when it appears that a material witness gave evidence before the arbi- trators without having been previously sworn. O'Conndl v. Frigon, 9 L. 0. J. 173, S. 0. 1866. 3. And such evidence afterwdrds reduced to writing and signed and sworn to by the witness is irregalar, and cannot be filed of record or used, even where two or three o* the arbitrators consent to such a course. lb. ds I L. C. L. J . 65. ^^ 330. [If all the experts agree, they make one and the same report, if not, each of them makes his separate report, if he thinks proper.] Ord. 1067, tit. 21, art. 13 ; Pothier, Proc. 4i7 ; 1 Couchot, 88. 337. The report of the experts must be made on or be- fore the day fixed by the court. It must contain reasons and details, so as to enable the court to appreciate the facts ; it must also be signed by the experts or be in the form of a notarial original. Law Reporter, 57 ; Rodier v. Mercile, Mon- treal, IGth Sept., 1860 ; Ord. 1667, art. 12. 1. Arbitrators must not only hear the parties but must decide the matter in dispute before the expiration of the rule of reference ; their proceedings are otherwise void. Oilley v. Miller, 1 Rev. de L6g. 510, K. B. 1811. 2. A material reference in a surveyor's report to a plan which is not filed, suffices to cause the report to be set aside. Adams v. Oravel, 2 L. 0. J. 203, S. C. 1868. ' It w 200 OF REFERENCES TO ARBITRATORS, ART& 337-341. 3. When the report of expertt has once been made, they are fitneti officio, and cannot of their own motion make a new report on the ground that the first is imperfect or defective. Beckham v. Farmer, 21 L. 0. J. 38, S. C. 1877. 338. If the experts delay or refuse to ults their report, they may be summoned, with the same delays as in ordin- ary procedure, by rule of court, to shew cause why they should not be condemned, and even held by coercive im- prisonment, to do so. C. P. G. 320. ; 339. The court is not bound to accept the opinion of the experts nor that of a majority of them. G. P. G. 323. • 1. Where justice has been done to the parties, the court ought not to set aside the report because of formal irregularities, or because the adoption of the report had never been demanded. La Fabriqiie de Ste. Jvlie deS. <& Paqmt, 1 B. L. 430, Q. B. 1869. § 2. Of refareTicea in matters of account to axxountants and praotitionera. 340. In matters where accounts have to be rendered or adjusted, or which require calculations to be made, and in matters of separation of property, or partition of community or succession, the court m&y refer the case to one or more persons skilled in such matters ; and such persons are sub- ject to the rules above prescribed concerning experts. Such accountants and practitioners have the powers given to experts by the foregoing articles, and are bound to follow the directions of the court; and their reports are adopted, homologated or rejected in the same manner as reports of experts. G. 8. L. G. c. 83, 8. 80. *, §3. Of arbitrators. 341. The court may, of its own motion or upon the ap- plication of one of the parties, refer to the decision of arbi- trators any case of dispute between relations, concerning OF ABBITRATORS, ARTS. 341-343. 201 lap- partitions, or other matters of fact which it is difficult for the court to appreciate ; and also any other case, if the par- ties consent to it. Ord. 1566, art. 83 ; 1 Pig. 248. 1. The court may refer to arbitration disputes between relations when the facts are difficult of appreciation without its being necessary that the contestation should be the result of relationship. Bohert & Robert, 21 L. C. J. 18, Q.B. 343. The preceding provisions relating to experts apply to arbitrators, in so far as they are compatible with those of the present paragraph. Nevertheless, arbitrators need not be sworn unless the order appointing them requires it. 1 Pigr. 249. , ,; . 343. Arbitrators can only adjudicate upon the matters submitted to them. They are bound to observe the same formalities as ex- perts in the investigation of facts, according to articles 3?^4 and 335, unless they are at the same time appointed media- tors, but they aie not bound to give the reasons of their decision. They cannot award costs, unless the court has empowered them to do so. 1 Pig. 248. 1. Where the matter in issue in a suit was referred to arbitrators — Held, on motion to homologate the award, that where the award did not embrace all the material points submitted to the arbitration or if it showed that the arbitrators had exceeded the limits of their powers, it would be set aside. Tate et al. v. James et al. d: E. contra, 1. L. 0. .T. 151, S. C. 1867. 2. Arbitrators have no right to pass upon costs. Vrqvhart v. Moore, 18 L. C. J. 71, S. C. 1874. 3. So much of the award as pretended to decide on the question of costs will be rejected. McKenna v. Tabb, 2 L. C. J. 190, C. C. 1858. d. Where the rule appointing arbitrators authorizes them to settle the question of costs the court will not disturb their award as to costs. MeOibbon v. Dalton, 1 L C. L. J. 93, S. C. 1865. 202 OF EXPERTS, ETC., ARTS. 344-345. 1^ m § 4. OenercU proviaioTia a/pplicahle to the three preceding paragraphs. 344. [Experts, accountants, practitioners, and arbitra- tors, may demand that the amount of their remuneration, oosts and disbursements be paid into court previously to the opening of their report and subject to the order of the court. If they do not demand this denosit they have a recourse against all the parties of the suit jointly and severally.] 1. An arbitrator cannot claim his fesd as such if he h we not made his report within the delays mentio.xed in the agreeraen^, and if he have not named his award, and noticed the parties thereto, and that, even when at the time of the agreement to refer tba matter in dispute to arbitration, the party for whom he was acting verbally promised to pay him so much a day for all the time he would act as such arbitra- tor. Maynard v. Marin, 16 L. 0. J. 140, 0. C. 1873. ^1 2. j^. surveyor is entitled to his fees although his report is set aside on the ground that he had not been sworn. Brady v. Atchison, 1 L. G. L. J. 112, S. C. 1866. 3. An expert named by one of the parties or by the court at the request of one of the parties has no recourse for his fees against the other parties. Brown v. Wallace, 3 L. 0. J. 60, 11 L. C. R. 182, Q. B. 1860. 4. When a surveyor commits a notable error, on account of which his report is set aside, he cannot claim fees. Beaudry v. Tomalty et al 17 L. 0. J. 176, C. C. 1873. 6. Experts cannot detain their report until their fees are paid, but they may move that a sum be paid into court to secure their fees be- fore they begin to report. Hoyt v. Todd, 3 Reg de L6g. 367, K. B. 1809. 345. The party who intends to avail himself of a report of experts, practitioners or accountants must make applica- tion to have it received ; and if the opposite party desires to take advantage of any informalities or causes of nullity therein, he must do so by a counttr-application. Poth. Froc. 47 ; Contra. Ord. 1667, tit. 21, art. 14. OF TRIAL BY JURY, ARTS. 345-348. 203 1. A report of expei is oannot be amended on motion by either party ; but either party may move for a new visit by the experts, or for a new expert and a new report. Dumontier v. Ooutiire, 3 Rev. de L6g. 358, K.B., 1812. 346. If a report of experts, practitioners or accountants is free from informalities or causes of nullity, it is received, together with the depositions and documents annexed, an part of the evidence in the case. C. de Paris, 184. 341. In the case of an award of arbitrators, the party intending to avail himself of it may apply for its homologa- tion and for judgment in conformity with it. The other party cannot oppose it except by an application to have the report declared inadmissible on the ground of informality or some other cause of r; ; y. 1. Where motion was m.,.t .' vo homologate a report of arbitrators, and the adverse party moved to set it aside on the groui}d that he had not had notice, and filed an affidavit to that effect, which was uncontra- dicted — Held, that his motion must be granted. McCuUoch v, McNevin, 6L. 0. J. 267,1862. :^ . A SECTION V. ires lity ^oth. OF TRIAL BY JURY. § \. Preliminary 'provisions. ' 348. A trial by jury may be had in all actions founded on debts, promises, or agreements of a mercantile nature, either between traders or between traders and non-traders ; and also in all suits for the recovery of damages resulting from personal wrongs, or from offences or quasi -offences against moveable property. 5 L. C. M. 406 ; G. S. L. C. c. 82, 8. 26 ; G. P. L. 313. Fulton V. Stevenson, IS L G. J. 112. 1. WI.ere a trial by jury was had before issue was joined the verdict was set aside on a writ of error. iVurteUe v. Arcand, Rev. de L^g. 242, Q. B. J 848. -:-?■■•:-' -r t ..,-..,..,....-.,,_■..■- .-■.,-, 204 OF TRIAL BY JURY, ART. 348. ■'■''f.s 2. In an action fo; t non-delivery of a cu^ which the defend,uits, who were mex-chan^ ad, as alleged in the duclaration, bargrtined and sold to the pla ., a blacksmith, a trial by jury might ho had. Hunt V. Bruce, P. R. 3. 3. In an action en diclaration de patetniti, coupled '▼ith damagb5. trial by jury will not be granted. Clarke y. MeChrath, 1 L. C. J. 6, S. C. 1856. 4. Nor in an action for damages caused to the plaintiff's horse, as the wrong is not personal. Deroc}u:r v. Mewiier, 1 L, C. J. 290, S. C. 1867. 6. An action of damages by two professional men against two mer- chants for breach of contract to purchase real estate is not of a com- mercial nature, and theraiore aot susceptible of trial by jury, and so much of the pleadings as pray for a jury trial will be rejected on mo- tion. Abbott et cd. v. JJeiMeham et s8 of Practi Company, 12 L OF TfilAL BY JURY, ARTS. 348-350. 205 Lgone ay be tried by a jnry. CkmpU v. Garceau, 8 L. 0. J. 131 ; U L. C. R. 446, S. C. 1864. 13. In an action on a promisscry note when some of the endonen sued were traders and others non-traders, and when the defendants severed in their defence, trial by jury was allowed on all the issues at once. Evatitwd v. Withal, 16 L. 0. R. 126, Q. B. 1864. 14. An action against a trader by a carter for the drowning of the latter's horses is not triable by a jury. Toland v. Speitcer, 15 L. C. J. 221, S. 0. 1871. 349. It is had at the option of either of the parties, when the amount claimed by the suit exceeds two hundred dol- lars, and only upon the issues raided upon the merits of the case. G. S. L. C. c. 83, «. 26, § 2, -■ - 38S. The trial must be had at the place where the suit is brought, unless, for sufficient cause, the court or judge orders that it shall be held in another district ; and in such case the verdict is returned with the record to the place where the suit was commenced. » » 3ff6. In any suit for damages brought against a public officer by reason of any illegal act done by him in the per- formance of his functions, he may apply to have the trial take place in another district, upon shewing that th6 case cannot I district i This a a judge, J 83,». 28; district is serve as ji posited in terms of t cases, and i all persons the court. 9SS. ThJ they must of the assess real propertj dollars, in ci] and in any real properfcx or tenants o] one hundred juror. Ibid] ^ Now $3o| ^ Now$I50.r OF THE JURY, ARTS. 356-859. 207 cannot be tried impartially and without prejudice in the district in which the suit is brought This application may be granted either by the court or by a judge, and the venue changed accordingly. C. S. L. C, c. 83. 8. 28 ; c. 101, 8. 3, § 3. § 2. Of the jury. 357. The prothonotary of the Superior Court in each district is bound to make a list of the persons qualified to serve as jurors in civil causes, by taking from the list de- posited in his office of pei'sons qualified, according to the terms of the statute, to serve as grand jurors in criminal cases, and in the order in which they then are, the names of all persons residing within a distance of five leagues from the court. 27 <& 28 Vic., c. 41, s. 9, § 1, 2. ;.,,,.,, , , 1. Where the prothonotary had prepared a list of jurors in obe- dience to an order, and the order was subsequently set aside on ac- count of irregularities, and the list was used in another case, it was held in review that the jury, on a subsequent order in the first case, should be taken from the same list. Phillipstall v. Duval, 3 R. L. 29, 8.C. R.,1871. j, 358. The qualification required for such jurors is that they must be males of full age, proprietors of real property of the assessed value of two thousand dollars, or tenants of real property of the assessed annual value of two hundred ^ dollars, in cities or towns of at least twenty thousand souls ; and in any other municipalities they must oe owners of real property, of the assessed value of one thousand* dollars, or tenants of real property of the assessed annual value of one hundred ' dollars. Any justice of the peace may be a juror. Ibid. 8. 2, § 2, 3. , , . . , ^ 1 Now $300 ;— 32 V. c. 22, 8. 2 (Que.) « Now $1,500. IHd. 3 Now $150. Ibid. 208 OF THE JURY, ARTS, 859-360. 359. Persons cannot be jurors : 1. Who have not the qualifications and conditions required by the two preceding articles ; 2. Who are afflicted with blindness, deafness or any other physical infirmity incompatible with the discharge of the duties of a juror. 3. Who are arrested or under bail upon a charge of trea- son or felony, or who have been convicted th reof. 4. Who are aliens, except in cases where, according to law, one half of the jury must be composed of aliens. Ibid. 8. 2, § 3. 360. The following persons are exempt [absolutely] from serving as jurors : Members of the clergy ; Members of the Executive Council, of the Legislative Council, or of the Legislative Assembly ; Practising advocates and attorneys ; Prothonotaries, clerks of the Peace and clerks of the Cir- cuit Court ; Sherifis and coroners ; Officers of Her Majesty's courts; ' •' Gaolers and keepers of houses of correction ; Officers of the army and navy, on full pay ; Pilots duly licensed ; Schoolmasters not exercising any other profession ; [All persons employed in the running of railway trains ;] The following persons are exempt from serving as jurors provided they have given notice of their intention to claim such exemption in the manner provided by the Act 27 &; 28 Vic, c. 41, 8. 3 : I.* Persons above sixty years of age ; All persons in the civil service of the government, acting under imperial or provincial appointment ; Officers of the customs ; Persons employed in the public offices ; SPECIAL Persoi AJJpe of seven Physic Cashie Master All per Fireme 33 Vic, "The foil, I. iVTenibi oi Commoiia of Canada ; 2. Membe lative ^^ssem ment of Quel 3. TheCJe] of Quebec an( 4. Officers, militia ; 5. Registra 6. The persl and fifth VicJ Board of .Arbi] 361. The to time by jurors for ci ceased, abse^ of new pers striking out] in any case are declared 2. See also, § 3. Oft\ 36a. The may fix a da's 14 sting SPECIAL LIST AND STRIKING THE PANEL, ARTS. 360-362. 209 Persons in the service of the Post-office ; All persona who have been in military service for a period of seven years ; Physicians, surgeons, and apothecaries ; Cashiers, tellers and accotintants of incorporated banks ; Mast^ira and crews of steamboats ; All persons employed in the working of grist-mills ; Firemen and Volunteers. 33 Vic, c. 13 (Qit«.) " The following shall likewise be absolutely exempt : 1. Members of the Privy Council, op of the Senate or of the House of Commons of Canada, or persons in the employ of the Government of Canada ; 2. Members of the Executive Council, Legislative Council or Legis- lative Assembly of Quebec, or persons in the employ of the Govern- ment of Quebec, or the Legislature thereof ; 3. The Clerk, Treasurer, and other municipal officers of the Cities of Quebec and Montreal ; 4. Officers, non-commissioned officers, and privates, of the active militia ; 5. Registrars ; , ' 6. The persons mentioned in section twenty-three of the Act fourth and fifth "Victoria, chapter ninety " (Members of the Council and Board of Arbitration of the Montreal Board of Trade). 361. The list of jurors for civil cases is revised from time to time by the prothonotary according to the list of grand jurors for criminal cases, by striking out the names of do- ceased, absent or disqualified persons, and adding the names of new persons qualified to serve as jurors, [and also by striking out the names of all those whom the sheriff returns in any case pending as dead, absent, or incompetent, or who are declared by the court to be so.] 27, 28 V. c. 41, s. 9, § 1, 2. See also, 32 V. c. 22 (Que.) § 3. Of the special list and the striking of the panel. 363. The court, upon motion of either of the parties, may fix a day for striking the panel and another day for the 14 210 NI'ECIAL LI8T AMD bTRIKINU THK PANEL, ARTS. S62-3«5. trial, either in term or in vacation, and may order the Rum- moning of a jury to try the issues, either at the place wheic the court is held or in any other district, according to cir- cumstances, and may, in the latter case, order the record to be sent to the prothonotary of the court in such district. C. S. L, C. c. 83, 8. 27 ; OUh Rule of P. 363. If the suit be of a mercantile nature, the jurors to be summoned are taken and selected only from amongst the persons speaking the required language, who are designated in the jury-list as merchants or traders, and in the order iu which they stand upon the list ; and in cases where one of the parties is not a trader, and objects to a jury composed wholly of traders, the court or judge niay order that one- half only of the jury be composed of traders. If there are not upon the jury-list the number of mer- chants or traders that ought to be summoned to form the jury, the special list is completed by taking other names from the jury-list in the order hereinbefore prescribed. 27, 28 V, c. 41,^.9, §§4, 6, 6, 11. 364. Upon the application of either of the parties, if the opposite par*;y does not object, '.he court or judge may order the jury to be composec exclusively of persons speaking the French language or of persons speaking the English language. If the parties are of different origins, and one of them de- mands a jury de medietate limguce, the court or judge orders the jury to be composed in equal numbers of persons speak- ing the French language and of persons speaking the English language. IHd, §§ 7-8. 36ff . The motion for the fixing of a day for trial must be accompanied with a deposit in the hands of the prothonotary, of the amount fixed by the court. Goth Rule of P. 1. The deposit need not be made before the motion for a venire facioi, and the motion will not be entertained until after the facts to be aub> mitted to the jury have been defined. Glciaa v. Denis et al. 16 L. C. R. 299, 1866. . . . SPECIAX : 366. . .judge, th( matters, c the requii [included of forty-e: ing, in the to the ord( thereof, to c. 84, s. 43 367. U panel, the ] thonotary'a 868. Ea prepared bj therein desi each name f maining foi- are to serve 28 V. c. 41, 369. In can strike o the French English lane non-traders,] aro. If pose of stril twelve uam€ the rules prj tice, 447; 7] an. [If to proceed uj adopt the SPECIAX LIST AND STRIKINO THE PANEL, ARTH. 366-371. 211 306. After the granting of such motion by the court or judge, the prothonotary takes from the list of jurors for civil matters, commencing with the name of the first juror having the required qualifications, following that of the last juror [included in the special list last previously made] the names of forty-eight jurors, whose names are first on the list, hav- ing, in the special cases, the qualifications required according to the order of the court or judge, and makes a special list thereof, to form part of the record in the case. C. S. L. C c. 84, a. 43 ; 27-28 K c. 41, s. 9, § 3 ; 3 Black-stone, 358. 367. Upon the day and at the hour fixed for striking the panel, the parties must attend for that purpose at the pro- thonotary's office. Gdth and 7l8t Rule of P. 368. Each party strikes alternately from the special list prepared by the prothonotary the name of one of the persons therein designated, to the number of twelve each, paraphing each name struck out, an',' he twenty-four names then re- maining form the panel from which the twelve jurors who are to serve in the case are taken. 3 Blackatone, 359 ; 27- 28 V. c. 41, 8. 9, § 9. 369. In the case of articles 363 and 364, neither party can strike out the names of more than six persons speaking the French language nor more than six persons speaking the English language, or the names of more than six traders or non-traders, as the case may be. 27-28 V. c. 41, s. 9, § 10. 370. If either of the parties fails to attend for the pur- pose of striking the panel, the prothonotary may strike twelve names from the special list on his behalf, observing the rules prescribed in the preceding article. Lvsh'a Prac- tice, 447 ; 7l8t Rule of P. 371. [If the party who has demanded a trial by jury fails to proceed upon his demand, the opposite party may either adopt the necessary proceedings for summoning a jury or [I 212 OP THE SUMMONS OF JURORH, ARTS. 371-375. may obtain leave from the court or a judge to inscribe the case for proof in the manner indicated in the chapter on proof.] 1. .\n action for (Umages arising out of a malicious proseoution, i« not (if a niurcautile nature, and the piuliua will nut be entitle<1 to a jury ooinposod exclusively of inorohants. Ftujarty v. Morrow et ai 5 L. C. .). 222, S. C. 1860. § 4. Of the eummons of jurors. 379. As soon as the panel is formed in the manner pre- scribed in the preceding section, the prothonotary delivii-s to the party who applies for it a writ of Venh'e Facias, in the name of the sovereign, signed l)y such prothonotary and sealed with the seal of the court, ordering the sheriff to summon the twenty-four persons whose names compose the panel ; and a copy of such panel is annexed to the writ. Lash's Practice, 173 ; 3 Blackstone, 358. 373. The jurors must be summoned at least four days before the time fixed for the trial, G. S, L. G. c. 84, s. 44 ; 27-28 V. c. 41, 8. 9, § 12. 374. The sheriff is not bound to leave a copy of the writ of Venire Facias with each person, but merely a notice under his signature, summoning him in virtue of such writ, to appear upon the day and at the hour fixed for the trial. This notice must give the names of the parties to the case, the names, occupation and residence of the person summoned as a juror, the day, place and hour fixed for the trial, the summons to appear as juror, the date of the writ of Venire Facias, the date of the notice, and the signature of the officer to whom the writ is addressed. 378. A return of service of such writ must be made in the same manner as that of ordinary summonses. FORMATION OF JURY AND CHALLENGES, AHTH. 370-378. 213 § 5. Of the formation of the jury anil of challenges. 376. On the i«e.). 214 FORMATION OP JURY AND CHALLENGES, ARTS. 379-38*. 379. The presiding judge decides the challenge, and may, if necessary, order the facts upon which it is based to be substantiated on oath. Ibid. 208. / . 380. If the challenge is pronounced to be valid, the party who applied for a trial by jury must obtain the issuing of another Venire Facias. 381. If there is no challenge to the array, or if such challenge is overruled, the prothonotary, in order to form the jury, proceeds to the calling and swearing of twelve of the persons sumn\oned, following the order in which they appear on the panel, unless the judge orders otherwise, saving the cases mentioned in article 393. G. S. L. G. c. 84, s. 43. 383. Either of the parties may challenge for cause, any person called to form part of the jury, before such person is sworn. 3 Blackstone, 359 ; 0. P. L. 500. 383. The causes of challenge to the polls are either prin- cipal or to the favour. Archbold, 205 ; 3 Blackstone, 361 et seq.; C. P. L. 502. 3^4. The causes of principal challenge are : 1. Want of qualification of the person summoned; G. /S>'. L. G. c. 84, s. 22 ; Kennedy, 95 ; Archbold, 202. 2. Relation or affinity with one of the parties to the de- gree of cousin-german inclusively ; Archbold, 205-G. 3. Interest in the suit ; Ibid. 206. 4. That he has examined into the matter in dispute as an arbitrator named by one of the parties* ; Ibid. 5. That one of the parties has wrought upon the juror and given him money or other things, in order to obtain a ver- dict in his favour ; Ibid. 6. That tlie juror is infamous, or attainted of felony or convicted of perjury. Archbold ^ Kennedy, he. cit. FORMATION OP JURY AND CHALLENGES, ARTS. 385-391. 215 385. Jurors may be challenged for causes of lesser im- portance, which indicate a probability or give rise to a sus- picion that they are biassed in favour of or against one of the parties, and such challenges are to the favor. Arch- hold, 207 ; Kennedy, 98. 386. Principal challenges are tried by the court ; chal- lenges to the favour are tried in the manner hereinafter ex- plained. Archhold, 207-8. 381. If two jurors or more have already been sworn, they try all challenges to the favour ; if two h?ve not been sworn, the Court appoints two disinterested persons, who are sworn to try the challenge impartially, and who, together with the first juror sworn, if one has been sworn, decide upon it and upon any other challenges, until two jurors have been sworn. Archhold, ^08 ; 3 Blaclcstone, 363. 388. The juror himself may be examined on r^th as to the matter of the challenge, provided it does not tend to his dishonour or discredit. Archhold, 208 ; 3 Blackstone, 304 ; a p. L. 509. 389. A challenge founded upon a judicial condemnation must be accompanied with an authentic certificate of such condemnation. 390. In cases of a mercantile nature, the names of the merchants or traders sunimoned as jurors must be called first, and if they are not in sufficient number, the jury is com- pleted from among the other persons summoned. 27-28 V. c. 41, 8. 9, § 11. 391. If several e evidence adduced and of all other proceedings men- woned therein, and stands in lieu of any bill of exceptions by either of the parties against the evidence adduced, or the trial, which bills can no longer be filed. Ibid. 8. 35. 35 Vic, c. 6 (Que.) " 10. In all suits to be tried by a jury, or which are inscribed for proof and hearing at the same time either in the Superit^r Court or in the Circuit Court, either of the parties may, by a dematid in writing, accompanied by a deposit of a sufficient sum of m<)ney to pay a steno-' grapher, require that the evidence in the case shall be taken by means of stenography. In every such case the stenographer shall be named by the prothonotary, unless the parties mutually agree upon one, and the said stenographer shall be sworn, before the Court or Judge, or the prothonotary, or the Clerk of the Circuit Court, and he shall, at the conclusion of each testimony, read over the same to the witness, and 218 OF PROCEEDINGS BEFORE A JURY, ARTS. 398-402. sach testimony shall, when afterwards t 'ansoribed in ordinary writing, form the record of the evidence in the uiuse ; and in the case of trials by jury, the requirements of Article. 1v», and 398 may be fulfilled through the intervention of the 8tei>( rra^ aer. In cases inscribed for proof and hearing at the same time, such evi- dence taken by means of stenography shall be a sufficient fulfilment of the last part of Article 263 and of Article 264 ; and the sufficiency of the deposit required to pay a stenographer shall be determined by the court or judge, or by the prothonotary. 11. In any case in the Superior or the Circuit Court, the parties may, by consent, employ the services of a stenographer, and cause him to be sworn, and tho evidence to be taken in the manner mentioned in the next precedii^g section. 1 2. The expense of employing a stenographer shall form part of the taxed costs of the case. " ' 399. When the witnesses cannot attend before the court, their evidence may be taken by means of a commission for the examination of witnesses, which must be obtained and executed in the manner prescribed in the section concerning such commissions, and must be leturned before the jury; but no such commission can issue for the examination of wit- nesses who are within the circuit in which the jury trial takes place, unless with the consent of both parties, which is en- tered in the record. Ibid. 88. 105-6-7. 400. When the facts to be proved before the jury have been assigned by the judge, the proof is limited to the facts thus submitted. . Ibid. s. 31, , 401. When, upon the written consent of the parties, the assignment of facts by the judge has been dispensed with, proof may be gone into upon all the facts of the case. Ibid. s. 32. 403. Either party may examine the other by interroga- tories upon articulated facts, the answers to which are taken either orally, in the presence of the jury, or in writing in the prothonotary's office. Ibid.s.lOO. .. ; ^v , ? PROVINCES OP JUDGE AND JlTRT, ARTS. 403-407. 219 493. [The plaintiff first opens hi.s case, and adduces his evidence. The defendant next proceeds with his defence, having the option of addressing the jury either before or after adduction of his evidence. The plaintiff is afterwards entitled to reply, but if he ad- duces evidence in rebuttal, the defendant may comment upon such evidence before the reply of the plaintiff.] 1 Archbold, 191-195. 1. The defendants who examine no witnessjs have not the right to address the jury in reply. Phiiipstall v. Duml. 3 R. L. 456, S. C« R. 1871. 404. When each party has stated his case and adduced his evidence, the judge, if he deems it necessary, sums up the evidence to the jury. Ihicl. 196 ; 3 Blachtone, 376. 40tS. If either party objects to the judge's charge, the judge must, either immediately or so soon aa he conveniently can, reduce to writing the portion of his charge which is objected to, mentioning the objection made, and what is thus written, after being signed by the judge, forms part of the record in the case. C. S. L. C. c. 83, s. 33. § 7. Of the provinces of judge and jury. roga- 406. It is the pro /ince of the judge to declare whether there is any evidence and whether that evidence is legal, and it is that of the jury to say whether the evidence ad- mitted is sufficient. 2 Powell, Practice of Law, — of Jury, Rule l,p. 15. 1. When defendant pleaded want of notice of action {Art. 22), the point involved was held to be matter for the jury and not the judge to decide. McNamee v. Himes, 3 L. C. J. 109, S. C. 1859. 407. The jury finds the facts, but must be guide J by the directions oi the jud^ e as regards the law. Ihid. Rule 2. 220 OF THE VEiiDICT, ARTS. 407-410. 3 1. Action was bro tight to recover the viAue of a quantity of wheat, etc , which had been shipped on tho steamship St. Patrick, and which had been lost by the sinking of the vessel in the harbour of Montreal. The defendants pleaded, among other things, that they weio not liable if the goods were capable of being covered by insurauct}, nnd that the loss whicli aoorned was one which was Ctvpablc of being oj eved by in- surance. On motion for judgment non obstante veredicto, and for judg- ment ou the verdict — Held, that the question whether the lo.«i!i was one capable of being covered by insurance or nut, was one oi law and not oi pofD fact. B.Utt.rsH «.?, db AHaa et al. 20 L. C. J. 137, S. C. F. 1876. . ^B. Of fh/i verdict. ' ' » 408. If the jury, wlui^ eliarged with the case, cannot immediately eL^af. upoji a verdict, they must retire to a place set- apart for them, in charge of some bailiff appointed by the court or judge, until they ere ready to render theii' verdict. • ■ . The court or judge may, however, in such case, and also daring the trial, permit them to depart for the night, sub- ject to the obligation of attending again on the next follow- ing juridical day. 1 Archbold, 197. 409. if the jurors fail so to attend again, they are liable to the penalties attached to contempt of court, without piojudice to the recourse of the parties against them for damages. 410. The j ury may, at any time, even after the summing up by the judge, but in his presence and with his permission, in open court, examine again the witnesses already heard ; they may also ask the opinion of the judge upon any ques- tions of law which present themselves. Kennedy 49. 411. The agreement of nine of the twelve jurors is suf- ficient to return a verdict. C. S. L. C. c. 83, s. 26, § 3. 413. If nine of the jurors cannot agree upon the verdict to be returned, the jury may, in the discretion of the court, be discharged, and another jury may be summoned. ?• OF THE VERDICT, ARTS. 418-416. 221 1?/$. The prothonotory, after ascertaining that all the jup)t> 'iC present, receives their verdict and enters, the same in thy registers of the court, inserting their names, and stat- ing the number of those who concur in the verdict if it is not unanimous. Ibid. •: 414. When there is an assignment of facts the verdict ini)st be special and articulated upon each fact submitted, and l>e explicitly affirmative or negative. IHd, s. 31 ; C P. Z. 519, 521. 1. In an action for slander, in answer to the question, " Were the defamatory words spoken by the defendant i" the jury returned as iiiBwer : " These words, or words to the same effect, were made use of by the defendant concerning the plaintiff. " Held, that the verdict must be set aside as being vague and uncertain. Fergxisonv. Gilmour, 4 L. C. R. 67, S. C. 1854. 2. The verdict being in terms which were ambiguous, the court would interpret it in such a way as to give it effect, and would for that purpose look to the evidence, and ascertain the interpretation which one of the parties had given to the expressions which were the cause of the apparent ambiguity. La Banque de Quebec & Maxham, 11 L. C. R. 97, S. 0. 1860. 3. Where a special case is put to the jury on written questions, u general question such as " do you find for the plaintiff or defendant " is irregular and illegal. Grant v. The ^tna In». Co., 5 L. C. J. 286, Q. B. 1861. 415. When the parties have agreed to dispense with an assignment of facts, the verdict is general, either in favour of the plaintiff for a specific sum, or in favour of the defend- ant. Ibid. s. 32; Q. P. L. 519, 522. 416. The jurors are not bound to render their verdict until the party demanding the trial by jury has paid the sum of one dollar for each of them, for each day that the trial has lasted. In default of payment by either party, the jury are dis- charged without rendering a verdict, with costs against the party who demanded a trial by jury ; such costs including 222 JUDGMENT AFTER VERDICT, ETC., ARTS. 416-421. m both the costs incurred upon the trial and the allowance for the jurors, to whom the same is paid as soon as it is re- covered by the prothonotary [and if the tiial by jury was demanded by the defendant, the plaintiff may proceed ac- cording to article 371]. G. S. L. G. c. 84, a. 47 ; 27-28 V. c. 41, 8. 10, §§ 3, 4. 1. A juror ia not entitled to remuneration when he has been sum- moned and discharged without serving on the jury. Sylvester v. Man- aeau, 2 R. L. 93, C. 0. 1870. 417. The prothonotary, in the case of such default to pay, must immediately issue against the party liable for costs, a writ of execution, to be enforced by the sheriflf, for the recovery of the allowance due the jurors. 418. The verdict must be given upon all the issues sub- mitted to the jury. 1 Archhold;21S ; Bvller, 178 a. 419. The verdict cauL .ny manner pronounce upon the costs of suit. Q. P. L. 62*.. 490. The presiding judge may order the amendment of any clerical errors that have occurred in B,ny proceeding in the case before the jury or in the verdict. If the verdict cannot be rendered, by reason of the death, illness or withdrawal of a juror, the jury must be di'^charged, saving the right of the parties to have another jury sum- moned. The judge may, however, in the case of illness or with- drawal of a juror, adjourn the case, in order to give the jury the opportunity to reunite and render their verdict. •' : " , * . i ^- , . :- : ..,;■■ § 9. Of judgment after verdict and of remedies against I' a verdict. ► . 4M. The party in whose favour a verdict nas been ren- dered cannot move for judgment upon the same uptU the expirati 75th rui 499. be oppos in arrest atante vt Shavj V. Vide a 1. In an aside the trial — Hela both by th( Lyman et c 493. I atante ver in term a received a 35 Vic. "13. Arti tions for ne- before the day of the i rendering oi See 34 Vi 1. Held, received aft on which th & 9 L. C. H 494 within th either of <5eding art two days motion. ^ &!-■' at ren- tbe JUDGMENT AFTER VEliniCT, ETC., ARTS. 421-424. 223 expiration of four days in term after the rendering thereof. 75th rule of P. ; Lvsh'a Prctctice, 485. 499. The motion for judgment on the verdict can only be opposed by means of a motion for a new trial, a motion in arrest of judgment, or a motion for judgment non ob- stante veredicto. 14-15 F. c. 89, s. 4 ; Lush's Practice, 485 ! Shavj V. Meikleham, 3 L. G. J. 5. Vide 34 Vic, c. 4, s. 10 (Qv,e.) under art. 494, post. 1. In an aotirn of damages where motion was made either to set aside the verdict of the jury, dismissing the action, or grant a new trial — Seld, that such a motion was regular, as having been sanctioned both by the Superior Court and the Court of Appeal, tiigghtson v. Lyman et oZ. , 4 L. C J. 329, 8. C. 1860. 493. Motions for new trial, or for judgment " non ob- stante veredicto," must be made on or before the fourth day in term, after the rendering of the verdict, and cannot be received after. 7Qth Rule of P. 35 Vic. c. 6. (Que.) "13. Article 423 is hereby amended so as to read as follows : " Mo- tions for new trial or for judgment turn obstante veredusto must be made before the Superior Court, sitting in review, on or before the second day of the next term of such sittings, following the tenth day after the rendering of the verdict, and cannot be received after. " See 34 Vic. c. 4, s, 10 (^wc.), under art. 494, poat. 1. Held, on a motion for a new trial that such motion could nut be received after the first four days of the term next following the day on which the verdict was rendered. Merritt v. Lynch, 3 L. C. J. 276, & 9 L. C. R. 353, S. C. 1869. /,■„'-"'"■■'< , , .' - ' "'-■■',"' ' . ■ ' 494. Motions in arrest of judgment must be made within the same delay, unless the party has adopted either of the two other recourses mentioned in the pre- ceding article, in which case it may be made within the two days in term next after the judgment upon the former motion. 77th Rule of P. 224 OF MOTIONS FOR NEW TIUAL, ARTS. 425-420. 'St mrr\ 495. None of the motions hereinl»efore montioned cnn be adjudicated ui)on unlcs-s the opposito party has been heard or duly notified. Of motions for neiv trial. 490 The court may giant a new trial in the following cases : 1. If the assignment of facts submitted to the jury does not comprise all the facts necessary to be proved ; 2. If the judge has admitted illegal evidence ; 3. If he has rejected legal evidence ; 4. If has wrongly directed the jury upon a point of law ; 5. If the jury, not agreeing, hav settled their verdict by casting lots, even though it be conformable to the evidence and to the direction of the judge ; 0. If the jurors have accepted refreshments from the suc- cessful party ; 7. If one of the jurors had expressed his intention of fa- vouring the successful party ; 8. If he has committed any act of a nature to warrant a suspicion of partiality of the verdict ; 9. If anything has been done to bias the opinion of a juror in favour of the successful party ; 10. If the judge, while summing up the case in favour of one of the parties, was stopped by the j'iry declaring them- selves satisfied, and they after .v^ards rendered a verdict in favour of the other party ; 11. If the amount awarded be so small or so excessive that it is evident that the jurors must have been influenced by improper motives, or led into error ; 12. If the jurors, or any of tlaem, have received affidavits or evidence out of court ; 13. If the verdict is unsupported by proof, or contrary to the evidence adduced ; - 14. If the party was taken by surprise; OF M0TI(>N9 For NEW TRIAL, ART. 42G. 225 15. If the case wa.s irroj^ularly called in the absence of either of the parties ; or if the record was not complete ; if an important witness was abHent at the time of the trial without any fault on the part of the party who had sum- moned him, and his evidence is still obtainable ; and in all cases where the merits of the case could not be discussed, and the party aggrieved and his attorneys are fre^ from blame in that respect ; 16. In some particular cases, when new evidence has been discovered since the trial ; 17. If the verdict is informal or defective ; 18. If the writ of Venire Facias is wrongly addressed or executed, or if a challenge of the array or of any juror has been erroneously maintained or overruled ; 19. If, for other causes, there is manifest injustice in the verdict. Lush's Practice, 531, and seq. 543, 560. 1. ObjeotionB which might have been taken, but were not taken daring the progress of a jury trial, cannot be urged m support of a motion for a new trial. Cannon v. Htwt et al.,1 Q. L. R 139, S. 0. R. 1875. 2. When the verdict and finding of the jury are, in the opinion of the court, contrary to the evidence adduced at the trial, the court will set aside the verdict, and grant a new trial. Matthewaon v. The Royal Insuraiice Company, 13 L. 0. J. 6, 3. 0. 1868. 3. When contrary to law and evidence the verdict will be set aside and a new trial granted. Senecal v. The Bichelmi Compaity, 15 L. C. J. 1, Q. B. 1869. 4. Where defendant, in an action for damages before a jury had examined no witnesses, and had been refused permission to address the jury in reply — Held, that this did not give rise to a ground for a new trial. PhiUipathal v. Duval, 3 R. L. 456, S. C. R. 1S71. 5. And where the plaintiff had purchased a number of barrels of oil not yet identified and separated from other barrels among which it was stored — Held, that he had an insurable interest, and that the verdict of the jury, based on a charge of the judge to the contrary, should be set aside and a new trial granted. Matthewson db The Royal Ina^irance Company, 16 L. 0. J. 45, Q. B. 1872. 15 226 OF MOTIONS FOR NEW TRIAL, ARTS. 426-428. 0. A new trial oui only l>« gnuitwi wh«ru thuro ii ovident iujiutio«. Borthunck . Bryant tt al., 6 R. L. 440, H. C. R. 1874. 7. Where uviUence hna beun adduced un buth lides, the court will nut gnnt a new trial on the ({round that the verdict ii contrary to evidence, but where nu evidence Iihb boon oifered to support the ver- dict, a now trial may be granted. ScholjUhl v. Leblond, 3 Rev. de Ldg. 369, K. B. ; Wood v. McCallum, 3 Ue/. de Ug. 360, K. B. 1820. 8. An action serve the rule upon him, and if he do not appear, the plaintiff may then move the court to refer the oath to him- self. Privost d- Derousseau, 3 Rev. de Leg. 356, K. B. 1813. 2. The court, however, if it sees fit may order the defendant to ap- pear on another uay. Ibid. 447. The party served may, hoirever, when he refuses to answer, refer the oath back to the opposite party. This is done in writing, and thereupon the party who offered the oath is bound to attend before the court, without further no- tice. Ibid., loc. cit. OF DTSCONTINUANCE, ARTS. 448-450. 233 § 2. Of the oath put by the court 448. The court may, of its own motion, order either of the parties, or both, to appear and answer such questions as it deems necessary to elucidate the matters in dispute ; ac- cording to the provisions contained in article 1254 of the Civil Code. 1 Pig. 259, 260. 1. When the judiciary oath is deferred by the court, the parties will be heard anew if they desire . Syiulks de St. Henri v. Carrier 4 Q. L. R. 205, S. C. 1878. 449. The court may order that the party shall appear without notice, or that the rule shall be served upon him at the diligence of the o|)posite party. SECTION III. OF DISCONTINUANCE. 450. A party may, at any time before judgment, discon- tinue his suit or proceeding on payment of costs. C S. L. C. c. 82, s. 25 ; C. P. G. 402, 403. 1. After a case has been submitted to the court on the merits, the plaintiff is not entitled to discontinue the suit on payment of costs. Williamion v. Ehind 22 L. C. J. 166, Q. B. 1877. 2. The withdrawn.! of au action by a plaintiff personally, in the ab- Bbir.'^pt of :;rid without the intervention Df his attorney, is good and valid, although the attorney may have prajed for distraction of costs. Ryan (t Ward et al 6 L. C. R. 20', Q. B. 1856. 3. As a general rule, a plaintiff can discontinue his action only on payment of costs. Oreenshields v. Leblanc et al. 12 L. C. J. 343, S. 0. 1868. 4. Where a wife suing for separation from bed and board desisted from the first part of her action but adhered to the demand for separa- tidii of property, the discontinuance was held good, and the separation of property was granted. DvAevoir £ Tnrcot, 8 L. C. J. 153, S. C. 1854. : »; :■*.'' I: 234 OF DISCONTINUANCE, ARTS. 450-463. 5. An answer to an excepdon to the form U a waiver and discontin- uance of a motion previously made to reject the exception. Copdand et al. d: Cauchon et al. 14 L. C. J. 242, C. C. 1869. 6. The abandonment of part of a claim sued on is a discontinu- ance. Salvat & Ouivremont, 4 R. L. 2?3, S. C. R. 1870. 7. \ (li;^continuance is not a chost jugSe, and does not deprive the plainiirf of his right to bring another action. lb. 8 A ^nrty may proceed in virtue of n settlement arrived at in a case b()fc ' ^ discontinuing the action, and it is sufficient that he offers to (^scontiuue if the other party carries out the settlement. King e paid, and if such costs be not paid on a day certain, the second appeal will be dismissed with costs. Boh- fter d- Reeves, 12 L. C. J. 291 , Q. B. 18C3. And see cases under Art. 120 ant''.. 236 OF PEREMPTION OF SUITS, ARTS. 454-455. 4 II *k SECTION IV. ■■' " OF PEREMPTION OF SUITS. 4tl4. Suits are perempted when no proceeding ha.s been had therein during three years. 1 Couchot, 75, Ord. de Fev. 1563, Art. 15. Ord. de Jan. 1628, Art. 91 ; C. P. C. 397. 1. Where the record is misBing, it is not competent for the court to accord peremption. Turner v. Boyd, 2 L. C. J. 96, S. C. 1867. 2. On a motion to discharge an opposition, on the ground that the op- posant had failed to proceed within three years, the motion was granted. Blackburn v. Walker cD Walker, 3 L. C. J. 195, S. C. 1859. 3. Peremption will not be granted of an opposition to a ratification of title, Robertson exp. dh Pollock et ««., 5 L. C. J. 150 & 11 L. 0. R. 286, S. C. 1861. 4. A petition for contrainte par corps against a person who deteriorates a property seized is nf>t a suit, and is not subject to peremption. Chaffers ca qual v. Petrin, 3 R. L. 71, S. 0. 1871. 5. Held, that defendant was entitled to have judgment declaring a suit perimie, though the plaintiff who had been originally represented by two attorneys practising in partnerchip had not, since the nomina- tion of one of them to a station in the civil service, appointed a new attorney, even though the office held by the one so appointed be in- compatible with the practice of his profession, the mandate of the other still continuing, and the j. arty being still represented by him. Valin V. Anderson, 2 R. C. 110, S. C. 1871. 6. A motion for a rule nisi for peremption made by a defendant in person, who has ceased to be represented by his attorney ad litem, and who has not subsequently appeared by another attorney or in person, is irregular, null and void. Johnston v. Rimmer & Lockwood et at, , 13 L. C. J. 131, S. C. R. 1869. ^SS. Peremption, however, does not take place : 1. When the party has ceased to be represented by his attorney, in the cases mentioned in articles 201 and 202 ; 2. When the party himself dies, or has changed his civil status ; • - OF PEREMPTION OF SUITS, ARTS. 455-457. 237 3. When proceedings are compulsorily stayed by any inci- dental proceeding or by an interlocutory judgment. 1 Ccmchot, 76 ; 9 Z. G. R, 219. 1. Peremption cannot be granted in a case where the proceedings have been suspended by proceedings in improbation. A7\dkra(n% t. Sairhorn, 3 Q. L. R. 206, 8. C. R. 1877. 2. The parties to a cause must be put in default to answer the peti- tion en r^priat d\i\tt(mce before judgment can be given upon it, i. e., there must be a demand of plea. Hamd v. LalibertS, 3 Q. L. R. 242, S. 0. J 876. Murphy v. Campbell, 8. 0. 1876, ibid. 3. Pmirparlera for the compromise of a caso interrupt peremption, but proof thereof must be made by writings. Fhaiieuf & Elliott, 21 L. 0. J. 221, 8. 0. 1871, 1 Legal News, 211. 4«i6. Peremption takes place against corporations and against all individuals, even against minors, when they are represented, saving their recourse against those who repre- sent them. It does not take place against the crown. 2 Anc. Deniz. p. 662 ; a P. a 398. 4tl7, Peremption must be declared by the court, upon a motion of which the attoniey, if there is one, has had notice ; otherwise the notice must be given to the party himself. C.P. C. 480. 1. Peremption will be granted on the certificate of the clerk of the court, that no procedure has been taken in the case for upwards of t\ree years, and that, notwithstanding the non-production of part of the record which has been misplaced. Chajtman v. Aylen, 1 L. C. J. 264, 8. C. 1857. 2. The defendant who has made default cannot obtain permission to set aside the default for the purpose of obtaining peremption of the suit. Courville ds Leuar v. Levar, 6 L. 0. J. 256, S. C. 1862. j 3. A defendant who has not appeared may ask and obtain peremp* tiou of the suit. Day r. Decaase db Dorval, 12 L. C. J. 266, 8. C| 1868. 4. And, in such case, may sign the demand for peremption and pre* sent it himself to the coiurt. lb. .r, ^., . .;• ■238 OF PFREMPTION OF P'MTS, ART8. 457-458. I 5. A demand in peremption ia itidiviaibli , lo that where one defuu.. ant in a caae has asked for pereru[(tion which is granted, it is ^^nted in favour of all the defendtuits lb. 0. Where, on a motion for peremption, the conclusions were that \... notion be dismissed in8tea< I of declared perimie — Held, to be irregular. and rejected, but without costs. Peck et al. v. Murphy et al. d- Thi Mayor, dc, of MtrntreaK 2 L. 0. J. 221, S, C. 1868. 7. The defendant in three similar cases, filed motions lisking f^r peremption of the suits on the ground that three years had elii|>stil since the last proci eding therein, and the plaintiff cipposud the ijrant- ing of the motions on the ground that they w< o not sufficient, ami that a rule was necessary — Held, that the service ind notice of niotion are equivalent to a rule. Chatlehoia v. Bcutien, 6 L. C. J. 203, S. C. 1862. .. 1 . . 8. A motion for peremption made in the name of tht-oo attorneys, one of whom is deceased, will be rejected, on the ground that such i motion might )>• made in the name :>f the two survi^ ing attorneys without a substitution. DeBeaujeu v. Rodrigue, 7 L. 0. J. 43, S. C. 18«52. 5). A motif .n for p^itrnption may be legally made by two out of three members of a Ui/if^ fim*, being attorneys of record of defendant, with- out any subttitution of attorneys previously allowed by the court, and without evidence that thf^ other member of the firm is either dead or has ceased to practice. Terrill v. Haldane et al., 15 L. C. J. 245, S. C. 1871. 10. A demand for peremption should be served upon all the parties to the suit, and in default of such service if cannot be granted. Mo,- eau et vir v. Lemuird cfc Lapierre, 9 L. C. J. 100, S. C. 1865. 11. Peremption will be granted in cases not contested, and in which the defendant only appeared, if the plain I Iff allows the proceedings to lie over for three years. McBean v. Cullin, 7 L. C. J. 117, S. C. 1851. 12. A petition claiming peremption ought to be accompanied by a certificate of the clerk of the court, showing the date of the last pro- ceeding. Les Dames Beligitusea Ursvdines v. Botterell, 1 L. C. R. 8ft, Q. B. 1851. „..., .,, , „ „ , - .,,.,._...:, . , 4«J8. Peremption is covered by any useful proceeding taken after the lapse of three years and before the service of the -motion to have it declared ; but it cannot be prevented or OF PEKEMPTION OP 8UITH, ART. 458. 239 tttfeoteJ by any proceeding taken subsequently to the service of «uch motion. C^ P. C. 399. 1. Onappealfromajudgmentjjrantingporetnp'ion— //e/(i, thatan in- terluciitory judgment dischargint; u ililihiri suaponda so long aa it it in force thu proceedings in an action en where the plamtitf had, between the notice and the presentation of the motion, filed a paper in the cause — Held, to be a rule in this province that the notice was not equivalent to the demand, and that any useful proceeding taken be- tween the two would be sufficient to interrupt the peremption. Beau- dry V Plitiguet, 3 L. C. J. 237, S. C; McDonald et al. il- Boy, 3 L. C. J. 302, S. C. 1859. 5.. The plaintiff urged that the peremption had been interrupted by the fact that the attorneys of record had abandoned the profession and become merchants — Held, that the rule was peremptory, and that the fact urged did not interrupt peremption. The New City Oaa Company ofMrndrtal . . A\ and the plaintiff pleaded that, having entered into aolemn and perpe* petual TOWS as a religieuse, she was civilly dead before the peremption had accrued, and also that the pleading mentioned as the last proceed- ing in the case, instead of having been filed on the 17th of May, 1859, was filed during the month uf April, 1862, as appeared by affidavits produced by her, and before the day on which the motion for peremp- tion was served she had taken useful proceedings as required by law — Heid, supposing the plaintiff were civilly dead (a point which the court would not decide) by taking the vows of a rdigieute before the peremption was acquired, that as the defendant had not been notified of the fact it could not take away the right of peremption. DeBeaujeu T. Maui, jr., 7 L. 0. J. 106, S. C. 1863. 10. With regard to the filing of the pleading referred to, the date of which had been certified by the ijrothonotaryj his certificate could only be attacked by improbation, and held, also, that peremption could not be affected by a proceeding, taken between the service of the motion and its presentation to the court. lb. 11. The death of one of the plaintifb interrupts the peremption. BnwBtet et al. v. Childa et al. 9 L. 0. J. 21, S. C. 1863. 12. And the death of one of the defendants. Hotoard et al. v. Chads etal. 9 Jj. 0. J. 22, S. 0. 1863. 13. The service of a notice of motion to be made by the plaintiff is a valid interruption of the peremption in the cause under art. 468. The Mayor, die., of Montreal ds Ranton, 13 L. 0. J., 234, 0. 0. 14. Service of a notice of motion not filed or presented to the court does not interrupt peremption. Terrili ., A 8 L. 0. R. 446, 1867. 2. The costs on a demand for peremption are at the discretion of the court. DeBUury & Gauthier & Pari$, 6 L. 0. J. 330, S. 0. 1861. 3. And on sufficient cause, on affidavit, the court will not grant costs. Ib.,llL. 0. R. 494, S. 0. 1861. 4. The action will be dismiBsed, each paying his own costs. F TranchemmUagne, 13 L. 0. J. 308, S. C. 1869. 469. Every written proceeding in the case must be served 16 242 MISCELLANEOUS PROVISIONS, ARTS. 462 463. ^< upon the opposite party, otherwise it is not deemed to be regularly filed. Every notice of inscription for hearing in law or upon th& merits must be given by serving a copy of the inscription at least one clear day in term, and four days in vacation, before the day fixed for such hearing. Ibid., 8. 184. 1. Held, on an appeal from a judgment ordering a rule for eontrainte par corps against a defendant, who had become voluntary guardian of the things seized, that notice of such rule to the defendant is not re- quired by the Rules of Practice. Brooks dc Whitney, 4 L. 0. J. 279, Q. B. I860. 2. In cases in the Circuit Court under 960, copies of preliminary ex- ceptions must be served on the plaintiff's attorney. XituAer v. Parsons, 17L. C. J. 196, C.C. 1873. 3. When an opposition is made by a third party to a seizure, and the opposition is contested by the other parties in the cause, the defend- ant has a right to be notified of all the proceedings on the opposition, and no final judgment can be rendered maintaining such opposition unless the defendant has been called upon to declare whether he in- tend to contest it or not. Kelly piioation was made to the Superior Court for payment of moneys claimed by parties in the case, notice must be given to the other parties interested of thf; judgment or order pronounced in the case. Marm et aL di Monk, ?, L. 0. J. 55, Q. 6. 1862. 403. In reckoning the delays in matters of pleading or trial, the first day of September is deemed to be the next day after the ninth day of July ; and no party to a cause I ■;'4' tji' MISCELLANEOUS PROVISIONS, ABTS. 463-465. 243 can be obliged to proceed between those two days, without a special order of the court or judge. 34 Yict. 0. 4, (Que). 4. "Notwithstanding Article 463,any days between the ninthof July, and the first of September shall be reckoned in the delays of eight days fixed by Articles 497 and 600 of the said code." 464. [Any two or rnore jvdgea redding in the same dis' trict mvst ait at the aa/tM time and at the same place, hut in separate apartments, in term or in vacation ; and each of such judges has the same jurisdiction for hearing and de- termini/ng all cases and matters svhmitted to him, and has the same powers as if he were the only judge sitting at such Iplace.] Ibid. c. 78, s. 24. ' 40 Vict. 0. 13. {Qw.) 2. Article 464 is repealed, and the following substituted therefor : " 464. Two or more judges of the Superior Court discharging their duties in the same district, may, and shall, whenever the despatch of business requires it, sit at the same time and at the same place, in separate apartments, in term or in vacation ; and each of such judges has jurisdiction for hearing and determining all cases and matters sub- mitted to him, and has the same powers as if he were the only judge sitting in such place." 40(S. In the absence of the judge from the chief -place of any district in vacation, his duties may be performed by the protbonotary, in cases of evident necessity, or where by de- lay a right might otherwise be lost or a wrong sustained. But no judgment or order can be made by the protbono- tary unless notice of the application has been given to the opposite party, except in cases by default, and such order may be afterwards revised by the court at its next sitting, or by any judge present in the district, provided the party requiring the revision files in the prothonotary's ofiice, on or before the third following juridical day, an exception thereto, accompanied by the grounds upon which such revi- sion is demanded. fi4 MISCELLAKEOUS PROVISIONS, ARTS. 465-466. ^^ \ . The judgment or order of the prothonotary cannot be exe- cuted until the delaj for filing such exception has expired ; and after the filing of the exception, the execution of such judgment or order remains suspended until the decision of the judge. Ibid. 8. 25. 36 Vict. 0. 10 (Que.) " 7. Whenever at least one judge of the Superior Court shall have his domicile in the ekeflieu of any district the prothonotary of such district shall not, in any case hereafter, exercise any of the judicial functions mentioned in Art. 466 (unlesa such judge be ill or absent from the district, 40 V. 0. 13, 8. 6, Que.)" 1. On an exception to the form filed on the ground that the female plaintiff had been authorized d ester enj^utice by the deputy prothono- tary — Held, that as the said authorization did not set forth that it was granted in the absence of the judge of the district, in accordance with art. 465 of the Oode of Procedure, it was ultra vires, and the excep- tion was maintained. Dubi V. Maxurette, 5 R L. 247, S. 0.; Filion V. Lacombe, 5 R. L. 243, 0. C. 1871. 2. A deputy prothonotary in the absence of a judge has no power to fix the amount of unliquidated damages and interest upon which to base the issue of a writ of capias. Worthenv. Holt, 3 B. L. 702,8. 0. R. 1872. 3. The prothonotary of a district, the judge of which is bound by law to reside in another district, may grant a petition without setting forth the absence of the judge. Lynch v. Dwncan ds DunecM ds Lytich, 16 L. 0. J. 222, S. C. R. 1871. 4. A deputy prothonotary has power to authorize a tutor to take up the instance in and prosecute an action en partage already begun by the autew of the minor. Gutting ds J»rdan, 19 L. 0. J. 139, Q. B. 1875. 5. The clerk of the Circuit Oourt cannot exercise the functions of the judge of the district even in his absence, and when the parties would necessarily sufier by delay, and where the derk had granted the petition of the plaintiff who demanded possession of a horse he had attached by saisie revendication, it was held, on inscription before the judge in term that the clerk's order should be annulled. Larou v. Larose, 3 B. L. 33, S. 0. 1871. 466. Whenever the sheriff is interested or personally concerned in any suit or action, any writ which ought to be aer\ corone 461 or his < the Mrri c, 78, ». 468. not be their att( [If an; been heai court, or tained le changes 469. by article dered in Thecoi rendering 32 Vict., 1. "Wh« cause in the OF JUDOMKNT ON THE MERITS, ARTS. 466-469. 245 be served by him, must be addressed to and served by the coroner of the district. Ibid. c. 83, s. 46 ; m« art. 74. ante. 467. If the sheriff is also coroner, then the prothonotary, or his deputy, acts in the place and stead of the sheriff, as if the writ had been addressed to him personally. C. 8. L. C. C.78, «. 22. CHAPTER EIGHTH. OF FINAL JUDGMENT. SECTION I. OF JUDGMENT ON THE MERITS. 468. Judgment in a suit which is under advisement can- not be stayed by reason of the death of the parties or of their attorneys. Ord. 1667, tit. 26, Art. 1. [If any judge or assistant judge before whom a case has been heard is appointed chief-justice or judge of the same court, or chief -justice or judge of another court, or has ob- tained leave of absence, he may render judgment as if no changes had taken place.] 469. In all contested cases; and in those not provided for by articles 89, 90, 91, 92 and 96, judgment must be ren- dered in open court. i6wi., art. 5. The court may, during term, appoint days out of turm for rendering judgment in cases taken under advisement. 32Vict.,c. 20,C^.>: 1. " Whenever any judge of the Superior Court, who hu heard » cause in the said court, is unable by reason of sickness, or other rea- UV t^' M6 OF JUDGMENT ON THB MBBITB, ABT8. 469-470. ■on, to render judgment in the said oanie in person, he may tnuumit the draft of the judgment oertifled by himself to the prothonotary, who ■hall be thereupon botind to record the same, and to real it in open court on the next juridical day in term after he ahall have received ■uoh draft ; and the judgment ahall then have the same force and effect aa if it had been pronounced by the judge on the day on which it was so read." 38 Vict., c. 10, {Que.) : 1. " At any time, when a judge who haa heard a caxue in the Superior or in the Circuit Courts, ia incapable, on account of illneas, absence or other cause, of rendering judgment in person, he may transmit the draft of the judgment, certified by him, to the prothonotary or to the clerk, as the case may be, with instruction to enregister such judgment and to read it, or to give communication of it on demand to the par- ties or their attorneys ad litem, on the day previously fixed for that purpose by the court which shall have taken the cause en dilibfri. The prothonotary or the clerk, on receiving the draft of judgment and the instructions accompanying it, is obliged to conform to such instructions : and the judgment so enregistered, shall have the same effect as if it had been rendered by the judge, during the sitting of the court. 2. The provisions of the preceding section shall take effect notwith- standing article 1080 of the Code of Civil Procedure, section 1 of the Act of this Province, 32 Vict., chap. 20, and any other provision of the law, and without prejudice to such article, section, or provision of law. 3. In the absence of the judge who should preside over the Supe- rior or the Circuit Court, the prothonotary or clerk, as the case may be, may adjourn the court from day today during the term." 1. The courts cannot adjourn to any day between the 9th of July and the 1st fA September for the purpose of rendering judgment in cases heard and taken under advisement during term, and art. 469 gives the court the right to adjourn only to a day which is not prohibited by art. 1. The Richelieu Co. & Aiuieraon, 20 L. C. J. 219, Q. B. 1876. 470. In cases inscribed at the same time for proof and hearing, judgment may be rendered during the days set apart in vacation for proof and hearing in such cases. C. 8. L. C. c. 83, «. 37. 32 Vit 2. Art during t< renderinj 471. tion the 479. and mu! In coi statemei the reas( of the ju 39, 110. 1. Aju( the proper account of 2. Anei ground of 3. A jut to all the ] 8te. Jvlie 4. The locutory R. 1877. 473. register by the ju 1> An in S. C. or of manner sin against a Seott, 1 Legal News, 278, Q. B. 1878. 3. The court will not interfere to change or modify in any way a final judgment which has been rendered. Huot ▼. Pagi, 9 L. O. R. 226, S. 0. 1869. 4. Nor can a judgment be changed or modified in any way after the court has adjourned. Berirand v. Beaudry, 9 L. 0. R. 260,0. C. 1869. 6. A variance between a judgment on a rule and the rule itself is not aground for setting it aside. Brooks v. Whitney, 4 L. 0. J. 279, 10 L. 0. R. Q. E. 1860. 6. An interlocutory judgment may be revised or re/onned. Plen- derleath ds vac. v. McOUlivray et al. S. R. 470, K. B. 1831^ Tate et at. V. Janes et al., ds 6 contra 1 L. 0. J. 161, S. C. 1867. Quintal v. Boy et al. 14 L. 0. J. 67, S. C. 1868. 478. Every judgment condemning a party to the restitu- tion of rents, issues and profits, must order the liquidation thereof ; and this is done by experts if the case requires it ; and the party condemned is bound for that purpose to pro- duce all accounts and documents shewing the receipts, all leases of immoveables, and a statement of the cost of tilling, sowing and harvesting incurred by him. 476. Unless it is expressly ordered, it is not necessary to have the judgment served on the party condemned, except judgments in recognition of hypothecs, rendered against de- OF COSTS, ARTS. 470-478. 249 fendants having a known domicile in the Province. C. 8. L. a c. 49, «. 15 ; 0. 83, 0. 114 ; Ord. 1667, tit 27. AH. 1 ; 25 Geo. III. 0. 2, ft 29. 1. Siguifioafcion of a judgment is not required where it hw been given contradictoirtmeHt. Rogwon di Begin, 3 Rev. do lAg, 301, K. B. 1819. 477. [Any party may, on giving notice to the opposite party, renounce eiiner a part only or the whole of any judg- ment rendered in his favour, and have such renunciation re- corded by the prothonotary ; and in the latter case the cause is placed in the same state it was in before the judg- ment.] 1. Where the plaintiff had deaiated from a judgment on a demurrer, obtiined in the absence of defendant's counsel from the court, and the case was inscribed for another hearing, the court was of opinion that, as judgment had once been rendered, there was an end of the m&tter, and the inscription was discharged. Clark tt ai. ds Clark tt wx. 2 L. 0> J. 209, S. 0. 1868. 2. Where there is a manifest error in a judgment and the plaintiff (in whose favour the error was), desisted, before appeal brought, from the benefit of such error, and served notice tliereof on the defendant —Hdd, that the diaiatement was good, and the appeal was dismissed with oosU. Broum et al d: Wood, 8 L. 0. J. 53, Q. B. 1863. 3. Where one desists from a judgment rendered in the Superior Court, and which has been inscribed in revision, the Court <^ Review will discharge the dtlii>eri and return the record to the Superior Court. Ward d: Newhall, 3 R. L. 446, S. 0. R. '871. • 4. The attorney of oun of the parties in a case, as such, may renounce the whole or part of the judgment given in his favour, but such renun- ciation to be valid must be signed by the party himself or by his attorney ad hoc. Prefontaine d; Brown et al., 1 Q. L. R. 60, S. 0. R> 1875. SECTION II. OF COSTS. 478. The losing party must pay all costs, unless for special reasons the court thinks proper to reduce them or compensate them, or orders otherwise. 1 t50 OP C08T8, ART. 478. '1 ■i f Nevertheless, in actions of damages for personal wrongn, if the damages awarded do not exceed forty shillings, ster- ling, no greater sum can be allowed for costs than tho amount of such damages. Ord. 1067, tit. 81, art. 1 ; 25 Geo. III., c. 2, «. 4. a S. L. a 0. 82, a. 23 ; C. P. C. 130, 131. 1. The plaintiff's attorney cannot claim ooita from the defendant for any proceeding before the inue of the writ and consequently no costs arise on the mere lodging of a fiat. White v. Foster, 4 R L. 666. 2. No costs can be asked for an attorney's letter sent before the commencement of the action, as it is a voluntary courtesy, and not a necessary proceeding. Boiven v. Lee, 3 Rev de Ltfg. 301 , K. B. 1812. 3. The defendant who tenders the principal and interest claimed, after issue of a writ of summons, but before service, is still liable for the costs incurred. Boucher v. Lemoine et al. 4 L. C. J. 300, S. C. 1860. 4. Where the parties have settled the action before return, the attorney for the plaintiff cannot recover his costs against the defendant who was led to believe proceedings wore ended. Wutkina et cd. v. Denman, 4 R L. 383, 0. 0. 1872. 6. Where an action was settled as to the principal only and defend- ant afterwards neglected to pay the costs — Held, that the action might be returned into court and proceeded with for the costs only. Darche et al. V. Debw tb Debw, 1 L. 0. R. 238, S. 0. 1861 ; Qagnon v. McLeiah, 3 Rev. de L6g. 393, K. B. 1821. 6. Where the parties had settled the case after the return of the action without the knowledge of the plaintiff's attorney — Held, that the latter was entitled to proceed to judgment for his costs. CfMrleboit v. Coulombe, 7 L. 0. J. 300, S. 0. 1863 ; WiUiatnt v. M. And the opposant must be considered as plaintiff, and the con- testant aa defendant, in order to determine the ooata due to each partj. lb. 27- Where two hypothecary creditors had been collocated in a report of distribution, in accordance with the registrar's certificate, and it was discovered that they had been paid their respective claims some time previously — Held, on the contostation by two interested parties of such collocations, where the cfeditors in question admitted the payment of their claims, that the costs should be divided between the two parties contesting in equal shares, but that the costs of one con- testation only should be allowed. Coumoyer v. FlanU etal.l'Bi.'L, 38, S. 0. 1868. ;-^, 28. A hypothecary creditor who has been collocated for more than remains due to him, the balance having been paid by a previous judg- ment of distribution, cannot be held for the costs of the contestation of such collocation, if he have filed with the prothonotary after con- testation a declaration of the amount so remaining due. — Qlohtnihy & Daoust, & Morecm & Qlobenaky, 2 R. L. 608, 1870. 29. A judgment setting aside the verdict of a jury, and condemning the respondent to pay the costs incurred in the court below, includes also the costs of the trial by jury, and not only the costs upon the motion for setting aside such verdict. Ouimet et al. & Papin, 9 L. C. R. 268, Q. 3. 1869. 30. On a contestation concerning the costs of a jury trial where the verdict of the jury had been set aside and a new trial granted in ap- peal, though refused in the court below — Held, that the party who succeeded in the first place, and in whose favour the verdict of the jury was rendered, is not, according to the practice of the courts, liable for the costs of the trial. Beavdry v. Papin & Papin, 3 L. 0. J. 46, S. 0. 1867. 31. Where a defendant en garantie confesses judgment for a portion only of the principal demand, and contests the principal action « against the plaintiff. Woodrington T. Taylor, 3 Rev. de L^. 393, K. B. 1820. 33. Where action had been brought against a municipal corporation attacking one of its resolutions the court cannot condemn the council- lors who passed such resolution to pay the costs, unless they have been made parties to the case. The Attorney Oeneral v. Hie Corporation of IberviUe, 6 B. L. 241, S. C. 1874. 34. The costs on a petition to set aside a municipal by-law should be taxed as iu a first-class non-appealable case in the Circuit Oourt. Bowrbonnais et al. v. The Corporation of the County of Sovlanges, 17 L. 0. J. 69, C. 0. 1872. 36. A revenue inspector suing in the Queen's name for penalties is not liable for coats. Hague exp, & Mvrray, 3 L. C. B. 287, S. C. 1863. 36. In rendering judgment in a cause brought before the court on certiorari — Held, that costs would not be granted against a public offi- cer who prosecutes in pursuance of his duty. DeBeaujeu exp., 1 L. 0. J. 16, S. C. 1866. ' 37. And on an application for certiorari from a conviction under the license law — Held, that no costs would be given against the collector of inland revenue prosecuting in the execution of a public duty. Slack exp. d: Bellema/re, 7 L. 0. J. 6, S. C. 1862 ; 34 Vict. cap. 2, sec. 87 (Que.). 38. Where a writ of prohibition was maintained against the collector of inland revenue it was without costs as being a public officer. Dubord V. Boivin, 14 L. 0. J. 203, S. C. 1866. 30. A curator to the estate of an absentee, who defends and contests an action against such estate, is personally liable for the costs of the action. Whitney v. Breioster, 4 L. C. J. 298, S. C. 1866. 40. And where action was brought by a curator to an absentee, in his quality as such, and the action was dismissed as unfounded in law — Held, that the curator was personally liable for the costs. St. Jacques V. Parent, 2 B. L. 96, C. C. 1868. 41. Defendants who have pleaded separately to a joint and several action may be jointly and severally condemned in costs. Perkins v. Ledaire et al. 7 L. C. J. 78, C. C. 1866. 42. The endorser of a promissory note, though sued with the maker, is not liable to the costs incurred by the maker on an exception to the form, where he has pleaded separately. Boucher d: Latour et al., 6 L. 0. J. 269, Q. B. 1862. OP COSTS, ART. 478. 255 43. The patties to a suit are not jointly and Mveral bound to the payment of the costs of an expertiae ordered at the instance of one of the parties. Brown d: WaUaee, 5 L. 0. J. 60, Q. B. 1860. 44. Where several persons have been condemned to pay different sums of money indiTidually as damages, they are liable for the oosta jointly and severally. Oenier v. Woodman et al., 13 L. 0. J., 201, 8. C. 1868. 46. The Conrt of Review cannot afford relief ftgaiust the condemna- tion for costs in the court below. Macdoiuild et cd. v. itoUeur, 13 L. C. J. 189. S. C. R. 1868. 46. A defendant who succeeds in review in obtaining a reversal of a considerable part of the judgment complained of may, nevertheless, be condemned to pay the costs in review. Lynch v . Bertrand, 13 L. C. J. 189, S. C. R. 1869. 47. The Court of Review will not give costs to parties who seek to rectify a trifling error which had already been rectified by retraxit, Souliere v. Heron, 1 Legal News, 87, S. 0. R. 1878. 48. Costs will be given against a party who succeeds in review and in the Superior Court on a technicality, if fraud is proved against him. BUmin v. Langelier & Langelier, 3 Q. L. R. 272, S. C. R. 1877. 49. In an action en bomagef if the defendant deny the plointiSTi rlglit of action, he must be condemned to pay costs. Weymeas et al. & Cook, 2 L. C. R. 486, Q. B. 1852. 50. In an action en bornage where the defendant pleads that he had been always ready to have the boundaries established, and prays acte of his willingness to do so, and prays also that plaintiff's action may be dismissed with costs, the defendant will be condemned to pay the costs of the suit, although the costs of the homage be divided. Daiiaereau et al. V. Privi, 1 L. 0. J. 283, S. C. 1857. 51. But where in another action of homage the defendant pleaded that he had no previous notice, and that he had always been ready to have the boundaries in question established, the plaintiff was held liable for the costs of the action, iflack v. Short, 2 L. C. J. 81 , Q. B. 1857. 52. But where in a later case the defendant prayed for the dismissal of theaction, while offering to re-establish the old boundaries, he was con- demned in costs. Thihault & Lavallie, 6 R. L. 80, S. C. 1874 ; Pate- naude v. Charron, 17 L. C. J. 85. 53. The costs of an action en garantie will be given against a plain- tiff suing before the expiry of the delay of payment, when the defend- 256 OF COSTS, ART. 478. «nt calls in hU garcmt fortnd. Aylurin v. Jud/ah & Judah ▼. BoUa}id, 7 L. C. R 128, S. 0. 1867. 64. Where the heirs to a suooession were allowed to renounce on the day fixed for the hearing of an action against them — HM, that the plaintiff was entitled to costs up to the time of rennnoiatipn. MuUwU land V. Hatpin e< al. 6 R. L. 184 & 17 L. O. J. 318, 8. 0. 1873. 65. Where to an action for the balance of the price of sale of an im- moveable, the defendant pleaded fear of eviction, and the plaintiff was ordered to give security before payment of such balance, costs were given against the plaintiff. Bernetie v. Madore, 7 L. 0. J. 32, S. G. 1862. 66. In a case where the defendant had pleaded his right to security against trouble, etc., and the plaintiff with his answer filed dischaiyes duly registered of the mortgages complained of, he was granted full costs of the contestation. Titreau v. Bouvier, 15 L. C. B. 76, S. C. & S. 0. R 1863. 67. And in a similar case where the defendant set up trouble by mortgages registered against the immoveable, some of which were dis- charged after the filing of the plea — Held, that the plaintiff would obtain judgment for the amount due, with costs up to the filing of the plea, and that costs after the filing of the plea would be granted to defend- ant. CoUette V. Dansereau, 15 L. 0. R 83, S. 0. 1864. 58. Where the defendant was sued for an instalment of the purchase money of an immoveable, and pleaded right to security against moi-t- gages, etc. — Hdd, that the plaintiff should pay costs. Brwneau w. Bobert, 6 L. 0. J. 247, S. 0. 1862. 59. Where the defendant pleads trouble to an action for insialments of purchase money, and offers to pay on security being given, the plain- tiff should be condemned to pay the costs of contestation. McDonald a al. V. MoUeur et al 1. L. 0. L. J. 108, S. C. R 1866. 60. Where a person sold through an agent to one who had reason to believe that the agent was acting for himself, and afterwards brought action for the price of sale — Held, that he would get judgment only for the debt, and the costs would go against him. Labeile v. Patria, 4 B. L. 530, 0. C. 1873. 61. The Crown does not receive or pay costs. Chandler & The A t- tomey-Qeneral, 3 Rev. de L6g. 371, K. B. 1835. 62. A surety cannot be called upon to pay costs of an action against the principal debtor where he has not been notified of the action. Nye V. Isaacson, 6 L. 0. J. 117, 0. 0. 1861. as. In ai returned f< and costs n belunr, that 8U1U equal i 1 L. C. J. ] 64. And personal wn rendered foi that amount C. J. 266, S. 05. In an . 9100, and a ( ^es given, e the clatss of a< verdict haver S. C. 1864. 66. Butwh reducible to t bursements nc tiff. lb. 67. And wh -field, that ff^arner et al. 68. In an taxed acoordin L. C. L. J. 67 69. Where quitted, he is that his co-de Thompson, 3 B 479. Cos« tioii of a bill and if the air might have plaintiff is en allowed in su orders; such 17 a( OP COSTS, ARTS. 478-479. 257 63. In an action of damages before a jury, where a yerdiet had been returned for the plaintiff for an amount under forty shillings sterling, and costs were awarded generally — Held, confirming judginent of court below, that the judgment for costs would be interpreted as meaning a 8U1U equal to ^t awarded by the jury for damages. Ledue ▼. Buaaean, 1 L. C. J. 191, Q. B. 1867. 64. And in another case — Held, that in an action of damages for personal wrong, instituted in the Superior Court, where judgment is rendered for £10 and costs, the costs are taxed f ^ in a judgment for that amount in the Circuit Court. WUson t. Morria <& Bavaria, 1 L. C. J. 266, S. 0. 1857. 05. In an action of damages for libel where a verdict was rendered for 3100, and a question as to costs arose — Held, that the amount of dam. ages given, even where it exceeded forty shillings sterling, regulated the class of action as to costs, if the judgment of the court ratifying the verdict have not otherwise fixed it. Desaulles v. Tachi, 8 L. 0. J. 342, S. C. 1864. 66. But where, as in the above case, the costs, under that rule, were reducible to the tariff of a Circuit Court action — Held, that the dis* bursements necessary for a trial by jury would be allowed to the plain- tiff, lb. 67. And where the court awarded damages to the extent of $5 only —Held, that no greater amount than $5 for costs could be allowed. Wartier et al. v. Rolf, 17 L. C. J. 292, S. C. R. 1873. 68. In an action of ejectment, where no rent is due, the costs will be taxed according to the amount of the annual rent. Smith v. Noad , 1 L. C. L. J. 67, S. 0. R. & 2 L. C. L. J. 59, Q. B. 1866. 69. Where two defendants join in an action of trespass, if one be ac- quitted, he is entitled to his costs against the plaintiff, notwithstanding that his co-defendant be found guilty. Henderson v. Thompaon & Thompson, 3 Rev. de Ltfg. 392, K. B. 1817. 479. Costs are taxed by the prothonotary upon produc- tion of a bill thereof, and according to the tariffs in force, and if the amount awarded by the judgment is such that it might have been recovered before an inferior court, the plaintiff is entitled to such costs only as wou Id have been allowed in such inferior court, unless the court otherwise orders ; such taxation may^ within six month.s, be submitted 17 268 OF COSTS, AKT. 479. for the revision of a judge after the adverse party has re- ceived such notice as the judge may deem sufficient. Neither the application for revision, however, nor the delay allowed for such revision, can suspend the execution of the judgment ; saving the debtor's recourse ift the event of the amount being levied or paid before such revision. Ord. 1G67, tit. 31, aH. 1 ; 26 Geo. III., c. 2,'«. 4 ; C. £(. L. G. c. 82, s. 23;C. P. C. 130-131. 1. An attorney ad litem to be entitled to receive his fees and dis- bursementa from his own client need not produce a taxed bill of costs. CherrUr A Tiim, 1 L. 0. It.'402, Q.B. 1851. 2. The Court of Review has no jurisdiction to revise the taxation of a bill of costs in revision. BeUelsle v. Lyman et al., 14 L. 0. J. 137, S. C. R, 1870. Ryan v. Devlin, 21 L. C. J. 28, S. C. R„ 1876. 3. Where the Superior Court dismissed the plaintiff's action, but without costs — Held, that the Court would not interfere in a mere mat- ter of costs. O'HaUoran v. Sweet, 16 L. C. J., 318, S. 0. R. 1872. 4. Where a party in revision succeeds in obtaining a modification of the costs only, he will not have costs of revision, but each party will pay his own. The Intercolonial Coal Company v. Shaw, 4 R. L. 539, S. 0. R. 1873. 6. When a party moves to revise certain items of taxation in a bill of costs by the prothonotary, he thereby waives his right to object to the other items of taxation, and a second motion to revise these will be rejectedalthough the party moving offers to pay the costs of his second motion. Kerr v. Ougy, 10 L. C. R. 478, S. C. 1860. 6. The issue of an execution for the amount of a judgment and costs previous to the taxation of the costs is illegal. Aiukt v. Aaaelin d- Amlin, 15 L. 0. R. 272, C. C. 1864. 7. The costs in a contested case must be taxed before execution can issue for them. Langevin v. Martin, 3 R. L. 447, S. C. 1871. 8. The prothonotary has power to tax an Assignee's bill of costs in the absence of a judge. Lynch et al. di Tyre db St. Amour, 5 B. L. 417, S. C. 1874. 9. But a bill of costs taxed by the prothonotary may be revised by a judge. lb. 1. The at in him. Es. Costs in a of the isame a Oauthier v. 2. An att< of the witnei i^. that the same is made in good faith tvv tlie soij purpose of obtaining justice, and the said deponent hath signed (or hath declared himself unable to sign, being thereunto duly required). Signature, G. H. , this day Sworn before me, at of! ' , 18 . J. P. Signature of the Judge, Prothonotary, Clerk or CoTnmissioner. £■!. ItEVISION OF J( noMKNTH HV DKTAULT, ARTS. 486-488. 265 1. When the defendant sought to eet eaide a judgment obtained in vacation— HeM, that he waa buund to depoatt only the Amount of ooeta incurred by the plaintifT after the return of the action up to obtaining judgment inoluaively, and that without the fees of tho pltuntiff'a at- torney, and that he waa not bound to furnish to th« plaintiff a copy of the affidavit Aled with hia opposition. Oauthier v. AfarcAarwi, 6 L. 0. J. 101, S. C. 1861. 2. The omiaaion to depoait with an opposition to a judgment a auffl- cient aum to pay the costs incurred by the plaintiff from the return of the writ ia not a aufficient cause for tho rejection of the opposition. Venner v Latnontagne d Lamontagne, 16 L. C. U. 49, 0. C. 18C4. 3. The affidavit accompanying an opposition to a judgment must set forth that the facts therein stated are true " to the knowledge of the deponent." Shepherd v. Morrin A Motrin, 5 K. L. 245, 0. C. 1872. 4. And where an opposition to a judgment by default was filed by the defendants on the aole ground that one of thorn had been sum- moned by a wrong name — Held, that such an opposition waa in the nature of a preliminary exception to the action, and muat consequently be accompanied by the deposits for coats required in auch cases, in addition to that required by article 486. JubinviUe d The Bank of British North Ameiica, 18 L. 0. J. 237, Q. B. 1874. 48T. The opposition mentioned in article 484 is filed in the prothonotary's office ; but the prothonotary must not receive it unless a copy thereof is at the same time left for the plaintiff. Ibid. «. 118. 488. The filing of such opposition has the effect of sus- pending the sale under the seizure until it is decided by the court. The prothonotary must grant a certificate in dupli- cate of the filing of the opposition mentioned in the pre- ceding article ; and one of the duplicates must be given to the officer making the seizure, who must give a receipt there- uh; iu default of which it is served upon him at his own ost . The officer is thereupon bound to stay his proceedings, \\\d to return into court the writ of execution and the cer- tificate whjfh he has received. Ibid. 8. 115, § 3, 266 OF REVIEW BEFORE THREE JUDGES, ARTS. 489-494. 489. If the opposition is filed before the issuing of a writ of execution, notice of the filing thereof must be given to tlie plaintiflT, and the delays for contesting the same are computed from the date of the service of such notice. Ibid. 8. 116. 490. The petition for revision, and the opposition, are held to form part of the proceedings upon the original suit, and to be a defence to the action, and as such are subject to the provisions concerning the contestation of ordinary suits. Ibid., 88. 116, § 3,-119, 120. 491. Tf the opposition is maintained, in whole or in part, the costs incurred upon the execution are borne by the plaintiff. /6td. § 123. > 499. If the opposition is maintained by reason of any irregularity in the proceedings of the plaintifi^, the court, in maintaining the opposition with costs, may condemn him to such further costs as it may think fit, but not exceeding in amount the sum deposited by the defendant. Ibid., s. 124. -.. 493. If no opposition is made to a judgment rendered in vacation, the allegations of the declaration are held to be admitted and proved. Ibid., a. 122. ^:% SECl'ION II. OP REVIEW BEFORE THREE JUDGES, v, 494. A review may be had : 1 . Upon every final judgment from which an appeal lies ; 2. Upon every interlocutory judgment ordering some- thing to be done that cannot be remedied by the final jvdg- m£nt; 3. Upon every interlocutory judgment, whereby the mat- ter in contestation is in part decided ; OF REVIEW BEFORE THREE JUDGES, ART. 494. 267 mat- 4. Upon every interlocviary judgment which v/nnecessa- rily retards the jvnal hearing or decision of the case ; 5. {Upon every judgment or order rendered by a judge in summary matters, under the provisions contained in the third part of this code.] 27-28 v., c. 39, 8. 20. 34 Vict., c. 4 C^.;.- 5. " Article 494 is hereby repealed, and the following Article is sub- stituted in lieu thereof : 494. A review may be had : 1. Upon every final judgment from which an appeal lies ; 2. Upon every judgment or order rendered by a judge in summary matters under the provisions contained in the third part of this code ; 3. Upon any judgment rendered on any petition or motion to set aside or quash an attachment before judgment or capias ad reapon- dendtim. 10. The judges of the Superior Court, at their sittings in review, shall also have exclusive original jurisdiction to hear and determine all motions for judgment upon a verdict, or for new trial, or for judg- ment non obstante veredicto or in arrest of judgment, in cases in the Superior Court, in the districts of Quebec and Montreal." See 35 Fict., c. 6, s. 13 (Qt*e.), under Art. 423 ante. 37 Vict., c. 6, CQit€.); 1. " TSo person who shall have inscribed in re view before three judges, any cause in the Circuit Court susceptible of appeal to the Court of Queen's Bench, or any cause in the Superior Court, and shall on such inscription have proceeded to judgment, shall be entitled to appeal to the Court of Queen's Bench from the judgment of the Superior Court sitting in review, if such judgment confirms that rendered in the first instance. 2. Causes adjudicated upon in review, which are susceptible of ap- peal to Her Majesty in her Privy Council, but the appeal whereof to the Court of Queen's Bench is taken away by this Act, may neverthe- less be appealed to Her Majesty by observing the same formalities and provisions and subject to the same conditions, as in the case of judg- ments rendered by the Court of Queen's Bench (appeal side), and with the same efiect, as if every provision of law, in relation to appeal tu Her M:;joBty from judgments of the Court of Queen's Bench was anew enacted with respect to the Superior Court sitting in review, its officers or their office." 3. Repeals 36 Vict., c. 12 (Que.). ' ■ ' 268 OF REVIEW BEFORE THREE JUDGES, ART. 494. 1. A judgment maintaining a demurrer to part of a declaration is an interlocutory judgment, and cannot be revised by three judges in review. Lottinvtile v. McGrcavy, 4 Q. L. R. 242, S. 0. R. 1878. 2. The decision of a judge out of term upon a contrainte par cwpg is susceptible of being reviewed. An error in the date of the writ is not fatal. Nolan v. Dastmu, 4 Q. L. R. 335, S. 0. R. 1878. 3. A writ of prohibition issued to prevent a judgment by the Court of Quarter-Sessions in the matter of an inflection of the License Act. The judgment of the Superior Court was confirmed in review, and the magistrate who resisted the prohibition was refused the right to appeal as there was cfwse jugSe between the parties, although it was not he who had inscribed in review. Doucet <& St, Amand, 4 Q. L. R. 140, Q. B. 1878. 4. A judgment rendered in the C. 0. under the provisions of Art. 698 et seq. of the Municipal Code is subject to appeal, and consequently to be reviewed. McLaren db The Corporation of the T. of Buckingham, 17 L. C.J. 53, S. C. R. 1872. 5. The Superior Court has no jurisdiction in revision of a judgment which is not appealable. Taylor v. Mullen, 11 L. C. J. 48, & 17 L. C. R. 397, S. C. R. 1866. 6. The Court of Review cannot afford relief against a condemnation to costs in the court below. MacdoruiM et al. v. Mollevr, 13 L. C. J. 189, S. C. R. 1868. 7. An inscription for review in an action under the Lessor and Lessee Act, in which the amount of rent or annual value does not show any jurisdiction, will on motion of the respondent be discharged. Kobituon et al. v. Watson ea qual. 12 L. C. J. 215, S. C. R. 1868. 8. The Court of Review hsw no jurisdiction in revision of an inter- locutory judgment which is not appealable. Beaudry v. Workman, 12 L. C. J. 219, S. C. R. 1868. 9. The Court of Review has no jurisdiction to revise the taxation of a bm of costs in revision. BeUeiale v. Lyman et al. 14 L. C. J. 137, S. 0. R. 1870. 10. The Court of Review has no jurisdiction to hear an appeal from an order of a judge in chambers, empowering a married woman to bor- row a sum of money on the security of her real estate without the consent of her husband. Dufcmx exp. db RobiUard, 20 L. C. J. 305, S. C. R. 1876. 11. The plaintiff whose action has been dismissed san-i recourt may in OF REVIEW BEFORE THREE JUDGES, ARTS. 494-496. 269 revision seek that it be dismissud only aauf a at pourvoir. Pillar ei al. V. lame, 3 R. L. 704, S. 0. R. 1871. 12. In matters pertaining to municipal oorporationB there is no ap- peal from the Superior Court to the Court of Uoview. Beaudr» ^4 Workman, 12 L. C. J. 214, S. C. R. 1868 ; Fitet v. Fmimier, 3 Q. L. R. 334, S. 0. R. 1877. 13. A judgment homologating a report of distribution may be in- scribed for revision or appealed from even when no contestatfon has been filed. Eastern Towtmhip Bank tfc Pacand, 17 L. C. R. 126, 9 L. C. J. 166, 2 L. C. L. J. 270, S. C. & Q. B. 1866. 14. A party may inscribe in Review from a judgment rendered on a writ of habeas corp^is by a Judge in Chambers. Reg. v. Hull, 3 Q. L. R. 136, a. C. R. 1876. 15. No right of revision exists in favour of the Crown when the ri^ht of appeal is denied by law. The Atty.-Oen. v. I%e Corpwation of the Co. of Compton, 16 L. C. J. 258, S. C. R. 1871. IC. No personal action in which the amount demanded exceeds $600 can be brought to review under 36 V. c. 12 (Que.), which is an amend- ment of Art. 494, although such article is not expressly designated as required by the Act 31 V. c. 7, s. 10 (Que.). Oibsoii et al, v. Liiidsay, 17 L. C. J. 244, S. C. R. 1873. 17. When the amount of a judgment does not exceed $100 and the creditor acquiesces in the judgment, there is no right of revision, al- though the amount demanded may have exceeded that amount. Lefe- h>re v. Murdoch, 13 L. C. J. 328, S. C. R. 1869. 495. The review takes 'place before three judges of the Superior Court, and the judge who rendered the judgment complained of m,ay he one of them. Ibid, 88. 20-25. 36Vict.,c. 10, CQue.); 8. Art. 495 is repealed, and the following substituted therefor : 495. " This revision takes place before three judges of the Superior Court, and the judge who has rendered the judgment complained of, cannot sit at the same." 496. The review of judgments rendered in the districts of Montreal, Ottawa, Terrebonne, Joliette, Richelieu, St. Francis, Bedford, St. Hyacinth, Iberville and Beauhar- 270 OF REVIEW BEFORE THREE JUDGES, ARTS. 496-497. •■ t . nois, takes place at the city of Montreal ; that of judgments rendered in the districts of Quebec, Three Rivers, Saguenay, Ohicoutimi, Qaspe,. Rimouski, Kamouraska, Montmagny, Beauce and Arthabaska, at the city of Quebec. Ilnd., 8. 26. 497. This review cannot be obtained until the party de- manding it has deposited, in the office of the prothonotary of the court which rendered the judgment, and within eight days from che date of such judgment, a sum of twenty dol- lars, if the amount of the suit does not exceed four hundred dollars ; or of forty dollars if the amount of the suit ex- ceeds four hundred dollars, or if it be a real action ; toge- ther with an additional sum of three dollars for making up and transmitting the record, when the judgment has been rendered elsewhere than in the cities of Quebec and of Montreal. The amount thus deposited is intended to pay the costs of the review incurred by the opposite party, if the court should grant them, if not, it is returned to the party by whom it was deposited. Ibid., 8.21. See 34 Vict, c. 4, 8. 4 (Que,), under Art. 463 supra. 1 . The court will not order the prothonotary to refund a deposit of $40 made by a party to whom the deposit has been refunded on his succeeding in review, although the judgment in review be reversed, and Jie judgment reviewed be re-established in its entirety. Beg. ex rel v. O'Farrell ; M ii:\. H:r^ SECTION I. OF PUTTING IN SECURITY. i>ih til 4. Every judgment ordering security to be given must fix the time within which sureties shall be offered. G. P. C. 617. SIS. Sureties are offered after notice served upon the opposite party, and, when not objected to, they enter into a bond at the prothonotary's office. Ord. 1667, tit. 28, art. 2 ; Fothier, Proc. 147 ; G. P. G. 518. 31 Vict. c. 7 (Que.). " 1, § 24 : The word " security " means sufficient security, and one surety is sufficient therefor,unless two or more are expressly required." SW. Except in cases where the law requires only personal justification, if a surety is objected to he may be required to give in a declaration of his real property, together with his titles thereto. Sureties may, in ail cases, be required to justify on oath their sufficiency, and the judge or prothonotary may receive and administer the necessary oath. Ord. 1667, tit. 28, art. 3 ; C. P. G. 518. OF ACCOUNTING, ARTS. 517-622. 281 517. A surety may be objected to : 1. If he has not the qualifications required according to the title Of Suretyship in the Civil Code ; 2. If he is not sufficient. Pothier, Proc. 148. ill8. The sufficiency of a surety is decided upon the docu- ments and affidavits produced, without a proof being or- dered. Ord. 1667, tit. 28, art 3 ; Pothier, Proc. 148, C. P. G. 521. •M9. If the surety is accepted, the bond is drawn up and entered into in conformity with the judgment, and remains in the prothonotary's office as part of the record in the case. Qrd. 1667, tit. 28, art. 4 ; C. P. G. 522. 390. The acceptance of sureties is decided upon sum- marily, without any petition or writings, and the bond is entered into notwithstanding oppositions or appeals, and without prejudice thereto. Ord. 1667, tit. 28, art. 3 ; Pot- hier, Proc. 148, C. P. G. 521. I I . ^ SECTION II. It OF ACCOUNTING. * tIJII. Every judgment ordering an account must fix a de- lay for rendering it. Ord. 1667, tit. 28, art. 8 ; Pothier. Proc. 89; (7. P.O. 530. jS99. The account must be rendered nominately to the party entitled to it : it must be sworn to and filed in the prothonotary's office within the delay fixed, together with the vouchers in support thereof. Ord. 1667, tit. 29, art. 8 ; Pothier, Proc. 89, G. P. G. 534. The court may, however, upon motion of which notice has been duly given, extend the delay for rendering the account. Pothier, Proc. 89. 282 OF ACCOUNTING, ABTS. 623-527. ih •S33. The account must contain, under separate heads, the receipts and expenditure, and close with a recapitula- tion of such receipts and expenditure, establishing the balance ; whatever remains to be recovered being reserved for a separate head, Ord. 1667, tit 29, art. 7 ; G.P. C. 533. 1. An account rendered and fyled under a judgment will be rejected as irregular if it does not exhibit the three heads of receipts, expendi- ture, and balance remaining to be recovered. Lea Ouri <&c. de Betm- hitmoia v. RobUlard, 21 L. C. J. 122, S. C. 1877. ff94. Under the head of receipts must be placed all sums which the accounting party has received, and all those that he ought to have received during his management. Pothier, Proc. 90. ,-.:, '/ -^ - ■ ,, - , - ../ ,.;',fr j^ - S9S The accounting party cannot place under the head of expenditure the costs of the judgment ordering him to account, unless he is authorized to do so by the court ; but he may charge under that head his travelling expenses, the attendances of the attorney who made up the account, thj cost of presenting and verifying it, and of whatever copies thereof are required. Ord. I m7, tit. 29, art. 19 ; C.P.C. 532. 1. In an action to account, an account unsustained by vouchers will not be rejected on motion when it is established by affidavit that the vouchers are in the possession of third parties. Chevalier v. OwmUier et al. 21 L. 0. J. 308, S. 0. 1877. SfHi. If the account shows an excess of receipts over ex- penditure, the party to whom it is rendered may provision ally demand execution for the balance, saving his right to contest the remainder of the account. David v. HayeS: Montreal, 29th July, 1846, in appeal lOth N been made upon the defend- ant, no other demand of payment nc 'd be made in such suit previous to the further execution of any other siich writ, whether in the same or in any other district" 1. By article 546 a writ of attachment after judgment should be addressed to the sheriff of the district in which it is to be executed, being the district where the judgment was rendered, and not to a bailiff. Rylaivd v. Delide £ Worhman et cU. 14 L. C. J. 17, S. C. 1869. tS46. Judgments can cly be executed upon the party against whom they are rendered. If he changes his civil status or dies before execution, judgment cannot be executed against him nor against his representatives, unless another judgment is obtained, declar- ing that the former may be enforced by execution against M - r ^. 288 C0MPUL80KY EXECUTION OF JUDOMLNTS, ARTS. 646-547. him in the one case, or his representatives or assigns in the other. But if the party dies or changes his civil status after execution has commenced, the execution continues. G. P. a 168; Pothier.Proe, 162. 1. A demand to make a judgment executory against the repreaonta- tive of a deceased defendant, and others against whom it was rendered, does not necessitate the calling in of the others who are not a£fected by it. DestimauviUe t. Touaignant, 1 Q. L. R. 62, S. C. 1874. 2. The execution of a judgment must be suspeuded in the event of the death of the defendant during the seizure, and before contin'jing the proceedings, the judgment must be made executory against the representatives of the defendant. Dorion v. Dagenaia et al.Qh. C. J. 139, S. C. 1865. . 1 -. ; r , ^ 3. Where the plaintiffs opposed a seizure for costs on the ground that some of them had changed their status since the institution of the action — Held, that as the seizure was made only on the effects of two of the plaintifls, who had not in any way changed their status, there was no ground of opposition whatever. DeOaspi et al. d: Aaidvn t, 123. SECTION III. OF EXECUTION IN PERSONAL ACTIONS. SS\. Judgments for the payment of a sum of money can- not be executed before the expiration of fifteen days from their date. Nevertheless upon an application of the plaintiff acebm- panied ^by an affidavit establishing circumstances under * 19 290 OF EXECUTION IN PERSONAL ACTIONS, ARTS. 551 553. ■; I I which simple attAchment might issue before judgment, the judge may allow execution to issue before the expiration of fifteen days, but the sale cannot take place any sooner than if the writ of execution had issued after the ordinary delay. G. 8. L. G. c. 77, s. 27 ; c. 83, s. 201 ; 1 Pig. 411. 1. The sureties in appeal, against whom action is brought for costs, are not entitled to fifteen days' delay from the day of judgment. La- rote et al. it Wilton, 16 L. 0. J. 29, Q. B. 1873. 2. The issue of an execution for the recovery of the amount of a judgment and costs previous to the taxation of costs is null. Audtt V. Aitelin ds AitdvUt 16 L. 0. R. 272, S. 0. 18d4. 3. The execution of a judgment rendered in appeal cannot take place before the expiration of fifteen days from the date of judgment. Dvhamt v. Lawmhe et al. ds Man opposition can be filed to set aside the seizure of immoveables. Paige v. Savard, 11 L. 0. R. 3, 8. C. 1860. 7. Where the defendant himself told the officer chai-ged with the OF KXKflTTlON IN PKRSOSAL ACTIONS, ARTS. 5)4-')5:». 29.'l exucution that hu hnd no movoablei, and iiftort^iirtU broiigltt o|>|)oiii- tioii on thu ^onnd atatod above, exactly the lania deoiaion wa« rou- derod. Amobl v. (Campbell, 9 L. C. H. 33, y. IJ. 1868. 8, A seiznre of niovonblo and immoveable imtperty on the RAtno day in good, there being nothing in the atatutu prohibiting •iiich iit'ixnre. Kierzhnv^i v, Tahn A- Talon, 7 L. C. U. 351), S. C. 1867. nSS, [Seizure of moveables in execution takes place under a writ a writ stayed until the exact amoimt due upon the judgment is determined. La Banque du Peuple v. Donagani dk Dona- gani, 3 L. 0. K, 478, S. 0. 1853. 8. A creditor suing out a writ of execution, must give credit upon the writ for any amount he may have received thereon, and an oppo- sition of the defendant founded upon such omission, will be main- tained with costs. Fournier d: RusseU, 10 L. C. R. 367, Q.B. 1860. 9. And that without depositing or tendering the balance due under the judgment. Lafleur v. VeroeiUe da VerveUUf I R. L. 46, S. C. 1869. Patenaude v. Ouertin da Ouerim, 1 Legal News, 131, S. C. 1878, 22 L. C. J., 67. 10. An opposition based on a partial payment of the amount ; I. From and after the passing of this Act, public lands, which shall be conceded or granted to boria fidz settlers in virtue of and in confor- mity with the provisions of chapter 22 of the Consolidated Statutes of Canada, intituled " An Act respecting the sale and the management of the public lands," and in conformity with the orders in council and regulations arising from the said Aci ahall not, except for the price of such lands, be mortgaged or hypothecated by judgment or otherwise, nor seized nor sold under authority of law, for any debt or debts con- tracted previous to the grunt or cone ^ssion of such lands, articles 2034 and 2''?! of the code of civil procedure'*^ to the contrary notwithstand- ing ; aud further, no one shall seize or sell under authority of~law, for any such debt, the right, title or interest of any settler, in or upon any laa^ which shall hare been so conceded to him. 2 From the time oi the occupation of any lot of land, and during the ten years following the issue of patents for the lands of settlers, conceded and granted as aforesaid, the following chattels shall, with- out prejudice to article 566 of the code of civil procedure, be exempt from seizure under any writ of execution issued out of any court what- soever, in this Province, viz. : 1. The bed, bedding, and bedstea<*8, in ordinary use by the debtor and his family. 2. The necessary and ordinary wearing apparel of the debtor and his family. 3. One stove and pipes, one crane and its appendages, and one pair of andirons, one set of cooking utensils, one pair of tongs and shovel, one table, six chairs, six knives, six forks, six plates, six teacups, six saucers, one sugar basin, one milk jug, one tea pot, six spoons, all spinning wheels and weaving looms in domestic use, anii ten volumes of books, one axe, one saw, one gun, six traps, and such fishing nets and seines as are in common use. 4. All necessary fuel, meat, fish, flour and vegetables, provided for family use, not more than sufficient for the ordinary consumption of the debtor and his family for three months. 5. Two horses or two dit.nght oxen, four cows, six sheep, four pigs, eight hundred bundles of hby, other forage necessary for the support of these animals during the winter, and provender sufficient to fatten one pig, and to maintain three during the winter. 6. Vehicles and other implements of agriculture. " ♦ The Civil Code (?). iHr OF SEIZURE OF MOVEABLES, ARTS. 556-557. 29r 7. The debtor may select, from any larger nuoiber of the same kind of chattela, the particular chattels to be exempt from seizure, in virtue of this section. But nothing in this section contained shall exempt from seizure any of the chattels enumerated in subsections three, four, five or six, of this section, in payment of any debt contracted in respect of such said chattels. 3. Nothing in this Act shall be held as exempting any land from the payment of, or being sold for the rates or taxes, which now are, or in future shall be, legally imposed thereon. 36 Tict. , 0. 19, s. 2 (Que.), extends the provisions of this Act to grants made under 32 Vict., c. 11, and to all grants of lanua made by the Crown. 1. Where a clause in a lease declares the •/ all the moveables furnish- ing the house shall without exception be liable for the rent and may be attached therefor, the tenant cannot claim that they are exempt tnder arts. 557 and 668. Rohitaille v. Bolduc, 4 Q. L. R. 179, C. C. i878. 2. Where the defendant opposed the seizure of his sword on the ground that it was a part of his necessary military equipment and ap- pointments, and as such was not liable tu seizure for his personal debts, the opposition was maintained under the authority of the Orduiance of 1639. Wade v. Huaaey 1. Undor a writ of attaohmeab before judgment the sheriff, among other things, aewjA a chest of drawers, whioh the defendant alleged -contained books of accounts an Stl9. The seizure of moveables and moveable property is established by an inventory made by the sheriff, or his deputy, or by a bailiff authorized by him to that effect. Ord. 1667, tit 33, aH. 6 ; Pothier, Proc. 156-7 ; G. P. C. 586. See 33 Vict. o. 17, «. 1 (Que.), a/nJte under art. 48. OF seizure: of moveables, abt. 560. 299 560. The inventory must contain : 1. Mention of the actual domicile of the creditor ; 2. Mention of the writ of execution, its date and its pur- port ; 3. A description of the things seized, their number, weight and measure according to their nature, and in the case of a registered vessel of fifteen tons burthen or over, the recital required by section 13 of chapter 41 of the Consoli- dated Statutes of Canada. C. P. G. 586 ; 2 Z. C R 471. 4. The appointment of a guardian or the name of the depositary furnished by the debtor ; 5. The signature of the guardian or depositary, and of the witnesses, in the case of article 569, or mention that they cannot sign and the signature of the seizing officer ; 6. Mention of the day on which the seizure is made, and whether it was made before or after noon. The sheriff or officer making the seizure is bound to accept a solvent depositary offered by the debtor, and in such case he is not answerable for the acts of the depositary, if he proves that when he accepted him such depositary was solvent to the amount of the property entrusted to his care. Sheriffs or bailiffs cannot take their relations or connec- tions to the degree of cousins-german, as guardians or de- positaries of the things seized. Nor can tb-^y take as such the judgment debtor nor his wife or children, on pain of be- ing liable for all costs and damages. Brothers, uncles or nephews of the judgment debtor may be appointed guardians, if they consent to be so. The debtor mtist also be called upon to sign the inventory, and his refusal or inability to do so must be stated. C. &. L. G. c. 92, s. 10 ; Ord. 1667, tit. 33, arts. 1,8; Fothier, 159- 160-161 ; Ord. 1667, tit. 19, art. 13. 35 Vict. c. 6 (Que.) : 15. Article 560 is amended by substituting the following fcr *^^He last sentence of the last paragraph thereof : " The debtor must also, if he is present, be called upon to sign the 300 OF SEIZURE OP MOVEABLES, ART. 560. ■ 1 inventory, and his refusal or inability to do so, or his absence must be stated." And the same article is further amended by striking out, from para- graph three of the same, all the words after the word " Nature," and by adding at the end of the said article the following paragraph : " In the cnse of the seizure of a registered vessel of fifteen tons bur- then, or over, the recital required by section 13 of Ohapter 41 of the Oonsolidated Statutes of Canada must be returned and filed together with the inventory." 1. A declaration in a procia verbal that the guardian had signed when he had only made his mark, is not a cause of nullity, and the guardian only can avail himself of it. Ferrault v. Chartrand <& (Jluxf trand, 6 R. L. 276, C. 0. 1874. 2. A defendant under execution may be appointed guardian of his own things with his consent, and in such case is liable to imprison- ment if he does not produce them on the day of sale. Cwrley v. Hut- ton d- Button, 15 L. 0. J. 140 ; Munn v. Halferty, 1 L. C. R. 170, S. C. 1850. Contra : PatoUle v. Gnilmette <{,• ChUlmette, 1 R. L. 51, S.C. 1865. 3. Where the bailiff declared in the procha-wrhal that he had elected his domicile in the parish of D., without specifying in what part of the parish, the seizure was held to be null. Beaupri v. Martel iSb Mattel, 2 L. C. J. 276, S. C. 1868. 4. A sheriff or bailiff executing a writ of ^i. fa. is bound tn give im- mediate written notice of the time and place of the sale to defendant. Scott et al. V. Alain et al. tt* Alain, 4 C. L. J. 60, 1868. 5. An error in the notice at the foot of the prucis-verbal of seizure will give rise to an opposition by the defendant, but does not necessar- ily involve the nullity of the seizure. Manseau <& Bernard & Bern- ard, 2 R. L. 242, S. C. 1870. But see Beaupre v. Martel he. cit. 6. On an opposition d fin d'annuler to an execution — Held, that the presence or co-operation of a recors is not necessary to render an execu- tion valid. Ouilfoyl v. Tate et al. cfc Tate et al. , 1 L. C. J. 188, S. C. 1857; La Banque du Pe^iple v. Daouat <& Daouat, 15 L. C. R. 464, S. C. 1864. 7. The fact of a voluntary guardian being a minor does not invali- date the seizure when the defendant remains in possession of the effects. C6te v. Jacob d- Jacob, 3 Q. L. R. 5 C. C. 1876. 8. The omission to mention in a proces- verbal of seizure that the person seized had refused to sign, or that he was absent from his domi- cile at the time of the seizure, is not a cause of nullity. Duquette v. Ouimet in:;V.«) HoUand, 17 L. 0. J. 168, S. C. 1873. 2. The defendant ia not liable for the guardian 'a feea. Doo^ r. Kyeraon, 1 Q. L. R. 219, S. 0. 1876 ; Domtereau v. Girard, 16 L. 0. F. 380, C. C. 1866. 3. A voluntary judicial guardian who haa become a necessary guar- dian by force of circumstances, and has been obliged to remove the goods seized under his immediate care, has a right to an opposition ajin de eonaerver for the payment of his costs un the proceeds of his sale, and to be paid according to proof made of such costs. Boucher et vlr V. Braxiit et al ir GrcHier, 4 R. L. 237, S. C. 1872. 4. The costs to be paid under a judgment ordering the payment by plaintiff of the costs of a former action, aa a condition precedent to proceeding ^rith a new suit, are the taxed costs, and a guardian's fees not being by law' claimable from defendant, cannot be included in such ccflts. Dooly V. Byaraon, 1 Q.L. R. 219, C. C. 1875. 6. Neither the attorney nor the bailiff is personally liable to the guardian who has been appointed and has voluntarily accepted the charge, for the costs of his guardianship. Plantev. Cazeau d: Cozeau £ Langoia et ah, 1 Q. L. R.203, S. C. 1875. 6. The bailiff was held liable in Courch&ne v. Oenerexix, 1 R. L. 433, C. C.1865. , ,. r,-,,^,,^ .-.., ..,- . v-rfJK § 4. Of the 'payment atid distHbutwn of the moneys levied. 601. The moneys seized or levied, after deducting the duties thereon and taxed costs, may be paid by the sheriff to the seizing creditor, if no opposition for payment has been placed in his hands ; otherwise, he must return them into court, to await such judgment as to right shall apper- tain. Ibid., 170 ; a 8. L. C. c. 83, a. 146, § 2. 1. Where the lessor had got judgment by aaiaie gagerie and execu- tion issued, but before the day of sale the money was paid i*nd deposited in court, and another creditor by opposition claimed a divi- dend on the money paid in on the ground that there was no privilege on money paid in that manner, but only on the proceeds of the sale — Held, that the opposition must be dismissed on the ground that the money paid represented the goods which had been seized, and which were the lessor's pledge for his rent. Wilson v. Spencer & Smith, 3 R. L. 466, S. 0. 1828. . ; . ^ . - 318 DISTRIBUTION OF MONEYS LEVIED, ARTS. 602-606. 609. When tho moneys levied have been returned into court, the plaintiff has a right to be paid in preference to all other chirographic creditors; saving the right of a prior seizing party for his costs, the case of the insolvency of the debtor, and the case of privileged claims. Pothier, Proc. 174. 603. When the moneys are returaed into court, as well as in all other cases where moneys of which an account has been rendered into court or moneys other than the proceeds of immoveables are to be distributed, and insolvency of the debtor is alleged, the distribution of the moneys cannot take place until his creditors generally have been called in. The creditors are called in upon the order of the court or a judge, published twice in the French and English langu- ages in the Canada Gazette * requiring them to file their claims within fifteen days from the date of the first inser- tion. 23 V. c. 57. 8. 52 ; C. S. L. 0. c. 83, «. 147, §§ 3-4. 004. The claims may be made out in a summary manner, and it is sufficient for them to state the names, occupation and residence of the claimant, and the nature and amount of his claim. _ , They must be accompanied with vouchers, if there are any, or, if not, with an affidavit that the sum claimed is lawfully due. Ibid. 60S. The moneys are distributed according to the order prescribed in the title Cf Privileges arid Hypothecs, and the title Of Merchant Shipping in the Civil Code, and in the provisions hereinafter contained. 1. A particular pledge given by a debtor to his creditor as security for the debt does not deprive the latter of his privilege on the other moveables of the debtor, if he have any. Terroux v. Oareau et al., 10 L. O. J. 203, C. C. 1866. • Now " The Quebec Official Gazette," 31 V. c. 13, s. 4. {Que.) 64 iocati I. ( 2. court 3. : paid ii 4. 1 6. 1 6. C effect of dat< tors; The I those oj Neve judgmei debtor, j 7. Co by the c [The un^sonte 33 Vic. 2. Pa striking 01 1. The I or a bond I V. Panet 607. upon the which, u| followini Custor Excisei Duties Tolls; DISTRIBUTION OF MONEYS LEVIED, ARTS. 606-607. 31 & The following ordur is observed as regards the cul- locatioD of judicial costs: 1. Costs of seizure and of sale ; 2. The duty payable upon moneys levied or paid into court ; 3. The fees of the officer receiving moneys levied or paid in ; 4. The fees upon the report of distribution ; 5. The fees of the attorney prosecuting the distribution; 6. Costs, subsequent to judgment, incurred in order to effect the seizure and sale, and according to the priority of date or of privilege when there are several seizing credi- tors; The costs of a prior seizing party have a preference over those of a subsequent one. Nevertheless, if two or more writs of execution issue upon judgments rendered on the same day against the same debtor, the costs thereon are paid concurrently. 7. Costs of affixing seals, or of inventories, when ordered by the court. [The plaintiff is next paid his costs of suit, taaed as in an wncontested case not inscribed for proof.] 33 Vic. 0.17, Q.: 2. Paragraph eight of article 606, of the said code, ia amended by striking out all the words thereof after the words, "costs of suit." 1. The sheriff is entitled to poundage whether he receives the money or a bond is given in the manner provided by the Pourt. Blake et cd. V. Panet et al 12 L. C. R. 189, S. C. 1862. 607. The Crown has a preference over all other creditors upon the proceeds of executions against moveable property which, under particular statutes, is subject to any of the following duties : Customs dues ; Excise duties ; ^ ., ,. .,,,., i- xi^ Duties imposed upon timber cut ; ". , _ ,, . Tolls; .„, " .,.^;.,: r^r',., „' l, ^ ■I I. ^ 310 DlfTTRIBUTION OF MONEYS LEYTED, ARTS. 607-611. Ituipection dues, on vessels, railways, or others similar. a a. C, 0. 17, aa. 10. 11, 14, 41, g§ 3,80, 84; G. 19, m. 8. 10, 23, 24, § 2 c. 23, aa. 1, 3, 4, 8 ; C. N. 2098. 60§. The owner of a tiling, who has lent, leased or pledged it, and who has not prevented its sale, has a right to be paid the proceeds of its sale, after the claims mentioned in articles 1995 and 1996 in the Givil Code, and the privileged rights of the crown mentioned in the preceding article, and the claim of the lessor have been collocated. Pothier,Proc. 173. 609. The same rule applies to the owner of a thing which has been stolen, who would not have lost his right to revendicate it had it not been judicially sold. 610. Persons who have preserved the right of being col- located upon the price of the thing sold, by reason of a right of pledge or of retention which they had upon such thing, rank according to the nature of the pledge or of their claim, The following is the order amongst them : Carriers; Hotel-keepers; ' ' ^ Mandataries and consignees ; Borrowers, in loan for use ; Depositaries; ' \ Pledgees; Workmen, upon things repaired by them ; Purchasers, against whom the right of redemption is ex- ercised, for the reimbursement of the price and the moneys laid out upon the property. Pothier, Proc. 343 ; Dep. 74 ; Vente, 323, 326 ; Pr^t d w«. 43, GhaHe-PaHie, 90, Proc, 192 ; Paris 181-2 ; Ferr. aur Vart. 181 ; wo. 1, 2 ; 2 Grenier, Hyp. 298 ; 18 Dur. 609 ; Tropl. Nant 100 ; G. 8. G. c. 20, a. 90, § 3, 8. 91 ; Den. Actea de Not. 108-9 ; G. N. 2102. 611. In the absence of any special privilege, the crown has a preference over chirographic creditors for sums due to it by the defendant. 5. The] quantity i Held, thai] under sac C.J. 256,1 or SEIZURE BY GARNISHMENT, ART. 612. 821 SECTION IV. OP SEIZURE BY GARNISHMENT. 619. Execution upon tho moveable effects of a debtor, which are in the possession of a third party, may, in all cases, and must, when such third party does not consent to their immediate seizure, be' effected by means of seizure by garnishment. The same means must be adopted in executing upon debts due to the debtor other than those mentioned in article 565. Pothier, Proc. 156, 174, 180, 182 ; Oen. 472 ; Pig. 646-6, 663 ; C. P. C. 567-8 ; 1 L. C. R. 114. * - 1. An attachment in the hands of a third party ia valid without the consent of such third party, his faihtre to object being sufficient. Broa- sard (b Tiion et al., 18 L. 0. J. 54, Q. B. 1874. 2. An attachment by garnishment will lie against a curator to an interdict under a judgment rendered against the interdict and the curator as such. Cribassa t. Foiirquin et al., 3 R. L. 57, S. 0. 1871. 3. But where a mother had been appointed tutrix to her minor children, and afterwards renounced the community, and she was called upon personally by means of a writ of aaisie arr6t to declare what money she had belonging to said minor children or owed in her per- sonal capacity to them — Held, that the amount of indebtedness, if any, of the tiert $aisie in her quality of tutrix to her minor children oould not be enquired into by means of an attachment by garnishment but must be settled by direct action. Dorion d Drummond ea qwl. d: Du- mont d: Dorim, 3 B. L. 60. Q. B. 1871. 4. Where the plainti£f caused a quantity of timber to be attached in the hands of a third party who was not responsible for the debt, but as a means of securing him (the plaintiff) — Held, on an appeal, that such an attachment, whereby any other person than the defendant was divested of the possession of property would not lie. Wood dk Oatea etal.,S. R. 536,K. B. 1833. 5. The sheriff under a writ of attachment by garnishment seized a quantity of railroad iron corporeally in the hands of a third party — Held, that such a proceeding was entirely illegal, and the seizure under such circumstances was a nullity. Fleck v. Stamea etvU.,7'L. C.J. 266,8. C. 1863. 3^2 OF SEIZURE BT QARNISHMENT, ARTS. 618-614. m- i 613. Seizure by garnishment is made by means of a writ issuing from the court which rendered the judgment, order- ing the garnishees not to dispossess themselves of the move- able effects belonging to the debtor which are in their possession, nor of such moneys or other things as they owe him or will have to pay him, until the court has pronounced upon the matter ; and to appear on a day fixed, to declare under oath what effects they have belonging to the debtor, and what sums of money or other things they owe him or will have to pay him. Poth/Ur, Broc. 176, 1. A justice of the peace has no authority to iuue a writ of attach- ment after judgment. The Corporation of the Parish of 8t. PhU'ippe Exp. 6 L, C. R. 484. S. C. 1856. 2. On an exception to the form of an attachment after judgment — Held, that such attachment could not be issued to take elSect in Upper Canada. McKenzie et al. v. Douglaa d: Brown et al.,6 L. 0. J. 329, S. 0. 1861. 3. Wages not due at the time of the service of the vrit could net be attached. Malo y. AcOumar dk La Banque du Peuple, 1 L. 0. J. 270, O. 0. 1861. atemberg et al. t. Dreuer db Evam, 4 L. C. J. 120, S. C. 1869. WurteU et al. v. Douglaa & The Mayor, «6e., 14 L. C. J. 17, S. 0. 1869. 4. On appeal from a judgment on a writ of attachment — Held, that an attachment under the Ordonnance of 1787 could be set aside, if it be not, in the language of the law, against the estate, debts and effects of the defendant to be attached in the hands of some person in parti- cular, and do not contain a summons to him as well as to the defen- dant to appear, and if i^ be not accompanied by an injunction from the judge to the sheriff to retain the effects seized to abide the judgment of the court, and if it appear in the declaration that the debt sworu to have been cancelled. Bichardton d Molson et al., B. R. 376, K. 6. 1829. 6. The clerk of the court is responsible for damages caused by the iraue of an illegal writ of attachment. MeLetvtutn v. Hubert et al, 4 B. L. 140, S. C. 1872. 614. This writ also summons the debtor to shew cause why the seizure should not be declared valid, and mentions the date [and amount of the judgment in satisfaction of OF SEIZURE BT OAPNISHMENT, ARTS. 614-615. 323 which it is issued, and is moreover clothed with the for- malities of ordinary writs of summons. Pothier, Proc. 176 ; 0. P. a 659, 663. 1. In every case of saisie arret the defend»:ic must be summoned, and if the defendant, in an action against him, and the Hera aairi be not summoned, no proceeding can be had against the tiers aaiai, not even if he neglect to appear. Prior v. DalanuMr dh Heath, 3 Rev. de Wg. 30«, K B. 1816. 2. Where the defendant had left the Province after action brought and had no domicile therein and attachment issued — Held, to be un- necessary to serve him with a copy of the writ of attachment, the writ being in such case a proceeding in the nature of an execution. Mettwyer et (U, v. MeOarvey dc Mettayer et al. , 6 L. C. B. 148, S. C. 1856. 3. Where in a case of attachment after judgment the defendant was found to be absent — Held, that service upon him was unnecessary. Jones V. Saunmr ds Leroux, 2 L. 0. J. 60, S. 0. 1857. 4. And in another case where the defendant had left the district of Montreal since the service of the original proce"" — ?''??'*, t1i*t a ser- vice of a writ of attachment after judr^niient madu on a clerk ii? the office of the clerk of the Circuit Court is valid. Kearney v. McE'ale & Pariteault, 7 L. C. J. 227, C. 0. 1862. 615. The rules concerning the service of ordincry writs of summons apply to seizures by garnishment. Nevertheless, the garnishee cannot be condemned by de- fault, unless the writ of summons or other order to appear has been served upon him personally. Upon satisfactory proof that a garnishee conceals him- self in order to avoid such personal service, service at his domicile is held to be sufficient. If the defendant upon the principal demand has been summoned as an absentee, the summons upon the garnish- menii may be served upon him at the prothonotary's office, but if he did not leave the province until after service of the principal demand, he must be summoned upon the gar- nishment acco, iing to the provisions of article 68. The defendant is boimd to answer the proceedings by 4' 324 OF SEIZURE BY GAKNISHMENT, ARTS. 615-617. r- ■:::^il garnishment within the same delays as upon a principal de- mand. 6 L. a R. 148 ; C. S. L. C. c. 83, 88. 59, 62. 1. A «rrit of attachment after judgment must be served within the same delay as an ordinary writ of summons. McLaren ei al. v. Hut- ehigon Frater, 6 L. C. oT. 45, S. C. 1861. 2. The omission to mention in a proces-verbal of seizure that the person seized had refused to sign tho procia-verbal or that he was ab* sent from his domicile at the time of the seizure is not a cause of nul- lity. Ihiquette v. Ouimette & Ouimette, 6 R. L. 167, 0. C. 1874. 3. On an attachment after judgment — Held, that service upon the defendant who was absent was unnecessary. Jones v. Scnnnur db Le- rmix, 2 L. C. J, 60, S. C. 1857. 4. Held, in a later case, where the defendant had left the Province after judgment was rendered against him, and had no domicile there- in, that the writ of attachment issued should nevertheless be served upon him. Hogan v. Gordon and The Bank of Montreal, 10 L. 0. R. 21, S. C. 1859. 616. The effect of seizure by garnishment is to place the effects and debts of which the garnishee is debtor, under judicial control, and to sequestrate in his hands all corporeal things, in the same manner as if he had been specially ap- pointed guardian. Pothier, Proc. 177. 617. The garnishee is bound to make his declaration in the office of the prothonotary of the court which issued the writ, before such prothonotary, who is autliorized to admin- ister to him the necessary oath. Nevertheless, if the garnishee resides in another district than the one in which the writ of seizure by garnishment has issued, he may, on or before the day fixed for the return of the writ, make his declaration before the judge or the prothonotary of the district where he resides, and such pro- thonotary is bound to transmit the same to the court where the suit is pending. When a .seizure by gprnishment is made in the hands of a corporation, the declaration is made by an attorney authorised in the same manner as for answering interroga- OF SEIZURE BY GARNISHMENT, ARTS. 617-619. 825 tories upon articulated facts, as provided in article 224. 8. L a c. 83, a. 136, § 3; 8. 137; C. P. C. 671. a 1. An advocate or attorney, being garnishee i< a case, cannot refnae to declare what money or effects he has in his hands belonging to the defendant, his client, on the ground that his doing so would be a betrayal of professional confidence. MeKemie etal. v. MeKenzU ds Mc- Kerme et al., 9 L. 0. J. 87, S. C. 1864. 2. An answer of a tiers saiai which would be no answer to a demimd by his creditors is no answer to the attaching creditor. Brehaut y. Loupre et al. 3 Rev. de L6g. 305, K. B. 1812. 3. The declaration of a tiers saisi must be positive " I do owe" or " I shall owe " at a time cortain, not " I may owe." Therefore, where it was sworn that the debt of a tiers saisi depended upon a contingency he was discharged. Arnold v. Uppington et aL,d Rev. da L^g. 347, K B. 1821. 618. The garnishee's declaration must be made on the day appointed by the writ, or on the next following juridi- cal day. It may be made at any time before the return day, at the prothonotary's office from which the writ issued, but in such case it cannot be received unless it is accom- panied with a bailifTs return, certifying that previous notice of at least twenty-four hours has been given to the plaintiff of the garnishee's intention to ma];^, his declaration before the return of the writ. Ibid. s. 13b § 2. 1. Where the garnishee makes his declaration before the return day mentioned in the writ, a bailiff's certificate must be produced showing that notice has been given to t ^ - plaintiff or his attorney, at least twenty-four hours previously, that he intended to make his declara- tion before the return of the writ, and a declaration made without such notice will be rejected on motion. Versailles v. Bailey j garnishee should be paid into court to be distributed, but before the allowance of the intervention judgment was rendered maintaining thfl attachment and ordering payment, judgment went against the inter- vening party in accordance with Masaon dc Clwall, 6 L, C. R. 169, S. C. 1856 ; Chapinan v. Clark d; The Unity Life Aaa., 3 L. C. J. 159, S. C. 1859. 2. The existence of a previous misie arrSt in the hands of the defen- dants as garnishees does not prevent the plaintiff (defendant in a pre- vious suit), from seizing moneys due to defendants in the hands of other garnishees. Mackay v. Routh <£■ The Bank of Montreal, 1 Legal News 161, S. C. 1878 ; Oonjarmed in Review, 1 Legal News 266, 22 L. C, J. 22 ; Cadieux v. Cana. Mutual Fire Ins. Co. , 1 Legal News, 340. ' / .Si. I If- 828 OF SEIZURE BT GARNISHMENT, ARTS. 623-624. 098. If the moneys or other things due by the gamii^ee are only payable at a future time, he may be condemned to pay them when such time arri?es,and if they are due under conditions which are not yet fulfilled, the court may, upon motion of the seizing party, maintain the seizure until such conditions are fulfilled. 1. The delay atipulated in favoiir of tier$ sains that taey should not be held to pay what they owed vmtil after six months' notice had been given, coold not affect the rights of the creditors who were entitled under their judgment to attach all the debts and property of their debtor, however held or in whatever manner due. Frost et cU. ds Com* eron . Gregory & MiXU, 2 L. G. L. J. 132, S. 0. 1866. •J5I8. Besides the things enumerated in articles 557 and 568, the following are also exempt from seizure : Pay and pensions of persons belonging to the Army or to the Navy; Salaries of public officers ; OF SEIZURE BT OABNISHMENT, ART. 628. 331 Contingent emoluments and fees due to ecclesiastics and ministers of worship, by reason of their actual services, and the income of their clerical endowment [The salary of school teachers.] ,•.,,. Pothier, Proo. 186-7 , G. P. C. 5S0. .38 Vict. 0. 12 (Que.) : ' ' 1. In future, the Ba^aries due and to become due of all public Berrants or employees, in the Province of Quebec, shall be liable to seizure in the proportions hereinafter set forth, for any debt incurred sub- sequently to the coming into force of this Act, notwithstanding any provision to the contrary contained in ai cicles 668 and 628 of the code of civil procedure of Lower Canada. 2. The portions of such salaries liable to seizure bhall be : (1.) A Qfth of every monthly salary ,'not exceeding one thousand dol- lars per annum ; (2.) A fourth of every monthly salary, exceeding one thousand dol- lars but not exceeding two thousand dollars per annum ; (3) A third of every monthly salary, exceeding two thousand dol- lars per annum. 3. The seizure of each such portion of the said salaries shall be made and adjudicated upon in the manner usual in relation to attachments by garnishment after judgment, before any competent court ' 4. A copy of the writ of attachment shall be served upon and left with the head or deputy-head of the department or office, in which the public servant or employee, defendant, is employed and paid. The bailiff or seizing officer must endorse on such copy a declara- tion of the day of service and affix his signature at the foot of such declaration. 5. The head or deputy-head of the department or office, in which the salary attached by garnishment is paid, in lieu of making a decla- ration under oath, shall make a report to the court under his signa- ture, establishing the amount of the salary due at the time of the service of the writ of attachment and the amount of the salary to be- come due each month, if such servant or employee continues his em- ployment under the same conditions. 6. Notwithstanding what precedes, it shall be lawful for any creditor of any public servant or employee before entering an action or issuing a writ of attachment by garnishment, to produce a sworn statement of his debt or a copy of judgment, at the office or department in which such public servant or employee receives his salary. 3;i2 OF SEIZURE BT QARN' ^H v ENT, ART. 628. If luch public servant or employee aoknowledgei himself to b« in- debted in the sum demandt>i, and, in writing;, authorizes the payment thereof out of the portion of hio Hilary liable to leiBure. the head or deputy-head of such ofBce or department shall pay thu creditor ac- cording to the authorization, at each period of payment of salaries. If soveral creditors present themselves at the same time, they shall be paid concurrently, in proportion to their claims. 7. Nothing in the preceding section shall have the uffeot of prevent- ing the attachment by garnishment of the part of the salary liable to seizure under otion one of this Act ; and m the event of such at- tachment, the authorization given under the preceding section shall become null and of no effect. 1. An attachment by garnishment of moneys in the hands of the revenue inspeo(or beli nging to the defendant as an informer under the revenue laws way dismiased. Leclerc v. Caron > V \ ^ cS^ 384 OF EXECUTION UPON IMMOVEABLES, ABTa 629-632. WM bound to give a detailed atatement of the value of raoh artiolet, .and muit be condemned ai the personal debtor of the plaintiff to the extent of their value. Orant et dL v. Teasel ■■.■;"'- 647. The sheriff may, before seizing immoveables, exact from the party who places the writ in his hands the sum of four dollars, to meet the first expenses of the advertisements hereinafter required. C. 8. L. G. c. 85, «. 6. § 2. Of advertisements. 648. The sheriff is bound to advertise in the Canada* Gazette, in the French and English languages, three separ- ate times within the space of four months from the date of the first publication, the sale of immoveables seized. The advertisement must contain : 1. The number of the cause and the nature of the writ, whether ^ri/ctcifiw or any other; 2. The names and surname of the plaintiff in the suit, or if there are several plaintiffs, a designation of the first named in the writ, with an indication that there are others; 3. The names and surname of the defendant in the suit, or if there are several defendants, a designation of the one first named in the writ, with an indication that there are others ; * Now " The Quebec Official Gazette," 31 V. e. 13, «. 4 (^ue.). 340 SEIZUllE OF IMMOVEABLES, ARTS. 646-^49. my^ M m 'If If the plaintiff or defendant m acting as tutor to minors, it is sufficient to state that he is acting as tutor to the muior children of the deceased person, without designating the minors by name ; 4. A designation of the immoveables, or of th& rents, as the case may be, as inserted in the minutes, of the charges therein mentioned, and of those also which the seizing party has requested in writing to have inserted, and mentioning upon which of the defendants the property is seized ; 5. The time and place at' which the immoveables or rents will be put up for sale and adjudged ; 6. The date at which the writ of execution is returnable into court. G. 8. L. a c. 86, 88. 4-6, § 2, 10, 11 & Schedule A ; G. P. C. 690-1-2-3-6. 049. The advertisements of sheriff's sales must be printed consecutively and be preceded by a notice according to form 34 in the appendix to this code, or any other form of like effect. G. S. L. G. c. 8), 8cfied/ule A. Form No. 34. In connection with article 649. f I Advertisement of Sheriff's sale. Public notice is hereby given, that the undermentioned lands and tenements have been seized and will be sold, at the respective times and places mentioned below. All per- sons having claims on the same which the registrar is not bound to include in his certificate under article 700 are hereby required to make them known according to law. All oppositions to withdraw, to annul, to secure charges, or other oppositions to the sale, except in cases of venditioni exiponas, are required to be filed with the undersigned, at OF ADVKRTI8EMBNT8, ART. 640. 341 his office, previously to the fifteen days next preceding the day of sale. Oppositions for payment may be filed at any time within six days next after the return of the writ. No. Fien Fadaa. A. B., of the city of , in the county of , in the district of , against C. D., of , in the county of , in the district of (as the case may he)^ (itiaeri the deacHption of the land or other immoveable pro- perty, tJte pariah, seigniory or tofvnship, and the county and district in which the same is sitvMte,) in the county, &;c., bounded, &c. To be sold, at , on the day of , at o'clock in the (forenoon) ; the said writ returnable on the day of next. No. Venditioni Exponas. No. Alias fieri facias. A. B., Sheriff. mentioned sold, at Allper- rar is not 700 are to lav- barges, or sifi 41 Vict., c. 15(^(«.>; An Act to provide for the giving notice of Sheriff's sales to 1 ^ v'he- cary creditors. (Assented to 9th March, 1878.) Wherk^ it would tend to increase the security afforded by hypo- thecs that notice of advertised Sheriff 's sales should be given to hypo< thecary creditors ; Therefore Her Majesty, by and with the advice and consent of the Legislature of Quebec, enacts as follows : 1. Every registrar shall keep a register for the addresses of hypothe- cary creditors. 2. Any hypothecary creditor or any transferee, heir, donee or lega- tee of a hypothecary creditor, may give notice to the registrar of the registration division wherein the immoveables hypothecated are situate, of his address, and if he afterward changes his residence of his new address. The registrar shall enter such address in the register of addresses, and shall note the number of the entry of the same in the index to immoveables in the page or space allotted for the lot or sub-division hypothecated in favour of the person giving the notice. l" i If 842 8EIZURE OF IMMOVEABLES, ARTS. 649-(i5(). 3. Within one month after having advertised the aale of immovea. blea, the aheriff shall apply to the regiatrar of the regiatration divition wherein auoh immoveablea are lituatn, for a Hat of the addreaaet which may have been notified to him ; and the regiatrar ihall forthwith trananiit such liat to the Sheriff. 4. The iheriff shall send a printed copy of the advertisement pre- scribed by article 648 of the Code of Civil Procedure, to each hypothe- cary creditor, whose address is given in the list furnished by the regis- trar, through the post, at least one month before the day fixed for the sale. 6. The omission to obtain such list of addresses or to send a copy of the advertisement to all or any of the persons whose addresses are given in a list, shall not invalidate or affect a sheriff's sale. 6. The sheriff and the registrar shall be entitled to such fees, for the performance of the duties imposed by the preceding sections, or may "he established by order of the Lieutenant-Governor in Council. 7. The person giving notice of his address shall pay the registrar's fees, and shall also deposit in his hands, an amount equal to the fees allowed to the sheriff for the notice to be sent to such person ; such amount shall be paid to the sheriff by the registrar when he transmits the list of addresses. On the cancellation of an hypothecary claim, the deposit shall be refunded ; and the address of the creditor shall be struck off the regis- ter of addresses. 1. The sheriff is alone liable to the printer for the price of the adver- tisements, as there is no contract between the printer and the seizing creditor. Stevenson etal. v. Boston etal.,2 L. C. R. 17, S. 0. 1851. 650. The sheriff must also, if the seizure is made in a parish, cause the advertisement prescribed by the two pre- ceding articles to be published and posted, on the third Sunday before the day fixed for the sale, at the door of the church of the parish in which the property seized is situ- ated, immediately after morning service. C. 8. L. C. c. 85, 88. 4, 10; 27-28 Vict, c. 39, 8. 1. 1. In an action to set aside a sale made by the sheriff on the ground that the formalities required by law precedent to the sale of immove- ables had not been observed, that the announcement had not been made at the church doors, but that the sale having been first stayed by an opposition d Jin de charge which was maintained, the property rM: OF OPPOSITIONS, ARTS. 650-651. S48 wM anbiequently Mid bj the aheriff with the urdinary formalitiM, ■ 658. Oppositions to withdraw may be filed by third parties who clai ^i as their property part of any immoveable or rent under seizure. Pothier, Proc. 208, 1. On the contestation of an opposition d^ti de distraire — Held, that such an opposition may be filed to a writ of venditioni exponas de bonis. Delisle v. Couvrette '. the saiaie good and valid. Poirier v. Plouffe a writ of venditioni exponat in certain special cases. Foun»ier d: Riu- sell, 1 L. C. J. 118 & 7 L. C. R. 130, Q. B. 1867. 6. An opposition d Jin d'anmiler may be filed to a writ of venditioni exponas when such opposition is founded upon the alleged nullity of the writ itself ur the irregularity of the proceedings thereon, and in such case the opposant does not require the order of a judge before his opposition can be received. Atkin» et cU. d The Quebec Building Society, 10 L. C. R. 333, Q. B. 1860. # , , ,1 § 5. 0/ bidding and sale. 665. Bids may be given in writing at the sheriff's office at any time after the seizure, except during the eight days previous to the day fixed in the sheriff's advertisement for the sale of the immoveable or rent, either upon the writ of Jien facias when the sale has not been stopped, or upon the venditioni exponas, if the sale was prevented from taking place according to notice under the fieri facias. 27 &28 F.,c. 39, 8. 4. 666. Such bids, if made by a creditor of the judgment debtor, must be accompanied with an affidavit, sworn to be- fore a judge, the prothonotary, a commissioner of the Supe- rior Court, or before the sheriflF, who is authorized to admin- ister such oath, stating the nature and amount of his claim, and declaring that they are made in good faith, and not to delay the proceedings. Ibid., a. 2. . j ^ 667. Such bids by a person who is not a creditor, must be accompanied with an affidavit, sworn to in the manner stated in the preceding article, stating that they are made in good faith, and not for the purpose of delaying the pro- ceedings ; and the sheriff may, if he thinks fit, require secu- rity from such bidder, or a deposit of a sufficient sum to cover the costs incurred by the seizing party up to the time of such bid, and the costs of a resale upon false bidding, in case it should be necessary. Ibid., 8. 3. 3^ . 1 "^ 352 SEIZURE OF IMMOVEABLES, ARTS. 667-671. 1. A promise by one bidder at a judicial sale to another, to pay him a sum of money if he refrains from bidding, is an illegal obligation. PerrauU v. Couture, 16 L. O. J. 251, S. C. 1872. 068. Every such bid must be in writing, and must in- dicate : 1. The name of the case in which it is made, and the names, quality and residence of the bidder ; 2. The immoveable or rent bid upon ; 3. The amount offered. It must be signed by the bidder, or be in the form of a notarial original. /&id,§§4,6. 1. At a sale under execution the sheriff cannot oblige a bidder to renew the declaration of his domicile, etc. , at each bid. Morrisor t. Cyr & Perron, 14 L. C. J. 265, S. 0. R. 1870. 2. Nor has the sheriff a right to allow a contestation of such declar- ation made by a bidder. lb. 669. The sheriff is bound to endorse on each such bid the date of its filing, and to return it into court with all his other proceedings. Ibid, § 6. 670. The sheriff is bound to furnish the officer by whom the sale is to be made, with a list of such bids as have been filed under the provisions of the above articles. Ibid, § 12. 671. Immoveables under seizure, that are held in free and common soccage, or otherwise than en roture or en franc allevt, roturier, and those which are situated in the District of Gaspd, under whatever tenure they are held, can only be offered for final bidding and adjudication at the re- gistry office for the registration division in which they are situate. Those which are situated in the city, town, or chief -place where the sheriffs office is kept, or within the suburban limits (banlieue) thereof, must be bid upon and sold at the sheriff's office. BIDDING AND SALE, ARTS. 671-676. 368 bidder to orrisor' v. such bid with all jy whom lave been iid, § 12. d in free ire or en id in the held, can it the re- they are All other immoveables must be bid upon and sold at the door of the parish church of the locality where they are situated. G. S. L. C. c. 85, ». 4 ; 27-28 F. c. 39, a. 3. 1. A aale of an immoTeable by the iheriff^ in a diatriot other than that in which the property lies is null. Phiilipa d Sanborn, 6 L. 0. J. 252, 12 L. 0. R. 408, Q. B. 1862. See Faute^ue '% ■ %77. Verbal bids may be made by proxy. Pothier, Proc. 223. 678. The officer conducting the sale must require from every bidder, before he receives his bid, a deposit of a sum of money equal to the costs then due to the seizing party upon the judgment and seizure, in the following cases : 1. In all cases wherein the sale has been stopped by an opposition ; 2. In cases of resale upon false bidding, if the court has imposed that condition at the instance of some party to the suit, a 8. L. G. c. 86, 88. 18, 22. 679. The court may also order such deposit or payment in any case where the party seizing, or his attorney, declares upon oath that he is credibly informed, and believes that the defendant, with a view to retard the sale, will cause the immoveable to be adjudged to some insolvent or unknown person. Ibid 88. 18, 20. 6§0. In any case wherein two resales upon false bidding have taken place, the court may, upon application of any interested party, order that every bidder shall be required to deposit or pay a sum equal to one-third of the debt due to the seizing party, in principal, interest and costs, but not in any case exceeding four hundred dollars. Ihid. 8. 20. 681. In the cases mentioned in the three preceding arti- cles, the officer conducting the sale may, with the consent of the plaintiff, or of any person authorized by him, receive the bid of any bidder without requiring the prescribed deposit ; and such consent must be in writing or given in presence of two competent fwitnesses whose natnes such officer must enter in his return. Ibid. 88. 21-23. 689. If|the bidder liAis to deposit forthwith the amount required, his bid is disregarded, and the proceedings are re- sumed upon the previous bid. Ibid. 8. 19. M4 BIDDING AND SALE, ARTS. 682-686. 865 ', Proc. •e from a sum g party es: d by an iourt has ty to the payment r, declares Leves that [ cause the . unknown Ise bidding lion of any required debt due lats, but not \d. 8. 20. [ceding arti- je consent of I, receive the ed deposit ; presence of [officer must the amount Idings are re- 1. On an opporition ^fin de diatraire filed on the ground that the only bidden present at the sale were the orier and the plaintiff— HirU, that the defendant had no right to complain of there being no bidden as he could have produced them. Olivier v. BtUrngtr, 3 R. L. 467, S. 0. 1828. 683. The sheriff, or other officer conducting the sale, is bound, immediately after the adjudication, to refund to every bidder except the purchaser, the amount deposited by each, and the deposit made by the purchaser is retained as part of the purchase money. Ibid. s. 24. 1. Inscription en faux was filed by the plaintiff against a return of the sheriff to a writ of execution directed against property in the district of Beauhamois, on the ground that one Cameron, who testified to that effect, had bid immediately after the defendant, but his bid was refused and the property was adjudged to the defendant — Held, confirming the judgment of the court below, that the sale was null and that there should have been some formal intimation of the close of the sale. Woodman et al. d Qmier, 10 L. 0. J. 87, S. C. 3 L. 0. L. J. 120, Q. B. 1867. 2. At a sale under execution by the sheriff there can be no sale and adjudication unless the bid have been accepted by the knocking down of the hammer, and therefore where a sale has been suspended, though without sufficient cause, the highest bidder cannot claim as adjudica- taire. Baker v. Young et al. d: Backwood et al., P. B. 26, & 3 Rev. de L^g. 393, K. B. 1810, ... 684. [The adjudication of an immoveable cannot be made before the expiration of a quarter of an hour from the time at which it was put up for sale, and after that delay, the officer before adjudging it must receive all other bids offered.] mric. Vte. dea Imm. 187 ; C. P. C. 706. 689. The property must be adjudged to the highest and last bidder. Pothier, Proc. 220. • 686. A person who has purchased as proxy for another^ is bound to furnish the sheriff, within three days, with the names, quality and residence of his principal, and his power of attorney, or a ratification of his bid and purchase ; in 366 SEIZURE OF IMMOVEABLES, ARTS. 680-689. ■■Ji I. " H mi I - default whereof he is held to have purchased in his own name. He is likewise held to have purchased in his own name, if the person for whom he acted is not known, cannot be found, is notoriously insolvent, or is incapable of being pur- chaser. Pothier, Proo. 223 ; HSric. 188. 687. The purchaser is bound to pay the purchase money, or the balance thereof, within three days, after which delay he is bound to pay interest C. 8. L, C. c. 85, «. 18 ; Pothier, Proc. 226. 688. Nevertheless, the plaintiff or any other credicor whose claim is mentioned in the certificate of hypothecs hereinafter mentioned, or who has filed an opposition in the hands of the sheriff, may, on becoming purchaser, retain the purchase money to the extent of his claim, until the judg- ment of distribution, provided he furnishes the sheriff with good and sufficient sureties for all damages that might re- sult to any party interested, in the event of the non-pay- ment of such sum as the court may order such purchaser to pay into the hands of the sheriff. C.8. L. C, c. 85, 88. 12, 13. 689. Upon payment by the purchaser of the price of the adjudication, or, if he is a creditor, of so much thereof as he is not entitled to retain, the sheriff is bound to give such purchaser a deed of the sale made to him. r Such deed must contain : 1. A 4esignation of the writ under which the sale took place ; 2. The number of the cause, and the names, surnames., ad- ditions and residence of the parties ; 8. A description of the immoveable seized ; 4. A statement that all the formalities prescribed by law have been observed ; 5. The time and place at which the property was ad- judged ; ■ r or rOLLE ENCHBRK, ARTS. 680-690. 857 6. The conditions of the sale, including those mentioned in articles 707 and 708 ; 7. A statement of the price at which the property was ai^udged and how it was paid ; 8. A conveyance of all the rights of the judgment debtor upon the immoveable. § 6. Of resale for false ImUiing. 600. Upon the sheriff's return that a purchaser has not paid the whole or a balance of his purchase money, nor given security when he may lawfully do so, the plaintiff may demand that the immoveable of which the purchase money thus remains due be resold for false bidding upon the purchaser thus in default. This is done by a petition served upon the latter with the delays required for ordinary summonses ; and if the purchaser does not reside or has no domicile in the district where the adjudication took place, the service may be effected at the office of the prothonotary of the court from which the seizure issued. Ihid., 88. 18, 26. 1. A falae bidder is not relieved from his liabilities by a subsequent false bid higher than his, and sufficient to cover the first bid with interest and the costs incurred by the sale. Blaia v. Leamwnth tt al. T. Gowen, 4 Q. L. R. 251, S. C. R. 1878. 2. No motion for an order to sell real property BAfolle enchh-e can be granted, unless notice of the motion has been given to the adjudica- taire. Baker d- Young et al. d: divera, P. R. 22, K. B. 1810. 3. It is not necessary that the service of a rule tor folk eiuMre be made personally upon the adjudicataire, nor that the motion be served upon jiim. Lafond v. Ouibord «k Male ' « haring failud to pay the prioe, on* B. produced an oppoeition d Jin de anaermr, and movtMl fur ikfolU tn- ehtrt, B.'s okim did not appear in the regiatrar'i oertifioate, and he had given notice of hia motion before tiling hia oppoaition — Held, that aa hia claim waa not in the record at the time he gave notice, it mnat U rejectei one of such proceedings, and that of the adzing party, or, in his default, the one first served, has the preference over the others, provided the creditor follows it up with proper diligence. 10 L. C. R. 457. 699. The proceedings upon an application for resale for false bidding are summary, and no written contestations can be had thereon without leave of court. 693. In all cases the false bidder is liable for all dama- ges and interest accruing to the judgment creditors or to the defendant, from his failure or delay to pay the purch&se money, and he is moreover bound to pay the difference be- tween the amount of his bid and the price brought by the actual sale, if such price be less, without any right, if the price be greater, to the excess, which goes to the benefit of the judgment debtor and his creditors. C. 8. L. G. c. 85, sa. 18, 25 ; Pothier, Proc. 226-6. 694. The purchaser may prevent the resale for false bidding by paying into the hands of the sheriff, before such sale, the amount of the purchase money, with the interest accrued thereon since the purchase, and all costs incurred by reason ot hi> default. Pothier, Proc. 226. 1. Where 4a, mle was taken against a purchaser, and it was proved that he h^ taid into the hands of the sheriff, by authority of the court, the vuil amount of 'lie purohMW money, leaving nothing but a 360 SEIZURE OF IMMOVEABLES, ARTS. 694-697. cl«iin for interest on the part of the plaintiff, the rule was discharged. Hall V. DowjUu : ■■^,'-' ^ . ' Form No. 36. In connection with articles 700, 935, 955. Certificate of the Regiatrar. Lower Canada, \ County (or Registration Division) of j Privileges and Hypothecs registered in my office, which do not appear by the books therein to have been wholly discharged, and of which J am, under the provisions of the Code of Civil Procedure of Lower Canada, required to grant a cei'tificate, at the instance of A. B. of (Esquire, or as the case may he) the applicant named in the annexed Notice of application for the confirmation of Title —or of C. D., &c., Sherifi" of the District of having the execution of the annexed Notice of Sheriff's Sale, — or of E. F., &c., the party prosecuting the Licitation mentioned in the annexed Notice, — or of G. H. applying for such cer- tificate : — First. Against the property to which the judgment of con- firmation — or the said Notice of Sheriff"s sale — or the said Notice of Licitation is to apply, — or described in the application of the said G. H. ; the following, viz : — a hypothec (or as the case may be) created by a (descrip- tion of instrument) between and (names and qualities of parties) bearing date the day of 18 , and registered on the day of 18 , passed (if the instrument he Notarial) before Notary Public and his ,.X' mm 864 SEIZURE OF IMMOVEABLES, ART. 700. Colleague, at , as to which no discharge h registered (or as the case may he, mentioning any par- tiaZ discharge registered), and the sum which appears to be due for principal and interest secured by which hypothec appears to be $ , and the regis- tration of which hypothec has not been renewed (or was renewed on the day of 18 , as the case may he.) And so on in the same form for any other privileges or hypothecs registered against such property. Secondly. Against parties who, within ten years next pre- ceding the date of the registration of the title sought to be confirmed as aforesaid, — or next preceding the .; date of the Notice of Sheriff's sale, — or next preceding ,;, the date of the Notice of sale by Licitation (as the case ., mMy he), — or next preceding the date of the application ,; of the said G. H. — have been owners of the said pro- perty, the following, viz. : — * A h3rpothec created, &c., (as under next preceding head.) Thirdly. (In case of demand of certificate under article 2177 of the Civil Code.) Against G. H., of , &c., ! , the immediate author of the party who owned the said property at the commencement of the said ten years, the following, viz, : — '- A hypothec created, &;c., (as under preceding heads) If there is no privilege or hypothec required to he cer- tified under any one or more of the foregoing heads, , ^ the Registrar will, instead of the words, " the foUow- ^' ' ing, viz," insert the word " None." Until plans and hooks of reference, under articles 21G8 and 2169 o/ the Civil Code, are in force in the Coimty ■^ * ■' or Registration Division, the Registrar may omit the ■-.1 first head. RETURN OF WRIT, ARTS. 700-701. 865 large is ny 'par- appears (y which he regis- jwed {or 18 , form for I against next pre- ttle sought ceding the t, preceding (as the case application le saidpro- ling head) article 2177 ,&c., party who nient of the If the Registrar vhm not able to ascertain, from the hooks and documents in his oj^Uce, who were the ■•', It-'' ■ ifV: 870 SEIZURE OF IMMOVEABLES, ARTS. 711-712. 711. A sheriff's sale discharges property from all other real rights not mentioned in the conditions of sale. Pothier, Proc. 227; H4ric. Vte. dea [mm. 46-47, 59 (taeq.; 1 Pig. 779 ; a 8. L. a c. 85, 8. 4, § 3. 1. Immoveables sold under execution are freed from all inoum- brancea with which they are charged except inch aa are dearly exprei- ■ed in the sheriff*! advertisements ; and where the property sold had b«en twice leased for a term of years by emphyteutic lease, and the first lease only was adverted to in the notices of sale, the property sold was held to be released from the charges to which it was subject by virtue of the second lease. Titu v. fhinic, 14 L. 0. .1. 147, S. C. 1858. 2. And where three lots of land -longing to a suoceciion were sold under execution, in the possession of third party, "■, ho refused to deliver, and the purchaser brought actio J to revendicate them— If eM, in appeal, reversing the decision of the court below, that the judicial sale effected a real tradition of the property, and that, uii'Ie. the cir- cumstances, therefore, the defendant could oppose no legal title to the action. Lmranger v. Bo^idreau et wa;. 9 }j 0. R. 386, Q. B. 1859. 3. And in a similar case — Held, that tae aait under execution of an immoveable extinguishes all right of property, except when the pro- prietor is in possession at the time of the adjudication pro iwn d(nnino. Patton «fc Morin, 16 L. C. R. 267, Q. B. 4. And held, also, that to preserve his rights the proprietor, if Act in possession at the time of such sale, must oppose it in the ordinary manner, or otherwise he is, by the effect of the sale, purged of all his rights thereto. lb. Tl!SI. A purchaser who cannot obtain the delivery of the property from the judgment debtor, must demand it of the sheritF, and upon the sheriffs return or certificate of the re- fusal to deliver, the purchaser may apply to the court by petition, of which the debtor has received notice, and obtain an order commanding the sheriflf to dispossess the debtor, and to put the purchaser in possession, without prejudice to the recourse of the latter against the debtor for all damages and costs resulting from his refusal. C. S. L. C. c. 85, s. 27. 1. To obtain an order for a writ of possession for an adjudicataire .h.«ni„.4b..„,„„b I,. 2. The pnrohflwr cannot obuin a »«* # P-d th« price, and he mu.t «ive noZlf I ^"''"" '^'»«' »>• ^m 3- A purchaser may obtain a writ nf * • ye»r and a day fro„, the da"e o7 1 ^'^!!^'"°" »'*«' »he expinr of or the .ame within the ye«t d d ^rltr!!' '^^'^ »»« ^<^i See art. 649, nipra. ' ^' ^ ^' ^46, S. C. R. isyg. § 9- 0/ the vacating of .herif, ^,. . ' i- At t/ie instance nf fK-^ • j -toor or other ineeresTedpe^:^™' debtor, or of .„y If he 13 hable to eviction by reason „f dower, substitution, or other riitf . *""' customary " not discharged b; sherirl »t '""" "''■"> «■« P-Pe«y ^-t; inrtni/JSrser ir '"^ "--p"-- 3"»ed that the ,>u.haser w'uW nTh " V' '" >• P- \i 872 bUZUBE OF IMMOVKAULEH, AHTH. 714-716. imi i:. I tad, oonM<{uently, the tnniferee of » creditor, previoua to thv lale, could not deiuand the nullity of the adjudication udIom notice of the transfer had been duly lignified to thu debtor. Berard v, BarreUt tt vx. d' Lambert d- Salvos, 6 K. L. 703, 8. C. Ih74. 2. Ko luch notice o' the transfer need be ■orvod upon the other purohaaer*. Ibid. 3. A demand in nullity of the adjudication ntuat be presented within • year subsequent theret«>. ibid. 4. The petition in nuUity must show that the claim of the petitioner would probably have been [Aid, if the property had been sold at a higher price ; that the property was worth more than the price for which it was sold ; that the manner in which it was sold was in law fraudulent ; and that the creditors, and especially the petitioner him- self, will necessarily thereby suffer serious loss and injury unless the adjudication is annulled. Ibid. 6. An agreement by a purchaser to pay a creditor the amount of his claim on condition that he refrains from bidding, is not a fraud such as will annul the adjudication. Berard v. Burette d- ux. 5 R. L. 703, B. C. 1874. 6. A sale by the sheriff of Montreal, at his own office, of land situate in the parish of Venfaut Jems, a duly erected parish for all civil pur- poses formed out of the parish of Montreal, is null and void, as such ■ale could be legally effected at the church door of the P. of L'enjant Jeaut only. Such nullity can be invoked by a hypothecary creditor by peti- tion (without a writ of summons) duly served on all the parties inter- ested. It can also be invoked by means of an opposition filed after the sale and served on all parties interested , and containing all the allegatiuns essential to a petition eu nulliU de dicrit, Fatiteux v. The Montreal Loan di M. Co., 22 L.C. J. 282, Q. B. 1878. See Phillipst db Sanbvm, 6 L. 0. J. 262, 12 L. C. K. 408, Supra under art. 671. 71(1. The application must be made in the suit by a s{)e- cial petition, it mut^t be served upon the seizing party and upon all other interested parties in the suit, and in other respects is subject to the rules of ordinary procedure. The party who prosecuted the seizure and sale has a pre- ferable right to contest any suit brought to vacate such sale ; and if he fails to do so within the prescribed delays any ri6 vacate AS are j rior Coi Poth^ Montrei 4 Henri 1. Whe viotisly, w the defend tAe second opposition the first, e; Bounced, a strong ct I 1870. ^ nr. be set up made for ns TH which are cution issu Jevied, of f«ntl of aJI in the prot h Where t| contested the OF OPPOSITIONS FOR PAYMENT. ARTS, 715-718. 878 M, he (( her Ihiu oner at a e for nlaw ■ him- w the of his luchaa L. "03, situate vil v>"* as such ,'eii/an( ^y peti- 3B inter- Ithe Bale legations fontreal Sa»ibon», a spe- Jrty and |n other a pre- Ich sale ; ays any other party may take up the contestation ; hnt the pur- chaser cannot, in any case, be condoinnol to pay the costs of more than one contestation. 1. The iheriff miiat be made a party to an action to set aside a m1« tinder execution made by hiui. f>ra/)f(ii( v. Friwr, I L. 0. L. J. 96, S. C. 1865. T16. Applications on behalf of the judgment debtor to vacate sheriff's sales must l>c made within the same delays as are proscribed for appealing from judj^inunts of the Supe- rior Court. Pothier, Proc. 125, 265; Bowman v. Daivson S Ddivson, Montmd, 2Gth Sept., 1845 , Le Prestre 2 Cent p. 149, Xo. 9; 4 Henrys, p. C3. ■.' ■ 1. Where a property, which had been judicially sold some time pre- viously, was about lo bo sold again in the hands uf the purchaser, and the defendant in the first case by opposition li Jin de diatraire opposed the second sale on the ground of nullities in the first — Held, that an opposition would not lie to the second sale on account of nullities in the first, except where the nullity of the first has been regularly pro- nounced, and then only within the year from such first sale. Arm- strong tt Barrelte it Crebasm tt Armstrong, 2 R. L, 98, S. C R. 1870. 717. Grounds of nullity of a sheriff's sale may likewise be set up by the purchaser against whom an application is made for a resale for false bidding. §10. Of oppositions for payment. 718. The prothonotary is bound to keep a register in which are entered all returns by the sheriff to writs of exe- cution issued by the coui't, with mention of the amounts levied, of the oppositions made to the distribution thereof, [and of all claims filed as well in the hands of the sheriff as in the prothonotary's office.] 86^^ Rule of P., S. G. 1, Where there were two opposants A Jin de crmaerver and the one contested the opposition of the other — Held, that such contestation f f * y' Ik . ^ 11 374 SEIZURE OF IMMOVEABLES, ARTS. 718-720. formed a distinct issue quoad such parties, and that all documeutary evidence raised by the issue, relative to such contestation, must be filed by the opposants, and it is not sufficient that such evidence be already filed by parties to the record. KeUy v. Fraser d: divers, 2 L 0. R. 368, S. C. 1852. 719. Oppositions for payment are necessary only for such claims as the registrar is not bound to insert in his certifi- cate of the hypothecs charged upon the immoveable sold, as required by article 700. [They are not necessary for claims resulting from muni- cipal or school taxes, or assessments for the building or re- pairing of churches, parsonages and church-yards ; and it is sufficient that a statement of such claims, certified by the secretary-treasurer, or other authorized agent of the corpo- ration, be filed in the hands of the sheriff or prothonotary. Claims for arrears of cena et rentes or other rents consti- tuted in their stead, may likewise be made by filing with the sheriff or prothonotary a statement thereof under the signature of the seignior, or creditor, or of his agent.] 790. Oppositions for payment may be filed with the sheriff, if he has not yet made his return, or in the office of the prothonotary where the return is made, within six days after the return. After this delay, they cannot be filed without permission of the court, and upon such conditions as it imposes. 837^ Rule of P., C. S. L. a c. 85, s. 4, § 3, and Schedtde A. 1. An opposition d Jin de eonserver may, on payment of costs, be filed at any time before the homologation of the report of distribution. Thivierge v. Boivin, 3 Rev. de L4g. 474, K. B. 1812. 2. On an opposition djinde eonserver by a transferee of seigniorial rights — Held, that such an opposition was merely a conservatory pro- cess, and did not require that notice of such transfer should have been made. Lamothe et al. K. <& McCarthy, 19 L. C. J. 107, post under art 761. ' 743. The parties are allowed eight days to contest the report of distribution, reckoning from the day on which it 743 to the merits cated, tested ^^«\ DISTRIBUTION OF MONEYS, ARTS. 742-743. 383 >i oneys [,atioii, )f any in any of the ice, be- jr such part, or uaterial 1 to dis- or writ- produce 9 by , the the case, is admis- as a wit- he ask to 27-28 V. [as in pos- )mnience- the judi- id. so as to ritof any |knd verily red or ex- feditor, or tanner as [tee defen- tbe same led in the jntest the ■vvhich it was entered on the posted list, if such day be a Monday, if not, the delay is reckoned from the Monday following. 92 Rule of P., 2 L a R. 9. 1. A person oppoaing will be allowed to contest the repurt of collo- cation and distribation after the delays have expired, where it is established by affidavit that he was interested, and that the party col- located appears on examination of his opposition not to be entitled to the amount of his coUooavion. Clapin v. Nagle tv Ntigk, 4 L. C. J. 286, S. C. 1860. 2. Permission to contest after the delays have expired will not be granted because of the omission having been due to another's inadver- tence or oversight. Fcrayth v. Morinet a/., 2 L. 0. J. 59, S, C. 1857. 3. On cause shown and on payment of costs, an interested party will be allowed at any time to contest. Prevost v. Deleademiers llocation. If there ho no authentic dischargo the ii«i-son thus collo- cated muHt ho called in, upon application to the court or judge, and in such cane tho provi«i4>nH of article 741 apply. If the person collocated has no known domicile in Lower Canada, or if he is doa 7Sfi. When no opposition for pajonent has been filed and no claim appears by the registrar's certificate, or when all the j^arties consent, the moneys levied may, without the for- mality of a report of distribution, be adjudged by the pro- thonotary to the parties entitled to them, upon a motion to that effect made either in term or in vacation. C. S. L. a c. 83, 8. 147, § 3. , m Vict. c. U (Qii^.) : 5. At the expiration of fifteen days from the date at which any re- port of collocation and distribution of moneys shall have been homo- logated, in whole or in part (as the case may be), whether by a judg- ment of any court, or by the order of a prothonotary or a clerk of a court in Lower Canada, the prothonotary or clerk of the court, within the office of which the said judgment, or order of homologation, is filed and of record, if no no+ice of appeal from such judgment or order of horn 'ogation shall have been served upon him, or, if no opposition has been made to such judgment or order of homologation, as herein- after set forth, within the said delay of fifteen days from the date of the said judgment or order of homologation, shall transmit, without delay, to the Treasurer of the Province of Quebec a copy of the said judgment or order of homologation, and a certificate under his signa- ture, and the seal of the court establishing and setting forth that no notice of appeal from the said judgment or order of homologation, nor any opposition to the same has been served upon him, within the said delay of fifteen days, and on receipt of such judgment and certificate, the treasurer shall immediately pay the moneys so distrllyuted, by de- livering to the sheriff or to the officer to whom the same belongs, liis orders or cheques in favour of each of the parties mentioned in the judgment or order, for the amount awarded to each. And if an appeal has been taken from the said judgment or order of homologation, or an opposition made thereto in relation to one or more of the said collocations, which shall be established by the certificate of the prothonotary or clerk, the treasurer shall not pay th« amount of the J' Wl ho C11 the a e opi of i the and been or cl or or shall peal ( the ri his op of his t.w fo to the fifteen been n the mc til the either f MajestI of bciij clerk oi moneysl Bench, the cau belongs, his [tioned in the Int or order of one or more n certificate of famoontofthe collocations so contested until after a definite sentence has been pro- nounced upon such contestation, or until after such contestation rhall have been settled as hereinafter provided. Any pers jn or corporation desirous of instituting an appeal from the judgment or order of homologation before mentioned, or of makin.' any opposition thereto, if by law any such opposition can be made, must, within fifteen days from the date at which such judgment or order of homologation shall have been rendered, produce at the office of the ciurt where such tjrder or judgment is filed, and of record, by causing the same to be served upon the prothonotary or clerk of such court, a copy of the writ of appeal which he has caused to be issued, or of his op[)osition (if aa opposition has been made), and it shall be the duty of the prothonotary or clerk to make an entry of puch document in the registers of the court, and the same shall form part of tho record ; and in the event of the said opposition or writ of appeal not having been served within the aforesaid fifteen days, upon the prothonotary or clerk of the court, the sums of money mentioned in the judgment or order of homologation shall be paid ; but the foregoing provisions shall not deprive any one who shall have omitted to prosecute his ap- peal or opposition within the fifteen days as hereinabove set forth, from the right of so doing, within tlie delays established by law, or of filing his opposition within the delays establiahed by law, and in the event of his succeeding, of recovering by action at law, the moneys paid under the former judgment. Whenever any appeal shall have been instituted to the Court of Queen's Bench, or any opposition put in within the fifteen days as aforesaid, and that the prothonotary or clerk shall have been notified of such appeal or opposition as herein above set forth, the moneys aflfected by such appeal or oppositi )n shall not be paid un- til the contestation raised thereby shall have been definitely settled, either by the Court of Queen's Bench by the Superior Court, or Her Majesty's Privy Council ; in the event of the matter being susceptible of being appealed to the latter jurisdiction, and the prothonotary or clerk of the court shall not grant his certificate for the payment of the moneys until a copy of the judgment rendered by the Court of Queen's Bench, by the Superior Court, or by Her Majesty's Privy Council, if the cause has been carried into such latter jurisdiction, or a discon- tinuation of such appeal or opposition, or a certificate uf the clerk of appeals in the said province, establishing that such appeal has been given up and abandoned, or a certificate of the prothonotary or clerk of the court establishing that such opposition has been discontinued shall have been filed in the office of the Superior Court. In all cases whenever a consent in writing, signed by all the parties in- terested in the caure and attested by the prothonotary or clerk, shal have been filed with him, the treasurer shall immediately pay or dis 890 SEIZURE OF IMMOVEABLES, ART, 753. P'' tribute the moneys bo deposited, by delivering to the sheriff or other officer entitled thereto, his cheques or orders in favour of any person xnentiotied in such consent for the amount therein set forth. § 12. Of anb-collocatiyn. 7«I3. Any creditor of a person who is entitled to be col- located, or is beneficially collocated upon moneys levied, has a right to file a sub-opposition, demanding that, to the extent of his claim, the sum accruing to his debtor be not paid to such debtor, but to him. He canmt, however, exercise this right unless his debtor is insolvent, or his claim carries executioi*. Path. Proc. 235; 2 Pig. 737-822; 1 L. C. R 498; 10 L .C. M. 309. 1. Property of certain minors having been taken in executiott, the tutor of the minors filed an opposition, and was collocated for a cer- tain sum. The appellant, on the day fixed for the homologation of the report, moved for leave to tile an opposition d fin de conserver en sorts ordre, founded on a judijiment against the father of the minors. The motion was rejected on the ground that the judgment had ceased to be executory, and that being presented at so late a stage of the proceeding it was calculated unjustly to deprive the minors of the use of moneys of which they were in need. Doyle et al. v. McLean es qual., 10 L. C. R. 309, S. C. & Q. B. 1860. 2. An opposition en sous ordre cannot be received unless a titre exe- cutoire, or the insolvency of the party against whom such opposition is made be set up and alleged in the opposition. Tenner v. Bernard et al. de Fatton, 1 L. C, R. 498, S. C. 1851. 3. On a motion to reject an opposition en sous ordre — Held, that such opposition is a proceeding in the nature of a saisie arrSt and must be either founded on a j\idgment or supported by an affidavit, as in a case ot Mi attachment before judgment, and also that money paid by the de- fendant to the sheriff in satisfftcti -in of an execution was the property of the plaintiffs, and not susctpt.ibie of being treated as money levied under such a writ, and that the sheriff had no right in such case to deduct his commission and court house tax. Stirling et al. v. Durliiuj dc Fowler, 1 L. C. J. 161, S. C. 1867. 4. .\n opposition en nous ordre which is not based on a judgment can- not bo maintained. The Mayor, 0. 2. The names and addresses of all and each of his credi- tor' , the amount of their claims, and the nature of each cla whether privileged, hypothecary or otherwise. i: .1 statement must be accompanied with a declaration by the debtor that he consents to abandon all his property to his creditors. C. S. L. C. c. 87, ««. 12, 13. il P i 4 m 1 1 fW ''W 1, KeU, on petition of defer.dant that cause being shown he would be permitted, even five months after judgment, to file the statement of affairs required by C. S. L. C, cap. 87, sec 12, and that plaintiff's petition fur imprisonment would be dismissed in consequence of such permission. Henderson v. Lemieux, 17 L. C. R. 414, S. C. «& S. C.R, 1867. • 2. The mere filing of the statement in conformity with art. 764 does not entitle the party arrested to be released from custody, such State- ment being subject to attack by any creditor. Bruckert v. Moher, 21 L. C. J. 26, S. C. 1876. 765. [The debtor must give the plaintiff notice of the filinj; of the statement and of his declaration of abandon- ment.] 766. A debtor who has been admittf^d to bail is bound to file this statement and declaration within thirty days from the date of the judgment rendered in the suit in which he was arrested. Any person condemned to pay a sum exceeding eighty dollars, exclusive of interest frpm service of process and costs, for a debt of a commercial nature, is likewise, after such moveable and immoveable property as he appears pos- sessed of have been discussed, bound, upon being required to do so, to file a similar statement. IhicL sa, 12, 18. credi- [ each iration operty le would tatement jlaintiflf's B of such S. C.R. , 764 does ucli ^ate- Moher, 21 ce of the abandon- is bound jirty days in which of abandonment of property, arts. 767-768. 395 Form No. 39. In connection with article 766. To C. D., of (state here the address and calling of the party), Defendant in the cause wherein the Judgment, an au- thentic copy whereof is hereunto affixed, has been ren- dered. Take Notice that the undersigne 1, A. B., Plaintiff in the siiid cause, hereby demands of you, under and by virtue of the provisions contained in article. 7G6 of the Code of Civil Procedure of Lower Canada, a copy of which article is here- unto subjoined for your further information in the premises — that, within thirty days from the personal service to be made upon you of the foregoing certified copy of the said Judgment, together with this Notice, you do make and file the statement prescribed in the said article, in the manner and under the penalties therein set forth. Done at , this day of , 18 . A. B. Plaintiff. (Here imert a copy of the said Article.) If 767, If the debtor is in gaol he may file such statement and declaration at any time. Ibid. s. IS. . ■ "' 768. Immediately after the filing of the statement and declaration of abandoum'.nt by the debtor, the prosecuting creditor may apply to the coirt or judge for the appointment of a curator to the property thus abandoned, after a notice, however, of such application has been given in the Canada Gazette,* fifteen days at least before presenting the same, calling upon the creditors to be present. Ibid. s. 14. * Now the " Quebec Official Gazette," 31 V. c. 13, . . 4. (Que.) 396 OF ABANDONMENT OF PBOPERTT, ART. 768. ?U W ^ Form No. 40. In connection with article 768. Lower Canada, ) District of ) In the Superior Court. ' No. (fiere state the number of the action.) / A. B., Plaintiff; ; . C. D., Defendant. Public Notice is hereby given, in pursuance of the pro- visions of article 768 of the Code of Civil Procedure' of Lower Canada, that at the hour of in he noon of the day of next {or instant, as the case may he), or as soon after that hour as may be, at the Court House at (or, as tlie case may be), at the Chambers of the Judge (sufficiently clescribing the same), the said A. B., Plaintiff in this cause, will apply to (naming the Court, and indicating lohether tlie applica- tion is to be made' to such Court, or to a Judge thereof), for the appointment of a fit and proper person to be curator to the property, real and personal, of the said C. D., Defendant in this cause, who has made and filed in the office of the Prothonotary of the said Court, a statement under oath of the same, and also of his creditors and their claims, together with a declaration that he is willing to abandon his property for the benefit of his creditors — the whole as by the said Code required. And all persons, creditors of the said C. D., are hereby notified then and thei'e to attend, to make to the said Court (or Judge, as the case may be) such representation or state- ment in the premises as they may see fit to make. Oiven at jthis day of ,18 A. B., Plaintift. OF ABANDONMENT OF PROPERTy, ARTS. 769-770. 397 the pro- jedurc of next {or kthour as case 'may lescrwing will apply applica- \ereof), for curator to [Defendant tce of the ier oath ot Is, together Is property |y the said ire hereby Isaid Court In or state- ?laintifi. 7ft9. [If the plaintiff fails to take stepa for the appoint- ment of a curator, the defendant or any other party in the suit may do so, with the observance of the same forma- lities.] 770. The curator appointed is bound to make his ap- pointment known by an adveiiisement inserted during one month in the Canada Gazette,* and in any other newspaper that the court or judge may designate. If the curator fails to do so, the plaintiff or the defendant may cause such publication to be made. Ibid., aa. 14, 15. Form No. 41. Lower Canada, District of In connection with article 770. !■ In the Superior Court. No. {here atate the number of the action.) A. B., Plaintiff; va. C. D., Defendant. and E. F., Curator to the property and effects of the said Defendant. Public Notice is hereby given, in pursuance of the provi- sions of article 770 o ' the Code of Civil Procedure of Lower Canada, that on the day of instant {or last past, cm the caae may be), the said E. F., of {atate here the addreaa and calling of the Curator), was by order of {describe here the Court or Judge in question), appointed to be Curator to the property and effects, of every kind, * Now " The QucbM OfficUl Gazette." SI V., c. 13, i. 4 (Que.). iv .•)1)8 OF AHANDl luifU- fiiriembim, and that there was error in the judgment of the Superior Court disiniuing the rule. Mercnre *« »»»!« 3. Where it was proved thaf tK» tendered him ten E^gJ li,!*^^^^^^^^ «^ -« ^^ the plaintiff, had If 7''^'^ '"* '^^ ""-^'Je o Sat T: ^"^"^- »«Pencea for a,l ment of eac^ of plaintiffs, and that on « ^tu"'''"'' ^«™P««ing the pay r ' '^ ^ ""^ — 't, and another hal^ ^'""'"^ P^-' -asZ ' a r ^^^S'r*™'"^"* "P«° ^t, and one of th""" ^''"^ ''^^ '^"^^e or aefaced-fi.W, that the tended ZTJ ! T^""""^ ^^^ al«o been ;J^edfro.eu,tod,. --/o Jr^ ' ^1 ^t^^ ^^^^ 4. ffeld, also tlmf ^^k . . ^- cap. ,02, ;esp::eL; trrarV'^ >^"^^ S*«t"te 16& 17 country. lb. ^ ^«»-l'ty of such tender, applied tolhis as ahmentar, allowance, and the nll?i'-"*'^"' '"« «hilli„'g« ™ tendered to the defendant 1a ■ "^ '" Pursuance of such n^^ *e creditor may be felie;:^"^^""-' »^- ™»'ioned, ance. P*^'"? ""e weekly allow- ''•3, The debtor mav If i,„ t »-kred,^agai„3tsuoMl,- o'lnrr'''" ''°'°g «»■ ^-0 the .„rt or J„d,e sel^Xr 'tbt S^" V^ 11 I If ' 404 OF COERCIVE IMI'RISONMENT, ARTS. 792-796. 1. Where a rule for contrainte par corps ha« been made absolute, the party condemned cannot, by a Bubsequent petition, allege payment and non-indebtedness previous to the judgment on the rule. Geiierewc \. Howley etal. d- Jones, 21 L. C. J. 162, S. C. 1877. 2. Where motion is made for a rule of contempt the party resisting it may urge immediately all the grounds ho might urge against the rule itself. Cremr dit 8t. Jean v. Crevier dit St. Jean, 9 R. L. 313, S. C. 1877. 793. The debtor may obtain his discharge : 1. By paying into the hands of the sheriff or of the pro- thonotary, the amount of the condemnation, in principal, interest and costs ; 2. With the consent of or a release from the creditor ; 3. Upon the failure of the creditor to pay in advance into the hands of the gaolei the alimentary allowance granted to him; 4. By the abandonment of his property, as mentioned iu the preceding section ; 6. By means of the discharge from liability, obtained un- der the provisions of law concerning insolvent traders ; 6. If he has completed his seventieth yeai*. 794. Such discharge must, however, be ordered by a judge upon application, of which notice has been given to the prosecuting creditor. Poth. 263-4-5 ; 1 Pig. 837 et. seq.; 27-28 v., c. 17, 88. 9 et 8eq. ; C. P. C. 800. 795. When the debtor has been discharged by reason of default of payment of the alimentary allowance, he is no longer liable to coercive imprisonment for the same debt. OF CAPIAS AD RESPONDENDUM, ARTS. 796-797. 405 lute, the nent and ivereux v. ebisting it it the rule 313, S. C. I the pro- priiAcipal, editor ; Lvance into granted to entioned in ibtained un- aders ■, rdered by a j.en given to 837 et. seq.; w reason oi ice, he is no le debt. BOOK SECOND. TITLE FIRST. OP PROVISIONAL PROCEEDINGS WHICH ACCOMPANY SUM- MONS IN CERTAIN CASES. GENERAL PROVISION. 796. A plaintiff may, in certain cases, simultaneously with the summons, or pending the suit and before judgment, have the person or the property of his debtor, or the object in dispute, placed in judicial custody, as explained in the fol- lowing chapters [subject to a right of action by the latter to recover damages, upon establishing by proof against the creditor a want of probable cause]. G. P. L. 208-237. CHAPTER FIRST. OF CAPIAS AD RESPONDENDUM. SECTION L OP THE ISSUING OP THE CAPIAS. 797. When the amount claimed exceeds forty dol? ^rs, the plaintiff may obtain, from the prothonotary of the Superior Court, a writ of summons and arrest against the defendant, if the latter is about to leave immediately the Province of 406 OF CAPIAS AD RESPONDENDUM, ARTS, 797-798. Canada, or if ho secretes his property with intent to defraud his creditors. Ibid. 210 ; C. S. L. C, c. 87, 8. 1. 1. The Pro" ir b<9 of Manitoba does not make part of Canada in the terms of art. "97 ''. C. P., and consequently the debtor who leaves the Provinoe of i^uebec for that part of the Dominion cannot claim to be exempt from arrest under capias on that ground. Laine et al. v. Clarke, 2 R. C. 232, S. C. R. 1872. ^ y08. This writ is obtained upon an affidavit of the plain- tiff, his bookkeeper, clerk, or legal attorney, declaring that the defendant is personally indebted to the plaintiff in a sum amounting to or exceeding forty dollars, and that the deponent has reason to believe and verily believes, for rea- sons specially stated in the affidavit, that the defendant is about to leave immediately the Province of Canada, wi'4i intent to defraud his creditors in general, or the plaintiff in particular, and that such departure will deprive the plain- tiff of his recourse against the defendant ; or upon an affi- davit establishing, besides the existence of the debt as above mentioned, that the defendant has secreted or made away with, or is about immediately to secrete or make away with his property and effects with such intent. C. P. L. 212-14. 1. On a motion to quash a capias, on the ground that the affidavit did not show that it had been sworn toby the plaintiff, or by his book- keeper, clerk or legal attorney, as required by 25 Geo. 3, cap. 2— Meld, confirming the decision of the court below, that the rule obtained on such motion should be dismissed. Coates ct- the Bmik of Montreal, 2 Rev. de L^g. 328. 2. An affidavit made by the bookkeeper of a branch of the Upper Canada Bank was held to be sufficient. The Bank of Upper Canada v. Aiain, 5 L. C. R. 318, S. C. 1855. 3. An affidavit commencing, " T. S., of the City of Montreal, book- keeper of H. H., the plaintiff, being duly sworn, doth depose and say " — was held to be sufficient without any statement in the body of the affidavit that he was such bookkeeper. Began v. Hoakins, 12 L. C. R. 84, S. 0. 1861. 4. The president of an incorporated company may make the affida- vit. The Moisic Iron Co. v. Ohen, 18 L. C. J. 29, Q. B. 1874. OF THE ISSUING OF THB CAPIAS, ART. 798. 407 Lefraud la in tl^e eaves tbe am to be ! et al. V. he plain- ring that utiff in a 1 that the 3, for rea- f endant is lada, wi^h plaintiff in . the plain- pon an affi- |bt as above _iade away away with [. L. 212-14. s the affidavit f by hia book- p. 3, cap. 2— [rule obtained ; of Montreal, I of the Upper oer Canada v. lontreal, boot Ipose and say " he body of the s, 12 L. 0. R. take the affida- 1874. 5. Action of capias was taken by several plaintiffs for debts due to each of them, and the affidavit was made by one of them, setting out that the defendant was indebted to him in u sum exceeding £10 cur- rency, and action was brought for the whole amount due — Held, that the capias must be quashed, the deponent not appearing to act as the aj^ent or legal attorney of the other legatees, his co-plaintiffs. Bimr- assa V. BromoM d al. 14 L, C. R. 23, S. C. 1863. 6. Where the cause of action as stated in the affidavit differs from the cause of action as stated in the declaration — Held, on motion, that the writ must bo quashed. Malhiot v.Bernier, 1 L. C. R. 389, S.C. 1861 7. The affidavit upon which a capias issued stated that the defend- ant was indebted to the plaintiff in the sum of £24 13s. lO^d., whereof the sum of £4 13s. lO^d. was for work and labour done and performed by the plaintiff for the defendant, and the 'balance was the amount of a claim transferred to him by another, by a deed of assignment or transfer before notaries. On motion to quash — Held, notwithstanding that no notice of such transfer had been given to defendant, except by the service of the action, that it was sufficient to support the writ, and the motion was dismissed. Qidnn v. Atcheson, 4 L. C. R, 378, S. C. 1854. 8. In an action to recover damages for malicious arrest under capias where it was proved that the plaintiff's claim amounted only to £9 Us. 7d., and that in order to make up the necessary amount he pro- cured the transfer to him of a sum of fourteen shillings due to another party, and without any notice to the defendant of the transfer, caused the capias to issue — Held, confirming court below, that such proceed- ing was altogether illen;al, and yould justify an action of damages for false arrest. Laidlaw v. Bums, 16 L. C. R. 318, Q. B. 1866. 9. Where the plaintiffs by their evidence showed that two notes, constituting the greater part of their claim, were obtained merely for the purpose of eu^ling them to adopt any course they might think proper against the defendant, and without their becoming actual own- ers of the notes — Held, that they nevertheless had the right to arrest defendant by capias as their personal debtor for the whole sum by them demanded. tVinning et al. v. Fraaer, 13 L. C. J. 167, S. C. 1869. 10. A writ of capias will be quashed on motion if the place where the debt was contracted is not mentioned in the affidavit. Brison v. McQueen, 7 L. C. J. 70, S. 0. 1862. 11. An affidavit may contain several different averments of debt in- consistent with one another, and is not void because one of them is insufficient. Oreen v. Hatfield, 12 L. C. R. 115, S. C. 1862. ^' 408 OF CAPIAS AD RESPONDENDUM, ART. 498. 12. On motitn to quash a writ of capias, on tho ground tlmt there was no sufticieni statement of the debt, inasmuch as it was slaifii to bi due in sterling noney — HM, that the amount lue n-r y be legally f,(j stated, It: the value of the pound sterling was liolinod by the Cana.';' Curr3ncy Act. The Bank of Montreal v. Brown, \\ L, 0. X\. ^44, ;:'.. C. 1807. 13. The debt is sufficiently act forth in the affidavit by stating that the defendant is ind(!\>ted to the oiAintiff in the sum of £39, without stating the causo of debt, or tho place where it was contracted. l)e~ bkn V. Maraan, 14 L. C R. 89, S, C. 1S03. 14. Wh«re the affidavit alleged that the deponent w 3.8 ap- it at Mon- treal of th« plaintiffs, and that tho defendant >vas jusiiy and p-rBonully indebted to the pliintitJs in a sum exceeding i?40, to wit in a sum of |r:i.r)Ou, uoing aa and for th»B price at a large quantity of glass sold by th " (Jeponenfc as agent of the plaintiffs to the defendant — Held, that the i.r. ISO of action was sufficiently set forth. Gregory d; The Boston (£• Sa^ulwkh GUtna Co., 9 L. C. J. 134 & 15 L. C. R. 475 & 1 L. C. L. J. 37, Q. B. 1865. 15. The allegations that the defendant is personally indebted to the plaintiff for work done by the plaintiff for the defendant, and for wages smd salary earned by the plaintiff in the service of the defendant, is sufficient, although it is not stated that the work was done at the in- stance or request of the defendant. Joutras v. JJuiUop, 7 L. C. R. 420, S. 0. 1857. 16. The statement that the defendant is personally indebted to the plaintiff in the sum of $300 for the balance of an account for various transactions which thesaid defendant had with the plaintiff in their busi- ness as wood merchants, which sum defendant had acknowledged to owe the r^tlntiff is a sufficient statement of the cause of debt to enti- tle the plaintiff to the capias. Kenny v. McKeovon, 9 L. C. J. 104, S. C. 1864. 17. An affidavit for capias is insufficient if, being taken for damage suffered by goods on board ship, it does not state with certainty that the goods were so damaged while in the custody and safe-keeping of the defendant, and before delivery. Oale et al. v. Brown, 3 L. C. B. 148, S. C. 1852. 18. An affidavit to obtain a capias, which states that the defendant is indebted to the plaintiff in a certain sum for board and lodging dur- ing the space of six months and for articles of clothing furnished him, is bad. CutMert v. Banett, 1 L. C. R. 212. OP THE ISSUING OF THE CAPIAS, ART. 498. 409 iia* there legally m) be Caiia'? E. :44,.i. tftting that J9, without icted Ve^ rent, at Mi. n- d noruonsilly in a sum of jlaas sold by i—Beld, that 27ie BosfoJi tfc 1L.C. t. J idebted to the , and for wages defendant, ia one at the in- L. C.R.420, ndebted to the jnt for various ff in their busi- oiowledged to ,f debt to enti- . 0. J. 104, S. ■n for damage . certainty that safe-keeping I'f u«i, 3L.C. B. the defendant [nd lodging dur- fumished him, 19. An affidavit for capias must set forth the cause of action and the nature of the defendant's indebtedness. Rolland v. GuUbaxdt, 12 L. 0. J. 276, S. 0. 1868. 20. On a motion to quash a capias on the ground that the word " personally " was omitted in the affidavit — Held, that the affidavit must contain the allegation that the party sought to be detained is personally indebted to the plaintiff. Alexander v. McLachUm, 1 L. C. J. 5, S. C. 1856. 21. Where the affidavit shows a perscnal cause of action, the allega- tion that the defendant is personally indebted is not essentially neces- sary, and the allegation that the plaintiff may lose his said debt and sustain damage, is equivalent to the allegation that he may be deprived of his remedy. Lampaon tfc Smith, 7 L. C. R. 425, S. C. 1857. 22. An affidavit to hold to bail must be positive that the debt is due. The words " as appears by the plaintiff's books," or, " as the plaintiff believes," is not sufficient, and the defendant in such case will be dis- charged on filing a common appearance. Hodgaon v. Oliva, 3 Rev. da L6g. 349. 23. In an affidavit for capias, the plaintiff stated that the defendant was indebted to him in the sum of £15, potir effets d'ii^iceries veiidtu et liwis A Quebec, and gave no other statement as to the indebtedness. The reason given for his belief that the defendant was about to leave the country was certain information he had received, but the names of his informants were not given — Held, that the affidavit was insufficient on both these points, and the capias was quashed. Lebel v. O'Brien, 2 R. C. 238, S. C. 1872. 24. Where an affidavit alleged a personal indebtedness of $155,000, value of certain American bonds, etc. " stolen from the plaintiffs in New York and then in the possession or under the control of the de- fendants in Montreal, and also that the defendants had secreted said bonds, etc. , and were about immediately to leave the province uf Ca- nada," etc., giving as reasons of belief the character of the defendants who were professional thieves, and the information of the New York detectives to that effect — Held, that although the person making the affidavit had no absolute personal knowledge of the facts set forth in it, the affidavit was, nevertheless, in itself sufficient. The Royal Insur- ance Co. v. Knapp & Oriffin, 11 L. C. J. 1, S. C. «fe 2 L. C. L. J. 189 & 201, 1867. 25. But held, also, that under such circumstances the cause of action arose in a foreign country, and the defendant must be discharged, lb. 410 OF CAPIAS AO KBSPONDEVDUM, ART. 498. 26. An affidavit alle<{ing a debt to oxist need not state when the same was contracted, nor sho.v that it was contracted within the five years next preceding ; Nor that the sale and delivery were made to the defendant, when they are alleged to have been made " at his instance and request." When the facts upon which hih' belief is based, are sworn to directly, and not as hearsay, deponent need not'disclose the name of any infor- mant. Maguire v. Bockett, 3 Q. L. R. 347, S. C. 1877. 27. A suit will not lie whore the defendant is domiciled in the United States and is merely returning home after a temporary sojourn here, and where there is no allegation of any special circumstances of fraud. Kemiud d- Vanduaen, 21 L. C. J. 44, Q. B. 1872. 28. Where the plaintiff in his affidavit for a capias after judgment deposed, as the ground of his belief, that the defendant was about to leave the Province of Canada with intent to defraud, that he, the de- fendant had made no attempt to pay the amount of the judgment against him, and was a seafaring man, resident out of the Province oi Canada, and was only temporarily in Montreal as master of a sea-going vessel, and was about to depart from Montreal in command of said ves- sel — Held, that the grounds of belief were suffi lent to maintain a capias. Macdougall v. Torrame, 5 L. C. J. 148, S. C. 1861. 20. Held, that the plaintiff was justified in his belief that the defen- dant "^out immediately to leave the Province of Canada, with in- tent to . id the plaintiff, in that the defendant had bought from the plaintiti a large quantity of wheat of the value of 88,293.75, pay- able cash on delivery, and had received delivery of the wheat, but had only paid portion of the price, leaving a balance of #!*?,993.57 unpaid ; and that the defendant, upwards of two months afterwards, was about to go abroad to Scotland, his original domicile, where his family had resided for five years, without paying the plaintiff the said balance, and without leaving any property in Canada out of which the plaintiff could be paid, and after repeate''. applications to him for payment. Ross et cd. V. Bunw, 7 L. C. J. 35, S. C. 1862 & 10 L. C. J. 89, Q. B. 1864. 30. An affidavit contains sufficient grounds for belief of the defen- dant's departure with fraudulent intent if it be stated that he refuses to pay the sum sworn to be due, that the vessel of which he is master is immediately about to sail for Europe, and that the defendant is to sail therein. Lefebvre v. Tullock, 5 L. C. R. 42, S. C. 1854. 31. An affidavit in which it is stated that the reasons for believing that the defendant is about to leave the Province with a fraudulent or THE ISSUING OF THE CAPIAS, ART. 498. 411 neii the the five t, when est." directly, ly infor- i in the itances of judgment } about to e, the de- iudginent 'rovince oi i sea-going )f said vea- naintain a the defen- with in- ught from 93.76, pay- at, but had 57 unpaid ; was about family had alanoe, and he plaintiff payment. 89, Q. B. »r the defen- t he refuses he is master endant is to tor believing [a fraudulent intent are, that he Ib the master of a veuel which is loaded and ready for sea, with the defendant as master, and that the defendant himself had stated that he was immediately about to tail to parts beyond the the sea is auffioient. Qtiinn v. Atcheaon, 4 L. 0. R. 378, S. C. 1864. 32. Where an affidavit stated that the deponent's grounds for believ- ing that the defendant was about to leave the Province with intent to defraud his creditors were that the defendant's vessel was loaded and ready for sea, and that he, the defendant, intended sailing in her, and had told the deponent that he would not retura to Canada, it was held to be sufficient. Wilson v. Reid, 4 L. 0. K, 157, S. C, & Berry v. Dixmt, 4 L. 0. R. 218, S. C. 1854. 33. Defendant had by false pretences obtained possession of 400 bags of the value of 980 belonging to plaintiff, and, being master of a ship on board of which they -ifv^re carried, was about to leave the port — Held, that the plaiutitf was entitled to a writ of capias for the recovery of the value of the bags. MUligan v. Maaaon, 17 L. 0. J. 150, 8. G. R. 1872. 34. Where the plaintiff had sjt up as ground fur capias "that the defendant was about to sail in his said vessel for Europe or other parts of the world " it was held insufficient. Faquet v. McNab, 3 R. L. 456,. S. C. 1871. 35. On a motion to quash a writ of capias on various grounds — Held, with regard to the departure of the defendant, that, where the de- ponent alleged as his ground of belief that the defendant was about to leave the province, the fact that the defendant was a mariner, having no domicile in the province, and was about to sail with his ship, it was sufficient. Haaaet v. Mulcahey, 6 L. C. R. 15, S. C. 1856. 36. It is not necessary to state in such affidavit that the defendant has been asked to pay the debt and refuses to do so. Ib. 37. The grounds of the deponent's belief are sufficiently set forth by a statement to the effect that defendant stated to dex onent at a time and place mentioned that he was about to go to California, one of the United States of Aniurica, to make money, and aaked the deponent to procure him money for the voyage, and afterwards made the same statements to persons named in the affidavit. Debien v. Marsant, 14L. C. R. 89, S.C.I 863. 38. In an affidavit on the ground that the defendant is about to leave the province, the omission of the words " with intent to defraud his creditors generally or the plaintiff in particular " is fatal. Lamarche V. Lthroeq, 1 L. C. R. 215, S. C. 1851. 412 OF CAPIA8 AD REHPONDKNDUM, ART. 498. If 39. The allegation in an affidavit that the defendant himaelf itatod that ho was leaving; fur California was held to be siitHcient to justify the issuing of a writ of capias. Benjamin et al, v. WU$on, 1 L. C. R, 361, S. C. 1850. 40. The allegation that the defendant had taken away goods placed with thu plaintiff as security for the payment of a note, that he had refused to deliver a horse, and that he was a stranger and had failed to keep appointments, an\it to leave the province, and that the belief uf the deponent that he is about to leave the province with intent to defraud, is founded," is instiffioient, as the affidavit must sjieciflcally allef^e that the defendant is about to leave the province with intent to defratul. L'ffoUt v. Buttt, 10 L. 0. R. 204, 8. 0. I860. B8. The words "may lose his debt or sustain damage" suffice. .i4>i- fiertcn v. BruHgaard, 3 Q. L. R. 287, 0. 0. 1877. 59. Contra, Slerenson v. Ri>l>erh,•» "IB bail r made away Roheriion, 21 798C. C. P. [ndant had se- Bcreteormake etc., and that [d, hath »;very ice believe," i» [ a C. 1868. Ly and effects effects." lb. of his creditors >ting, an^ *^°'* rtfinghim^i* Iveable property —he being at the time insolvent, and havinK no other estate — and in the deed of which sale defendant had matle a statement that hu had received only 9198 on said sale, whereas hu had actually roocived 9-^00 Held, that the fact of the defemlant alienating his real estate was not of itB«'lf a Biiihoient ground for issuing the writ, but as there was evidence of fraud in the transaction, the motion would he rejected without costs. IMmimt V. C<»iH, 7 L. 0. J. 119, 8. C. 18Ua. 08. Whore an affidavit for capias set forth that the defendant had Hucreted and made away with his individual estate, debts and etfecta with intent to defraud his creditors, and it was proved that the pro- porty which ho had disposed of was immoveable property— ^n/i/, that that was a secretion with intent to defraud sufHoient to 8up{M>rt the capias. Lamjky v. Chamberlain, 5 L. C. J. 49, S. C. 1858. (i9. Where it was proved that the defendant had no effects of his own, and that the goods he waa disposing of were his wife's, the cai>ia8 was set aside and quashed. Oemlt'on v. Lemieux db Lemieux, 12 L. C. 11. 222, S. C. 1857. 70. The defendant appealed from a judgment of the Superior Court diHiiiissing his petition to be released from custody under capias, on the ground that the allegations of plaintiff's affidavit had been disprovtd— Uild, although the special ground of plaintifl' set out in the affidavit had been disproved, yet if the plaintiff establish that his pretensions as to defendant's intended departure from the province with fraudulent designs were well founded, the capias would be maintained. Blacketisee tt- Sharpley, 6 L. C. J. 288 & 10 L. C. R. 240, Q. B. 1860. 71. Circumstances which amount to fraudulent preference by the debtor insolvent do not amount to secretion, and were not, therefore, sufficient grounds for a capi.^s ; but where there was satisfactory evi- dence of the intention of the defendant to abscond as well, a capias would lie. Tremain v. Saiimm, 4 L, C. J. 48, S. C. 1860. 72. The foot that defendant purchased a quantity of flour from plain- tiff for cash, to be paid immediately after delivery, and then obtained advances on the flour and pledged the same for such advances, and wholly failed to pay the vendor, asserting as his reason for not doing so that he was insolvent, is a sufficient ground for the issuing of a writ of capias. Raphael v, McDonald, 9 L. C. J. 336, S.C. 73. Where the defendant moved to qualh on the ground that no fraudulent intent whatever was disclosed by the reasons given in the affidavit, and also on the ground of vagueness— If e/d, that there was nothing in the act which required that tlie fraudulent intent on the part of the defendant should be alleged in the reasons of plaintiff'. Henderson v. EnnesH, 2 L.C.J. 186, S.C. 1858. i: 416 OF CAPIAS AD RESPONDENDUM, ABT. 498. 74. In an affidavit the deponent must stat« specially the reasons that lead him to believe that the debtor is making away with or secreting his go)d however to state who gavo him the information or when ho re- ceived it, provided that it appear by the terms of the affidavit and the circumstances therein related that the information was given to him at a time sufficiently recent to supoort an affidavit. Beli v. VigneauU d; HouUaton, 5 R.L. 697, S.C. 1874. 75. An affidavit for capias alleging in the alternative that the defen- dant has secreted or made away with his property and effects is insuffi- cient. Ostell V. Peloqnin, 20 L. C.J. 48, S. C. 1875. McMaster V. Robertson, 21 L. C. J. IGl, S. C. 1877. 7C. Application was made by the defendant to bo discharged from imprisonment under capias, on the ground that he had made an assign- ment of his estate for the benefit of his creditors, previous to the issu- ing of the capias — Held, that, as the Insolvent Act did not expressly take away the right of capias after assignment, and as the circumstan- ces showed systematic fraud on the part of the defendant, the applica- tioTi must be refused. Stevemon et al. v. McOwan, 3 L. 0. L. J. 38, S. C. 1867. 77. A creditor who brings action against the insolvent, accompanied by capias for a sum of money due at the time, is not bound to proceed in the name of the assignee. Roy et al. v. Bemulin, 5 R. L. 232, S. C. 1873. 78. And such an action after assignment is good, under the Ins. Act 1869. Beaudin & Roy et al. , 20 L. C. J. 308, Q. B. 1875. 79. Held, reversing the judgment of the Superior Court, that a ca- pias on the ground of fraud and s' retion may issue at the suit of a creditor after the assignment by the debtor in insolvency and the ap- puintiuent of an assignee ; but an attachment of the debtor's effects en main tierce will not be maintained. Nield v, Ferland d; Feriand ft Nield, 1 Q. L. R. 228, S. C. R. 1875. 80. Proof of undue preference and insolvency does not constitute se- cretion or making away with property so as to justify a capias. Em- manuel et al. v. Hagens tfc Hagens, G R. L. 209, S. C. 1874. 81. Where motion was made to quash the writ on the ground of ir- regularities in the affidavit — Held, that, where the plaintiff was des- cribed as "of the city of Kingston, Canada West," it was a sufficient indication of his domicile. Berry v. May, 13 L. C. R. 3, S. C. 1859. 82. And the words " maketh oath and saith," were held to be a suf- OF THE ISSUING OF THE CAPIAS, ART. 798. 417 that sting jeing lete- d the dm at lult d' defen- insuffi- ad from I assign- the iBSU- sxpreasly Bumstan- 3 applica- J. 38, S. lompanied ;o proceed 232, S. C. le Ina. Act that a ca- [e Buit of a md the ap- I'b effects en fertand (^ institute se- BLpias. E^n- Iround of ir- \iff was des- 1 a sufficient , C. 1869. t to be a suf- ficient averment that the deponent was sworn, and that it was conse- quently unnecessary to say that he had been duly sworn. lb. 83. And held, also, that it is unnecessary in describing p promissory note as the cause of debt to state where the same was made. lb. 84. The words " at Quebec" in the jurat show sufficiently ^here the deponent was sworn, and where the day of the month and the year in such jurat were wiitten in figures it was held to be sufficient. lb. 85. A writ of capias will lie against a debtor resident in Ontario, on the ground of secreting property in Ontario, if he be found in this Pro- vince. Oalt et al. v. Robertson, 21 L. C. J. 281, S. 0. R. 1877. 86. A capias may lie against a debtor who has made an assignment under the Insolvent Act. Bobei-taon et al. v. Hale db Hale, 21 L. C. J. 38, S. C. 1877. 87. Plaintiff brought action of damages for malicious arrest, com- mencing by a cajidas which was allowed by a judge to issue for $1500. The defendant moved to quash on the ground of insufficiency of the ailidavit, and especially because the declaration omtained no averment that the criminal proceedings complained of were determin;:!. Fiam- titf replied that, as defendant was about to leave the country, he was forced to take his action before the determinatiim of the charge — Held, that the capias was properly issued ; and, as the criminal proceedings had since ended, plaintiff's motion to amend the declaration to that effect was granted. Fraser v. Gerrie, 2 R. C. 477, S. C. 1872. 88. On the 5th December, the appellant was arrested on a capias issued on the 2nd, and returnable on the 14th of the same month. Finding that a sufficient delay for the return was not allowed, the plaintiff took out an alias writ, returnable later — Htld, on an exception to the form, that the proceeding was valid and the judgment a quo was confirmed. RicJiard v. Wwtele, I Legal News, 32, Q. B. 1877. 80. Where the defendant, having been arrested on a capias, pleaded that the issue of the writ had not been demanded in the affidavit — Hdil, that the fiat was all that was necessary for that purpose. Doutre y. Mcainnis, 5 L. 0. J. 158, S. C. 1861. 90. The affidavit for a capias may be sworn before the deputy pro- thonotary. TheMvisie Iron Co. ,k Olsen, 18 L. C. J. 2l), Q. B. 1874. 91. An affidavit for capias is sufficient if it contain all the allegations required by the statute though \ a differ'^iat order, Gregory d- Imlarul, 9 L, C. J. 131, Q. B. 1865. 92. An affidavit to hold to bail though bad in part may be efficient for the remainder. Patterson et al, v. Burm, 3 Rev. do L6g. 347. 27 418 or CAPIAS AD RESPONDENDUM, ARTS. 798-709. 93. The amount may be stated in dollars, without any qualiiication •« to a particular currency. Hall v. Zernichon, 4 Q. L. R. 268, S. C. 1878. 04. It is no ground of petition to quash that the initials only of de- fendant's Christian names are given. Ih. 95. The fact that the day of the month or the year is expressed in Arabic figures in the jurat is not sufficient to quash the writ. Berry V. May, 13 L. C. R. 3, S. C. 1869. 96. Where a party has been arrested under a capias, and the arrest declared illegal, he must be completely and fully restored to his liberty before he can be arrested under a second capias, and consequently the service of a writ of capias < r the arrest of a party already in custody is illegal. Hamel ct uL v. C6U et al. 11 L. C, R. 479, S. C. 1861. 97. Where the affidavit on which a capias issued disappears frcjni the recoi'd, the capias cannot be maintained, though the contestAt.on is manifestly \inf<^unded. Hatte v. CurHe d: M cDonald tfc Gordon et al. 1 Legal News. 53, S. C. 1877 ; '2'2 L. C. J. 34. 98. It is not necessary that deponent should give the name of tlic person who iaformed him that the defendant was secreting or about to secrete, nor the special reasons which lead him to believe that the facts are true. lb. 99. In an affidavit for capias where the creditor's name was written " Justius " instead of " J outra.a— Held, to be good. Joutras tt D\(n- Ion, 7 Jj.C. R. 420, S. C. 1857. See art. 834 infra. 799. The writ may also be obtained if the affidavit esta- blishes, besides the debt, that the defendant is a trader, that he is notoriously insolvent, that he has refused to arrange with his creditors, or to make an assig iment of his property to them or for their benefit, and that he still canies on hjh trade. C. S. L. C. c 83, s. 47 ; c. 87, s. 9. ^ 1. In an affidavit for a writ of capias it is necessary to allege the insolvency of the debtor, and that such debtor being insolvent refuses to make an assignment of his estate for the benefit of his creditors Hamel et al. v. Cofe et al., 11 L. C. R. 446, S. C. 1861. 2. An affidavit to hold to bail which does not disclose any ground for the allcga^' r; +hat the aefendant is a trader, and that he is noto- riously insolvent and has refused to compromise or arrange with Ls OF THE ISSUING OF THE CAPIAS, ARTS. 709-801. 419 saticm ,8. C. of m. .ntestkt.on ordon et ai lame of the or about to liattheiacts was written dras ugh it be alleged, as require , that he had secreted his estate, debts and effeets with intent to defraud, and the capias issued in virtue of such affidavit will be quashed on motion. Warren et al. v. Morgan, 9 L. C. R. 306, Q. B. 1859, 3. Where both parties are domiciled in Upper Canada, the affidavit must also declare that the defendant does not possess within the limits of Upper Canada any immoveable property out of which the plain- tiff can reasonably expect to'be paid. (■. S. L. C. c, 87, s. 2 ; 3 L. 0. R. 100. 800. The writ of capias may likewise be obtained by any creditor having an hypothecary or privileged claim ii oon an immoveable, upon an affidavit establishing that hi; claim exceeds forty dollars, and that the defendant, whethe • he is the original hypothecary debtor or simpl}- the holder if the property, is, with the intent of defrauding the plaintiff, damaging, deteriorating or diminishing the value of the im- moveable, or is about to do so himself or by others, so as to prevent the creditor from recovering the whole or any part of his claim, to the amount of forty dollars, us provided by chapter 47 of the Consolidated Statutes for L,","er Canada. G S. L. a c. 43, 8. 3. 1. Where the defendant had been arrested on a capias under C. S. L. C. cap 47, on the ground that he was wilfully damaging and de- teriorating a certain immoveable property of v.liioh the plaintiff was \\ hypothecary creditor, but the allegation that he was doing so wilfully was omitted in the affidavit — Held, that it was not actually necessary to allege in the affidavit that it was so done. Doutre v. McGinnis, 5 L. C. J. 168, S. C. 1861. 2. It is not necessary in the affidavit to ask for the issue of the writ, the fiat being all that is necessary for that purpose. lb. 801. [If the demand be founded upon a claim for unli- quidated damages, the writ of capias cannot issue without a judge's order, after examining into the suflBciency of the affidavit; and the affidavit in such case must state the nature and, moreover, amount of the damages sought, and 420 OF CAPIAS AD RESPONDENDUM, ARTS. 801-803. the facts which give rise to then:, and the judge may, in his discretion, either grant or refuse the capias, and may fix the amount of the bail upon giving which the defendant may be released.] 1. A capias sued out without a judge's order may be set aside on motion and the defendant discharged from custody on filing a common appearance. Dea Barres v. Chemicr, 3 Rev. de Leg. 307, K. B. 1820 ; Ooydte v. McDotuihi ^ R. L. 638, S. C. R. 1873- 2. A writ to hold to bail for unliquidated dan ages may be had, but not for a penalty. Patterson et al. v. Fanrin, 3 Rev. de ] .6g. 348, K. B. 1811. 809. The writ of capias may be joined with the writ of summons, or may he issued afterwards as an incident in the cause. In the latter case it must be accompanied with a summons for a fixed day to shew cause why the writ .should not be declared valid and joined with the }>riucipal de- mand. The writ may also issue after judgment has been obtained for the recovery of the debt. 1. A capias to hold to bail may be had pendente lite upon the usu:il affidavit that the defendant is about to leave the Province. Collins v. Hunter, 3 Rev. de L^g. 349. 2. Where the capias was taken against the defendant during the action, and motion was made to quash on the ground that it did not appear by the affidavit that any legal or sufficient cause of uebt existed to justify the issuing of the capias, or in other words that there was no declaration. — Hild, that a reference to the declaration tiled with tlie original action was sufficient. Malo v. Labelle, 2 L. C. J. Hi4, S. C. 1868. 3. A capias founded on a debt for which judgment has been ren- dered is good and that oven where the capias is made the commtiice- ment uf a imvr action, it being perfectly indifl'erent to defendant whe- ther he was arrested under the old action or under a new one. Ferry v. Milne. 8 L. C. J. 222, S. 0. 1864. 80S. The amount for which the writ of capias has i-i- sued and the name of the person who made the affidavit must be endorsed upon the writ. 10-11 Geo. IV. c. 2(i. 2. .3. a I 1 an J l| I'VOWl 84 vince Ihid] 1. cap. 8| 2_ '("ndar OF THK ISSUING OF THE CAPIAS, AKTS. 804-80B. 421 his the may ide on mnion 1820 ■, ad, but i, K. B. writ of ,t in the [ with a t should ■ipal dc- obtained the usual I during the it, did not vebt existed jhero was uo 3d with the 104, S. C. Las been reu- Je comnitnce- Ifeudunt whe- one. ■f't'-'''J Ipias has is- jho affidavit \V c. 20. 804. It i.s not necessary that the declaration or state- ment of the demand should be served upon the defendant at the time of his arrest, but it suffices to leave a copy of it either with him, or at the office of the prothonotary, within the [three days which follow the .service.] C. S. L. a c. 83, s. 57. 1. Where a question arose as to the service of the declaration on the defendant — Held, that a service made by filing a copy at the pro- thonotary's office was sufficient, provided a certificate of such service was written by that officer on the original. Oaudette v. Laliberti, 1 R. L. 747, S. C. 1869. 2. In an action commenced by capias also, which was served on the thi'-ty-first of May, and returnable on the twelfth of June — Held, that a service of the declaration by depositing it in the prothonotary's office on the seventh June was a legal service of the declaration on defendatit, and that a delay of ten days between the service and return of decliinition was not required. Raphael v. McDonald, 10 L. C. J. 19, S. C. 186.5. See art. 850 infra. 803. Saving the exceptions contained in articles 2272 and 2273 \n the Civil Code, a writ of capias cannot issue : 1. Against priests or ministers of any religious denomin- tion whatev^er ; 2. Agai:i,st septuagenarians; 3. Against females. a S. L. a c. 87, s. 7, § 1. 1 A minor carrying on trade may legally bind himself fur his board ai)i lodging, isid in such case may be arrested under a writ of capias. Ircnvuiny v. Yule & Wales, 12 L.'c. R. 292, S. C. 1862. 806. It cannot issue for any debt created out of the Pro- vince of Canada, nor for any debt under forty dollars. Ibid., 8. 2. 1. Barbadoes is a foreign country within t' e meaning of C. S. L. 0. cap. 87, sec. 8. Trobridge et nl. d- Moranye, 6 L. C J. 312, S. C. 2. England must be considered to be a foreign country, and a de- fendant arrested in Lower Canada for a deVit contracted there, and for tr :t ■-i:- 422 OF CAPIAS AD RESPONDENDUM, ARTS. 80G-809. which defendant' had accepted a bill of exchange drawn upon him at hia other place of business at Toronto, but made payable at a bank in England, must be discharged and the capias quashed, notwithstanding the disclosure of evident fraud. Bottomley tfc Lutnley, 13 L. C. R, 227, S. C. & 15 L. C. R. 213, Q. B. 1863. See Oatilt et aX. v. Robertson, supra, No. 85, under art, 798. 807. The affidavit required in the above articles mav be made by one person only, or by several persons swearing each to a portion of the necessary facts, and it may be received and sworn to before a judge of the Superior Court, or a com- missioner of the Superior Court, or by the prothonotary who certifies the writ of capias. C. S. L. C. c. 83, 8. G;c. 87, 8. 1. 1 . An affidavit for capias may be sworn before a deputy prothono- tary. The Moisie Iron Company et al. d- Olsen, 18 L. C. J. 29, Q. B. 1874. 808. The Superior Court alone has jurisdiction in matters of capias. 12 V. c. 38, 88. 32, 47 ; C. S. L. C c. 78, s. 5. 1. In a case of capias in an action for less than £15 — RelO, that the quashing of the writ did not deprive the Superior Court of jurisdiction over such action with regard to subsequent proceeding thereoiA. Elwes V. Francisco, 1 L. C. J. 188, S. C. 1857. 2. But in an'^ '^^her case in which a capias ha(T Issued for a claim of $68, but had not been executed- -Held, that the Superior Court had no further jurisdiction in the mattei Tessier v. Legault, 5 R. L. 472, S. C. 1874. 3. Who!*, the ;:>iu,intift' discontinues proceedings on the capias, he can- not proceed in the Superior Court to reco\'er the 867 which rio claims. Tnrcotte v. Eejnier, 1 Legal IVcws, 35.1, S. ";. 1878 ; 22 L. C. J. 132. 809. When the capias Is issued by the prothonotary of the Superior Court it is addressed to the sheriff of the dis- trict where it is to be executed. 12 V., c. 33, .s. 47 , C. S. L. a c. 83, .s. 3, § 2. See 33 Vict, c. 17. .s\ 1 (Qm.) under A.rt. 48 8iipra. 1. A writ of attachment in revendication addressed to " one of the bailiffs of our Superior Court for the district of," etc., must be execute,*' OF THE ISSUING OF THE CAPIAS, ARTS. 809-813. 423 im ftt nkin ndinR .227, ay be :r each ceived 1 com- ry who ti7, 8. 1. rothono- J9, Q. B. matters s. 5. , that the risdiction ov.. Elwes a claim of jurthadno L. 472, S. [iaa, heoau- 110 claims. J. 132. Inotary of \i the dis- C. »•>'. L. by one of such bailiifa, and the writ may not be served by a bailifi and the declaration by a sheriff. Braimnl r. Turgeon, 5 R. L. 123, S. 0. 1873. 810. It may be issued by a clerk of the Circuit Court, in which case it is addressed to the sheriff or to any bailiff of the district in which it is to be executed. 12 V. c. G3 ; a S. L. C. c. 83, 8. 6. 811. The clerk of the Circuit Court acts in such case as an officer of the Superior Court, and the writ of capias must be wox'ded throughout as if it was issued by the prothono- tary. — Ibid. . 1. A writ of capias signed " F. H. Marchand. Clerk of the Circuit Court," attested with the seal of the Circuit Court, St. Johns, return- able into the Superior Court, and headed in the mar^^in " in the Sui)erior Court," is irregular, and such writ is not a \vTit in the Superior Court as required by the Judicature Act. Hitchcuck v. Meigs, 6 L. C. R., 175, S. C. 1856. 813. In all cases in which a writ of capias may issue, a warrant of arrest may be granted by a commissioner of the Superior Court and be addressed by him either to the sheriff or a bailiff or any other peace officer in his vicinity. G. >S, L. a. c. 83, s. 53. 813. Such warrant is in the name of the commissioner who grants it : it orders the arrest of the p" son therein designated and his delivery over to the gaoler ot the district, who is commanded to keep him in his custody during forty- eight hours, and no longer, unless before the expirdtion of that time the plaintiff has obtained and caused to be executed against such defendant a writ of capias in tlie ordinary course. 9 Geo. IV., s. 27. nra. one of the be ijxecutr''' 424 OF CAPIAS AD RESPONDENDUM, ART. 818. ln> WUl m Form No. 49. In connection with articles 812, 813. A^avlt for Warrant of Arrest. '.'.. I :■■■ A. B., of &c., being duly swora, doth depose and say, that C. D., of is personally indebted to in a sum exceeding forty dollars, to wit : in the sum of That this deponent is credibly informed, hath eveiy reason to believe, and doth verily and in his conscience believe» that the said is immediately about to leave the Province of Canada (allege specially the reasons ivhich lead to the belief that the defendant is about to leave the Province of Canada), whereby the said , without the beuelit of a warrant of attachment against the body of the said , may be deprived of remedy against the said : and this deponent hath Sworn before me, this day of ^9 if. Form No. 43. In connection with articles 812, 813. Warrant to arrest the person. Lower Canada, district of A. B., Esquire, Commissioner of the Superior Court in the district of To and to the keeper of the common gaol of the said district, greeting : I command you, that you take of in the county of be found in in the district of if he and him, with all due diligence, OF THE ISSUING OF THE CAPIAS, ARTS. 813-815. 425 »se and of f reason believe I eave the dch Uo.d Province le beuetit the said rainst the Rourt in the ion oraol of convey to the common gaol of the said district, and deliver to the keeper "thereof, togethei- with this warrant; and I do hereby command you, the .said keeper, to receive the said and him safely keep for the sf>ace of forty-eight houra, and no longer, unless, before the expiration of that time, a writ of capias ad respondemlum be duly served upon him, to compel him to be and appear personally in the Sup.-rior Court for the said district on the day of the return of such writ, to answer of of a certain debt, in- terest and costs, amounting to the sum of * _ , Given under my hand and .seal, this day of in the year of Her present Majesty. 1. A defendant was committed by a commissioner under a warrant which empowered the gaolor to detain him for 48 hours and no longer, unless before the expiration of that time a writ of capias be served on him. No writ of capias was served within that time, but the defend- ant was, nevertheless, detained two days longer, and then a capias was served. Held, that the detention of defendant after the 48 hours had elapsed was illegal, and that the arrest under the capias while defend- ant was detained was void. Hittgaton v. McKenty, 12 L. C. J. 25, 4 L. C. L J. 42, S. C. 1867. 814. The debtor cannot be detained in prison in virtue of such warrant any longer than forty-eight hours. Ibid, s. 54. 8 1«5. The commissioner granting such warrant must, with- out delay, transmit a duplicate of it, together with the ori- ginal affidavit upon which it was granted and a certificate of his proceedings, to the prothonotary of the Superior Court of the district, who must file the same and keep them as part of the record in the case. Ibid. s. 65. m if he le diligence, OP CA' lAS AD RESPONDENDUM, ARTS, ?T»-819. > SECTION II. OF THK EXKf.UTION OF WRITS < (•' CAPIAS. 14 HIO, If tlu* writ of capia.s i.s addressed to a bailitt", the Imilirt' who is charged with it arrests the defendant and do- livers hitn over, together with the writ, to the sheriH", who thereupon becona's responsible. C. S. L. C, c. 83, f». G, ||J 2. H 1 7. If the writ of capias is addressed to the sheriff ho i.s tlien bound to execute it or to cause it to be executed by his offic<'rs. 818. The .sheritfis bound to keep the defendant in tlio C'immon gaol of the district, until the latt:( 1(1. 12. capias, noon fo ti» be SI 13. coniple<| proof it OF THE CONTESTATION OF CAPIAS, ART. 819. 427 litf, the ami (le- i-iti", who 0, ii 2. •liH' ho is cuted by nt in tho s security 87,8. 1. le IA.S. toajmlse in his (lis- mprisoneil, affidavit nsufficieiit. 8. ho aufficiency Hej/uewKHV. not a subject de L^g. 195. idavit to hold Leg. 348, K. 4. In case of tuy irregularity in iuuing a capias, a motion to ilia- charge the defendant from the sheriff's custody fur want of a sufficient atlidavit to hold to bail, and not an exception to the form, is the mode uf taking advantage of snch irregularity. Barney v. Harris, S. K. 62, K. B. 1811. ugularities such a» nsn will bo rejected jhiMjj a capiaM, imlitiun to that effect. 5. A petitiim to quash n capias cannot all<' would found an excuption to the form, and un demurrer. Lemny v. Lfiiuiy, 3 R. L. 'i'^. 0. V judge in chambers cannm render ju bill may order the release of the defendant .. //i»/((M et al. V. Ourdon, 'J L. C. J. 161, S. C 1858 ; Eintaanuel vt al., tliiijenn <£• Huyens, 6 R. L. 209, S. C. 1874 ; The Canadian Bank of ' ommerce v. Browne et al. 6 R. L. 20, S. C. 1874. 7. Petition was brought for the release of the defendant after issue joined — Held, that there was no presumption of waiver of right to pe- tition for release arising from delay or from pleading to the action. Chapman v. Bhnnerhaaaet, 2 L. C. J. 71, S. C. 1867. 8. Defendant, after fil: i^' a ploa to the merits, may disprove the al- legations of the affidavit upon which the capias issued. Perry v. Milne, 8 L. C. J. 222, S. C. 18G4. 1). A defendant may apply by petition in term for the quashing of a writ of capias, and such proceeding is more regular under the Code than to apply by motion. H^orthen v. Holt, 15 L. C. J. 161, S. C. 1871. 10. When the writ is issued on the order of the prothoiKjtary, acting in the absence of the judge, on a claim for unliquidated damagtis, a petition concluding with a general prayer to quash the writ and to dis- charge the defendant includes an application to revise the order uf the prothonotary. Ibid. 11. Where to an action of capias the defendant by petition after judgment set up that the allegations of the affidavit on which the capias issued were false, and prayed for his release — Held, that exception to the affidavit coidd not be taken after final judgment rendered. Hwjan at (tl. V. Gordon, 2 L. C. J. 162, S. C. 1858. 12. A notice on a petition to be released from custody under a capias, served on Saturday between four and five o'clock in the after- noon for presentation on Monday at ten o'clock in the forenoon, was held to be sufficient. Trobridge et al. v. Morawje, 6 L. C. J. 312, S. C. 1862. 13. Affidavits to procure revendication, capias or attachment are completely exhausted by the issue of the writ, and are of no value as proof in the case. Crehen v. Hagerty, 3 Q. L. R. 322, C. C. 1877. ^ ^ ^^^^-< IMAGE EVALUATION TEST TARGET (MT-3) A h '< - £? ' 428 OF CAPIAS AD RESPONDENDUM, ARTS. 820-«22. 898. In order to decide upon this incidental proceeding the court or judge may order the immediate return of the said writ of capias and of the proceedings had upon it, al- though the day fixed for the return should not yet be ar- rived. 1 L. C. R. 143. 1. A defendant need not present a petition to have a writ of capias returned immediately, but a judge may order such return upon simple motion to that effect. Hie Moiaic Iron Co. v. Olaen et al. 17 L. G. J. 322, S. C. 1873. 891. If the contestation is merely as to the sufficiency of the allegations of the affidavit, the judge or the court may dispose of it after hearing the parties. But if the contestation is founded upon the falsity of the Allegations, issue must be joined upon the petition of the defendant, in the ordinary course and independently of the contestation upon the principal demand, unless the exigibi- lity of the debt depends upon the truth of the allegations of the affidavit, in which case the writ may be contested toge- ther with the merits of the case. 10 L. C. R. 241. 1. An affidavit to hold to bail cannot be contradicted by counter affidavits. Lavorence v. Hinckley, 3 Rev. de Leg. 348. 2. In an attachment before judgment where an exception to the form and, subsequently, a petition were filed against the validity of the seizure in the manner provided for the contestation of writs of capias — Held, that the enquite on the petition might be proceeded with, independent of the contestation on the exception to the form. The Quebec Bank d- Steers et al d- Seymour et al. 12 L. C. J. 227, S.C. 1868. 3. Under art. 821 C. C. P. the contestation of an attachment before judgment should be made with the contestation upon the merits, and not on petition when the debt is not yet due or exigible. Metreaae \. Briire d: OuUbault, 15 L. C. J. 259, S. C. 1871. 4. The pretensions of a defendant, who, after arrest, leaves the country and refuses to appear for examination, will not be favourably regarded by the court. S. 0. 1877. The MoUon's Bank v. Campbell, 21 L. C. J. 280, 833. A defendant whose application to be discharged is rejected may appeal from the decision.. 3 L. C. J. 292. 22. OF DISCHARGE UPON BAIL, ARTS. 922-824. 429 jroceeding um of the ipon it, al- yet be ar- rrit of capias , upon simple [. 17 L. C. J. ufficiency of e court may alsity ofthe bition of the iently of the the exigibi- EiUegations of ntested toge- l. ited by counter weption to the the validity of Ition of writs of proceeded with, the form. The 227,8.0.1868. tachment before the meiits, and [We. Metresaev. rest, leaves the lot be favourably I, 21 L. C.J. 280, discharged is \C. J. 292. 1. Where a defendant under capias petitioned to be released, and the petition was rejected — Hekl, that he had a right to appeal from such judgment de piano, and therefore an application by him to be per- mitted to appeal was dismissed on that ground. Blaeketuee & SharpUy, 3 L. C. J. 292, 1869 ; Qugy ■'■■ 484 OF CAPIAS AD UE8POKD£NDUM> ARTS. 828-831. 88 by law provided, or in default thereof, will pay to the said {name here the Plaintif,) the debt for which he, the said (name here the Defendant,) has been arrested as afore- said, with interest and costs ; or do on {state here the retwn day of the Writ,) or at any time previously thereto, or within eight days thereafter, put in special bail, as by law provided, to the action wherein the said Writ has been sued out as aforesaid, then this obligation shall be void and of no force, but otherwise shall stand in full force, vigour and effect. Signed, sealed and delivered in the presence of 1. Where a capias has been declared good and valid, and the de- fendant in appeal gives security for the costs only, and files a declara- tion that he does not object to the execution of the judgment, the appeal does not suspend proceedings against the bail on their bond to the sheriff. Lajoie v. Mullin et d., 21 L. C. J. 69, Q. B. 1876 ; 9 R. L. 48. 830. The sheriff in such case is responsible only for the sufficiency of the sureties at the time when bail was given. Ih, 830. He may free himself by offering an assignment of the bail-bond he has taken. ' This assignment may be effected by simply endorsing hi.s name upon the bail-bond. Ihid. Asselin v. Mason, 9th 2VWemier, 1848. , - ; < 831. The sureties may at any time arrest the defendant and surrender him into the hands of the sheriff*, and thus discharge themselves from their bond. C. S. L. C. c. 87, a. 5. 1. Where the sureties of a party, originally arrested under capias, had caused him to be imprisoned under a writ of contrainte par cofj)s, issued at their instance, in order that he should undergo the imprison- ment imposed as a punishment by C. S. L. C. cap. 87, sec. 12, ss. 2, the sureties cannot for that reason alone claim that their bail-bond should be cancelled and discharged. Macfarkme v. Lynch, 10 L. C. J. 26, & 1 L. C. L. J. 99, S. C. 1865. OF ATTACHMENT BEFORE JUDGMENT, ARTS. 832-834. 435 to the he, the i afore- returfi i-eto, or by law }en sued a and of rouv and and the de- )B R declarft- dgment, the -leir bond to 1876 -, 9 R. nly for the ,s given, ii* lignnient of 8S9. [The sheriff however, is not bound to receive the defendant, without a written requisition to that effect signed by the sureties or by one of them, or by their authorized attorney. The requisition must contain the title of the court, the names of the parties to the suit, and of the sureties, and must require the sheriff to take the debtor into his custody ; and it is the duty of the sheriff to give the sureties a certi- ficate of such surrender.] 833. [If the sureties apprehend resistance, then upon an affidavit of one of them, alleging their suretyship, sworn to before a judge, the prothonotary, a commissioner of the Superior Court, or a justice of the peace of the district in which the debtor then is,, and upon a requisition to that effect written upon the back of the affidavit, any bailiff or constable may arrest the debtor with such forcible assist- ance as may be necessary, and hand him over to the sheriff.] CHAPTER SECOND. OF ATTACHMENT BEFORE JUDGMENT. i' !, le defendant iff, and thus C. c. 87, s. 5. , V ^ SECTION I. OF SIMPLE ATTACHMENT. v 834. A creditor has a right, before obtaining judgment, to attach the goods and effects of his debtor : 1. In the case of the dernier Squipeur ; 2. In all cases where, as plaintiff, he produces an affidavit establishing : that the defendant is personally indebted to him in a sum exceeding five dollars, that the defendant I: t J 436 OF ATTACHMENT BEFORE JUDGMENT, ART. 834. absconds or is about immediately to leave the province, or is secreting his property, with the intent to defraud his creditors and the plaintiff in particular; or that the de- fendant is a trader ; that he is notoriously insolvent ; that he has refused to arrange with his creditors or to make an assignment of his property to them or for their benefit, and that he still carries on his business ; and in either case^ that the deponent verily believes that without the benefit of the attachment the plaintifi" will lose his debt or sustain damage. C. 8. L. a. c. 83, S8. 46-7, 68 & 175; Poth. 180-1 ; C. P. L. 240. 36 Vict., 0.6. (^w.): 18. Article 834 is hereby amended by inserting therein, immedi- ately after the word " secreting," the words "or is about to secrete," and by substituting in place of the words " creditors and the plainti^' the words " creditors or the plaintiff." 1 . The (krnief iquipeur is entitled to a writ of attachment before judgment for the amount of his claim on the vessel subject to it, even when several months have elapsed since the debt was incurred, and the proprietor has been in possession of his vessel. Oirard v. iSt. iouM, 6 R. L. 45, C. C. 1874. 2. Where the affidavit for an attachment before judgment stated that the sum of money due was for the price of immoveable pro- perty which the plaintiff promised to sell and the defendant promised to purchase — Held, to be sufficient. Shaw v. McConnell, 4 L. C. R. 49, S. C. 1854. 3. The omission to state in the affidavit that the defendant is pet- sonally indebted to the plaintiffs and, to state also the cause of debt, and that the defendant hath or had an intent to defraud his creditors and the plaintiff in particular, is fatal, and the attachment by garnish- ment in such case will be quashed on motion. Lynch v. EUict et a{., 12 L. C. J. 209, S. C. R.1867. 4. An affidavit in an action for money paid out and expended, and lent and advanced by the plaintiff to the defendant, and at his request, is bad for not distinctly stating that the money " paid, laid out or ex- pended " was so paid, &c. , to the use of the defendant and at his re- quest. Maguire v. Liiik, 16 L. C. B. 372, S. 0. 1866. 5. And where such affidavit embraces several causes of action and one of them is defectively stated, it vitiates the whole affidavit. lb. OF SIMPLE ATTACHMENT, ART. 834. 437 (vince, ail his he de- i; that Lake an fit, and se, that t of the damage. X,.240. 1, immedi- to secret*," eplwntiff' oent before t to it, even icurred, and ^irard v. ^^ jment stated iveable pro- t promiBed 4 L. C. B- Ldant is l>e'- lause of debt, ]his creditors it by garnisb- Jtticeetol.,12 Upended, and U his request, faid out or ex- and at bis re- of action and idavit. ^^• 8. An attaohment before judgment was founded upon an affltlavit letting forth that the defendant was indebted to the plaintiff in a sunt of money mentioned therein " for the price and value of goods, waree and merchandise, by the said plaintiff then and there sold and delivered as will appear by the account thereof to be filed in this cause " — Held, on a motion to quash, that the affidavit must state the cauie of in debtednesa with sufficient accuracy to enable the court to judge whether the defendant is indebted to the plai.r.tiff or not, and if any fact material to such judgment be omitted, its absence will not be cured by the assertion by the creditor of the indebtedness of the debtor. Beau- field et al. V. IVheeler, 5 L. C. J. 44, 8. C. 1860. 7. Where an affidavit fur an attachment before judgment, founded on a claim for work done, omitted to allege that the work was done at the request of the defendant, but alleged an acknowledgment of the debt in the shape of a promissory note — Held, to be sufficient. Mc- Namara v. Meagher, 6 L. C. J. 49, 8. 0. 1861. 8. On a contestation arising out of the seizure of a quantity of timber— ^eM, that raftsmen have no privilege or right of retention as to the raft upon the timber of which they have bean employed. Du- gmy v. Flenrant dc BenrwU ttal., 1 Q. L. R. 87, 8. C. 1872. ■>: 9. Where a creditor was notified by 'his debtor that she was about to leave the Province for a short time, and the creditor consented there- to, but just as she was on the point of departure placed an attachment before judgment on her effects at the railway station. — Htld, that the attachment would not lie as there was no intent to defraud. Riopel v. Arjnn, 4 R. L. 270, 0. C. 1872. 10. An affidavit for an arrH simple must state the fact " tY '\t the de- fendant is about to secrete his effects " absolutely, or " that the plain- tiff is informed and hath good reason to believe that the plaintiff is about to secrete his effects." Lamoureux v. Kimmery, 3 Rev. de Jj6g. 307, K. B. 1819. 11. An affidavit made before the passing of Q. 35 Vict. c. 6, sec. 18, to the effect merely that the defendant is immediately about to secrete his property is insufficient. Oriffith & McOovem, 16 L. C. J. 336, S. C. R. 1872. 12. An affidavit affirming, after setting out the indebtedness of the defendant, " that the deponent is credibly informed, hath every reason to believe and doth verily and in his conscience believe that the defen- dant is secreting," &c., with the grounds of belief, is sufficient to ob- tain a warrant of attachment before judgment. Gement v. Moore, 13 L C. J. 163, 8. C. 1869. ■ii I 438 OF ATTACHMENT BEFORE JUDOMENT, ART. 834. 'i*. mW^^ 13. Nor ia the omiuion of the word " veriljr," in the ooncluaion of the aflidAvit, " doth verily belieTe that, without a warrant of attach- ment," Ac, fatal. lb. 14. And the deponunt should state iixiciKlly hit reasons for believ- ing that the debtor is secreting or making away with his goods, with the intention of defrauding his creditors, but need not statu from whom he received the information. litll v. VujmanH d: HuulMim, r* R. L. 697, 8. C. 1874. 16. Au attachment before judgment will be quashed and set asidv upon motion if the affidavit does not aver that " the defendant is se- creting or is about to secrete his estate, debts and effects.'' McNviw,, V. McAiulrew, 18 L. C. J. 70, S. 0. 1873. 16. The article of the Code of Procedure which provides for the issuing of writs of attachment before judgment, has not in any way altered, with respect to the affidavit required for sucli writs, tlio law as previously in force, and in such affidavit it is sufflciont to state that the defendant is about to leave Lower Canada, or that he is about to leave the Province with intent to defraud his creditors, without stating that he is about to leave the heretofore Province of Lower Canada with such intent. BeauUen v. LitMater, 17 L. C. R. 400, C. C. 1807, 17. The deponent must follow the words of the statute and swear " that he is credibly informed, hath every reason to believe and doth verily and in his conscience believe that the defendant is secreting his estate, and that without the benefit of a writ of aaisie unit he will lose his debt, &c. Boiulrot v. Locke et al. 13 L. C. R., 409 C. C. ; Jubiii d Symmoita, 14 L. C. R. 14, C. C. 1803. 18. If the deponent swears " that he is credibly informed and verily in his conscience believes that the defendant is immediately about to secrete his estate, and that without the benefit of a writ of attachment he may lose his debt or sustain damage," it is sufficient. Shaw v. Me- Connell, 4 L. C. R. 49, S. C. 1854. 19. An affidavit for a writ of attachment before judgment in which it is alleged " that the deponent is credibly informed, has every reasnn to believe and doth verily in his conscience believe, that the defendant has secreted and is about to secrete his estate, debts and effects witli intent, &c.," is sufficient. Laing et al. v. Bresler, 5 L. C. R. 195, S. C. 1856. 20. An affidavit for attachment before judgment in which it is said " that the deponent is credibly informed, hath every reason to believe and doth verily and in his conscience believe, that the defendant is im- mediately about to secrete his estate, debts and effects with intent to or SIMPLE ATTAf'HMEST, ART. 834. ihiiion of ,( ftttMh- fi.r believ- KHlt, with itato from d lei Miilc idant i» "e- de» for t^6 , in any way it», the law ont to state ,t he is about ;(.rB, without jower Canada J, C. C. 1807. ite and Bwear ieve and doth I secreting his et he will lose . C . ; Jvbin d i,ed and verily ately ftt)'J"* *" ]of attachment Shaw v. Me- jiuient in which us every reason J the defendant Ind etfects with ,R. 196, S.C. jrhich it is saiil lason to believe defendant is im- , with intent to .lefraud," is sufficient. ll'tirtfU «>( ,d. v. FrUe, 5 L. 0. R. 214, 8. 0. ( Uir, 5 L C. R. 386, 8. 0. 1866. 21. Where the words "is credibly informed "ami " in his consoionoe " were omitted, the affidavit was held to ho insufficient. Haile v. NoUon ,(,il. 5L.C. R. 210,8.0. 1856. '2'2. Where the words " hath every reason " and " in his oonsoienoe " were omitted, the atlidavit was held t<> bo insufficient. Mj, 6 L. C. R. 1'61, 8. C. 1856. 23. Where the affidavit alle'.;ud that " without the bonotit of a writ, \'0., the plaintitTs may lose their debt an(ment. Ferres v, Rnthnrford etnl. tt Th4 Montreal mul Champlmn RaUwu\j Campaivj, 9 L. C. J. 102, S.C, 1804. 27. On a motion to quash a writ of attachment on the grotind that the allegation in the affidavit was " that without the benefit of such a writ the plaintiffs may lose their said debt " — Hell, that the use of the word loill was unnecessary, and that the affidavit as it stood was suffi- cient. Slutrplea et al. v. Rasa, 17 L. C. R. 39, 8. C. 1807. 28. Held, that where the affidavit for such attachment concluded with the averment in the disjunctive that " the plaintiff without the benefit of a writ of attachment would lose his debt or sustain damage " it was not bad for uncertainty. Milne v. Rosn et al. 4 L. C J. 3, S. 29. An affidavit for attachment before judgment in which the word "cder" instead of the word '^receler" was used and the latter word erased in the body of the affidavit and the former put in the margin, without reference thereto in the jurat, was held t<) bo good. Bonr- (w V. Haii's, 8 L. C. R. 135, S. C. 1858. 30. The omission to state in the affidavit tha the defendant " is se- creting " his property, or (in the case of a trader alleged to be insol- vent), " that he still carries on his business " is f.atal. Oshora et a', v. Xittch ,(r NUsch, 21 L. C. J. 252, 1 Legal News, 213, S. C. 440 OF ATTACHMENT BEFORE JUDGMENT, ART. 834. 31. The Court will not quash a writ of attachment because in the jurat of the affidavit upon which it issues, subscribed by the protho- notary of the court (the office, being held by two persons), the oath is stated to have been taken before me ; " nor will the affidavit be held bad by reason of erasures not mentioned in the jurat of immaterial word.' words without which the affidavit is otherwise complete. The City r J: v. Hunter d Maitla^id, 2 Rev. de L^g. 170, Q. B. 1847. 32. Held, confirming judgment of court below, that the omission of the words " before us " in an affidavit for an attachment against goods, sworn to before the prothonotaries of Montreal, is a fat^l 'oregularity, and a writ of attachment before judgment issued upon such, affidavit will be quashed on motion. Heugh et al. k of the Cir- U receive the §40. The provisions contained in articles 810 anlSll concerning writs of capias, apply likewise to simple attach- ment. 841. The seizure of the goods of the defendant is effected in the same manner as upon the execution of a judgment. Pothier, Proc. 180-1. The sheriff or bailiff may make the seizure in another district if the debtor has conveyed his property there or has withdrawn there himself. 848. A warrant of attachment may also be issued, in the caseof Article 834, by any commissioner of the SuperiorCourt, addressed to the sheriff of the district where the wanant is to be executed, or to the bailiff or peace officer nearest to his residence, commanding him to seize and detain the effects of the debtor. C. S. L. C. c. 83, s. .53. 843. This warrant of attachment is in the name of the commissioner who issues it ; it orders^ the moveables and effects of the defendant to be attached, with the ordi- nary formalities of seizures, and that the}' be kept and detained for the period of twelve days from the seizure, and no lon- ger, unless before the expiration of such twelve days a writ of attachment, pursuant to the above provisions, issues from the proper court. Ibid. s. 54 & Form D. , {' Form No. 4t5. In connection with ai'ticles 842, 843. A^clavit to obtain Warrant of Attachraent. •, A. B., of being duly sworn, doth depose and say that C. D., of is indebted to ■ ; of in a sum exceeding forty* dollars, to \:\t : in the sum of * Five ? See French Version. • ' v^ •1 , ! 'Jt . 444 OF ATTACHMENT BEFORE JUDGMENT, ART. 843. That this deponent is credibly informed and hath every reason to believe, and doth veiily and in his conscience believe, that the said now about immediately to secrete estate, debt and effects and do abscond and do intend suddenly to depart from Lower Canada, with an intent to defraud the said and creditors. This deponent further saith, that he doth verily believe, that without the benefit of a warrant of attachment against the said the said will lose his debt and sustain damage, and hath |'<^ ; Sworn before me, at this / r,.,\ 1. Form number 45 of the Code of Procedure is sufficient to meet the requirements of art. 834 of said Code. DaUimore d: Brooke et kl 4k Brooke, 6 B. L. 657, Q. B. 1874. Form No. 46. In connection with article 843. Warrant of Attachment A. B. Esquire, Commissioner of the Superior Court in the district of TfSi greeting : I command you, at the instance of , to attach of and belonging to , if the same shall be found in the , to the value of and the said keep and detain in your charge and custody for the period of twelve days, from the date hereof, and no longer, unless before the expiration of twelve days, the said shall be seized by writ of attach- ment issuing from the Superior or Circuit Court (as the case may he) at at the suit of the said Given under my hand and seal, at this day of in the year of the reign of Her Majesty. J. th every onscience aediately OF SIMPLE ATTACHMENT, ARTS. 844-850. 445 part from ly believe, ent ill lose liis jient to meet J Brooke et hi Court in the ,to I if the same and your charge from the date lion of twelve Irit of attach- |rt(a8t?i6ca«e us day ter Majesty. 844. The effects so seized cannot be detained for a longer period than twelve days under such warrant of a commis- sioner. Ityid. 84ff. The commissioner who granted such warrant must, without delay, transmit a duplicate thereof, together with the original affidavit upon which the warrant was granted and a certificate of his proceedings, to the prothonotary, or clerk of the Circuit Court, who must file and keep the same as part of the record in the case. Ibid. a. 55. 846. When in the Superior Court the writ or the warrant is addressed to a bailiff or any other officer than the sheriff, such bailiff or other officer is bound to make a return of his proceedings to the sheriff, and to deliver to him the effects seized, in order that they may be disposed of by the court according to law. Ibid, a. 6, § 2. 847. The sheriff or bailiff may also demand in advance from the party suing out the writ or his attorney ad litem, such sum as may be deemed sufficient by the judge or the prothonotary of the Superior Court from which the writ issued, for the safe-keeping of the effects seized. Ibid. 8. 49. 848. The sheriff or bailiff may renew such demand as often as the sum so advanced is expended, by presenting a petition, of which notice has been given to the party seizing or his attorney ad litem ; and if the amount fixed by the judge or prothonotary is not paid within twenty-four hours, the seizure is discharged, and the sheriff or bailiff is exon- erated from any liability whatever. Ibid. 8. 49, § 2. 840. The writ of attachment must be returned with an inventory of the seizure, and a certificate of service both of the writ and of the declaration, in the same manner as upon a writ of capias. 8ruved. Smith v. Bounie, 3 Rev. de Ug. 304, K. B. 1800. 863. lu other respects the contestation is subject to the rules of ordinary procedure. 8641. If the plaintiff fails to contest the declaration of the ganiishee within eight days after the principal judg- ment, he is foreclosed from doing so, unless the delay is ex- tended by the court. dSth Rul" of P. ' 1. A contestation of the'gamiahee's declaration can only bo had after the expiration of the delay fixed by law, or the rules of practice, on sutiicient cause shewn. Lytich v. McLeunan et al. e returned l>«-fi>rt> thu dny of return. Lytuhv. Ellie*. 12 L. C. J. '.'(«•. 8m urtL 819 ftnd 864 antt. . rf .\' M CHAPTER THIRD. ' OF ATTACHMENT IN REVENDICA1 ION. 8ftft. Whoever has a right to revendicate a moveable may obtain a writ for the purpose of having it ntfacheil, upon production of an attidavit setting forth his right and du8crib- ing the moveable so as to identify it. * The right of attachment in revendicaLion may be exer- cised by the owner, the pledgee, the depositaiy, the usut'nic- tuaiy, the institute in substitutions and the substitute. Pofh. Proc. 182, Guy. Rep. Vo. Reaendication, iiVJ ; 0. P. L. 2(i'milar oase- Held, that the affidavit was not de rigueui: ^'iH• da" et(d v. Ferguson, 2 L. C. J. 101, S. 0. 1858. ^ KOO. OF ATTACHMENT IN REVENDICATloN, ART. Hiiii. 453 l«3 ( lay of iVieil, upon id (l«»cnb- ly be excv- he usvifnic- itutc. Poih. P. L. 2oy. ,nnot be -ried I. J. 98, s^- t^- issued by the [l had incurred become inaol- jcordingtoher uited Stivtes, rment of s"*-'^ [he at.tachuHUt 15, S. ^^^''• irh aHac'.t.i.ut 'oatm et «(.. v. Ldor under his lit. fJoJwrfsoH Ije rigi**'"'"' kSiu- A. On motion to ql an ox. it U no justification to say * is re I ;■■ 454 OF ATTACHMENT IN REVENDICATION, ART. 866. that he was seized dommage faitant on the defendant's soil and no more. ReUly T. ChaiulUr, 1 Rev. de Lig. 607, K. B. 1817. 15. Revendication will lie against a bailiff, who^ under an authority of a justice of the peace, holds in his hands goods of the plaintiff, if the cause of the detention be a matter over which the justice has no jurisdiction. Paca^td v. Begin, 1 Rev. de Lig. 607, K. B. 1820. 16. The plaintiff brought an action in revendication of an uncer- tain quantity of hops purchased by him, which were to be paid at a certain rate per pound on delivery, and which the seller refused to deliver — Held, that he had a right to a saUie conservatoire, but not to an attachment in revendication, as the sale had never been perfected. Kelly et al. v. Merville, 1 R. L. 194, S. C. R. 1869. 17. Where the defendant to an attachment of things in revendica- tion, pleaded that he had no interest in the articles in question, anifl had never claimed them or refused to deliver them to the plaintiff, the premises in which they were having been formerly occupied by the plaintiff and defendant as co-partners, and no proof was made of a demand and refusal to deliver, and the things were delivered to plain- tiff by an interlocutory order of the court — Held, confirming the judg- ment of the court below, that the action would be dismissed with costs. Herle r. to deliver the L the guardian, I that he has de- Igularly put in S. C. 1866. jle nature or the suit, the the proceeds Iprothonotary of a perishable Imight be autho- 1394, K.B. 1848. OF ATTACHMENT FOU RENT, ART. 873. 467 CHAPTER FOUUTH. ' OF ATTACHMENT FOR RENT. ,, , 873. The owner or lessor may cause the effects and fruits in or upon the house, premises or land leased and subject to his privilege, to be seized for the i*ent, farm dues or other sums payable in virtue of the lease. He may likewise follow and seize in recaption, even for amounts not yet payable, the moveables and effects which were in the house or premises leased, when they have been removed without his consent ; but he must do so within eight days after their removal. [An attachment in recaption must be served upon the new lessor, who must also be summoned to shew cause against its execution.] Poth, Proc. 182 ; LauHn v. Kelly, Montreal, 2oth April, 1849. 41 Vict. c. 12 (Que;; 1. Article 873 is amended, by adding at the end of the second para- graph thereof the following words : "but shall be subtracted from the sale, the moveables and effects mentioned in article 556." 1. A lessor has a right to follow the effects of his tenant when they have been removed from the premises subject to his privilege, and that as well for the rent due as for that to become due thereafter, Ayhoin et al. S QUlwan, 4 L. C. R. 360, Q. B. 1854. 2. A saisie-gagerie may be had on the lease of a farm. Hamilton v. Comtantineau,3Rey. de Leg. 305, K. B. 1812. 3. Where a lessor had obtained judgment under an attachment for rent against his lessee, and eight months afterwards, when the goods had been removed to the premises of another, seized under a writ of Fi. Fa. — Held, that the plaintiff had reserved to him a preferential claim to the prejudice of the second lessor, although the latter had not been notified of the seizure. Bonner v, Hamilton «t Johnson, 6 L. C. R. 42, S. C. 1856. 4. In an action commenced by sawie gagerie the declaration must be served either by depositing a copy with the clerk of the court within 458 OF ATTACHMENT FOR RENT, ARTS. 873-875. ff,/ eight days cfter the service of the writ, or it may be served on defen- dant, giving the usnal delay before return. Ward v. Cwinne, 9 L. C. J. 28, S. C. 1864. 5. As between landlord and tenant the saisie gagerit par droit de mite may be made after eight days from the removal of the goods from the leased premises. Serrurier v. Lagarde et al., 13 L. C. J. 262, C. C. 18G9. 4 6. Where the lessee held under a lease for two years, and removed his ^oods from the premises before the term had expired — Held, that the lessor had a right to a writ of attachment par voie ordinaire and also par droit de suite (although the writ do not indicate the premises to which they have been removed,) to secure his rent for the balance of the term. Rodier v. July, 4 L. C. J. 16, S. C. 1869. 8'34. The provisions contained in article 841 apply like- wise to attachments for rent or farm dues. 3 4. m ^fe H7S. Effects attached for rent or for farm dues cannot, without the consent of the plaintiff, be left in the custody of the defendant, unless he gives sureties to the satisfaction of the sheriff or bailiff for the production ot the effects, and such sureties incur the same obligations and are liable to the sam^ penalties as judicial guardians. C. S. L. C. c. 40, s. 17, I. In an action for rent, held, that the prroch-verhal of seizure could be left at the domioile of the defendant although he be absent, and and that such defendant could be legally constituted the guardian of the effects seized, and be compelled by contrainte par corps to produce the same, unless he can establish that when the seizure first became known to him the effects were no longer in his possession. Munn v. Hal/erty, 1 L. C. R. 170, S. C. 1850. OP JUDICIAL SKQUESTRATION, ARTS. 876-879. 459 jn defen- I*, 9 L. C. oit de ffuite Lb from the 262, C. C. iA removed -Held, that rdinaire and ;he premiaeB le balance of apply like- lues cannot, the custody p satisfaction effects, and liable to the CHAPTER FIFTH. OF JUDICIAL SEQUESTRATION. ^ ' ^ 876. All demands for sequestration are made by petition to the court [or to a judge]. It may also, according to cir- cumstances, be ordered by the court without being demanded by the parties. 1 Couc. 123; Orrf. 1667, tit 19, art. 12; \ Fig. 117-170,172, 387, 388; Guyot Vo. Revendication, ()21 ; hnbert, Enchiridion, pp. Ido-Q. , . 1. A judge in chambers has jurisdiction to appoint a sequestrator to an immoveable seized under an execution, when its sale has been stop- ped by an opposition. SirUcalet cti. v. Vknne, 14 L. C. J. 335, S. C. 1870. 877. The judgment ordering sequestration commands the parties to appear before the court or before a judge, on a day fixed, to name a sequestrator; and if the parties cannot agi'ee, the court, or judge, names one of his own accord. Ord. mi, tit. 19, art 'i. 878. The sequestrator must be sworn before the judge or the prothonotary to administer well and faithfully the things of which he is appointed depositary. He is put in possession by a bailiff, who draws up a state- ment containing a description of the property sequestruted. This statement should be signed by the bailiff and also by the sequestrator, if he can sign ; if he cannot, mention should be made that he declared he could not sign, after he was called upon to do so, and the statement had been read to him. 1 Couc. 123 ; Ord. 1667, arts. 6—9. 879. If among the things sequestrated some are consum- able or perishable, the sequestrator may cause them to be sold, observing the formalities prescribed for the sale of moveables under execution. 1 Couc. 123. *'t ^1 m •4i60 OF JUDICIAL SEQUESTRATION, ARTS. 880-883. 880. If the thing sequestrated consists in a right of eu* joyment, the sequestrator, if there is no conventional lease, is bound to give out the lease by auction. Oni. 1067, art. 10, 881. Neither party can, directly or indirectly, become lessee of the things sequestrated. Ihid. art. 18. 889. Repairs or other necessary expenditures cannot be made upon tbe premises sequestrated without the authoriza- tion of a court or judge, upon petition, of which the parties have received notice. Ihid. art. 12. ,.^ ^ 883. Sequestrators are subject to the duties and obliga- tions imposed upon guardians in seizures under executipn. They are, moreover, bound to render an account of tlieir administration when judgment has been given upon the con- testation, and also whenever, pending the suit, the judge orders them to do so, at the instance of either of the parties and upon cause shown. Whenever vioneys have been paid into Court, or are in th hands of the sheriff or the coroner, and their adjudication happens to he delayed for an indefinite time, either hy con- testation in the suit, or for other reasons, the Court may, upon the application of one of the parties, and after the others have heen heard or duly notified, order that tlie moneys L placed in the hands of some other sequestrator charged with investing them until judgment, so that they shall bear inter- est or profits in favour of the party who eventually will be entitled to receive them, or may order the first sequestvatm or depositary to invest them in like manner. 36th Vict. c. 5. C^e.>; 6. The third paragraph of article 883 is hereby repealed. 36 Vict. c. 14(Qit«.); 3. Every bailiff of the Superior Court, who shall have received any Bum of money arising from a seizure or judicial sale, and exceeding in amount $100, shall, unless he has lawfully handed over, distributed, or paid such sum, before making his return, deposit the same in the 83. ight of en- ional lease, }67,art. 10. bly, become 5B cannot be le authoriza- b the parties iS and obliga- ;r execution. ;ountof tWir upon tbe con- ait, the judge of the parties t or are in tk ,' adjudication , either by con- .urtmay,upn ,fter the othen the moneys h. >r charged with hall hear inter- ntually will h( M sequestratw OF JUDICIAL SEQUESTRATION, ARTS. 883-886. 461 prothonutary's ofiioe of tlie district within the limits of which the writ has issued, together with his return. J\ulicial and other deposits are regulated by the Acts 35 V. c. 6, and 36 V. c. 14 {Qiie.) The 6th section of the latter Act provides that moneys deposited according to its provisions may be attached in the hands of the Treas- urer of the Province in the usual manner by garnishment either before or after judgment. 884. A sequestrator is discharged by law upon his deliv- ering the property sequestrated to the party named in the judgment of the court, and also in the manner stated in the title Of Deposit in the Civil Code. 883. Orders of sequestration are executed provisionally, notwithstanding and without prejudice to any appeal. Ibid. art. 19. ^.., , . .,, ,, 88H. If either party, by violent means, hinders the ap- pointment or the administration of the sequestrator, the other party may apply to be put provisionally in possession of the things in dispute, under the same conditions as a sequestrator. P)id. art 16. loealed. have received any , and exceeding m J over, distributed, lit the same in the I '.-:•/ . 462 SUITS BETWEEN LESSORS AND LESSEES, ART. 887. TITLE SECOND. ( -4 '4 SPECIAL PROCEEDINGS. CHAPTER FIRST. SUITS BETWEEN LESSORS AND LESSEES. t 887. Actions to annul or to rescind a lease, or to recover damages resulting from the contravention of any of tjie stipulations of the lease, or the non-fulfilment ot any of the obligations which the law attaches to it, or arising from the relation of lessor and lessee, are instituted either in the Superior Court or in the Circuit Court, according to the value or the amount of the rent, or the amount of damages alleged. C. 8. L. C. c. 40, ss. 1-2, 25 V. c. 12, s. 1. 1. Where a tenant persisted against the landlord's will in occupying the premises, an action to eject her under Art. 887 could not be main- tained for want of jurisdiction, ihere being no lease and no occupation with the consent of the proprietors. School Com. St, David v. DeVar- ennei, 4 Q. L. R. 206, C. C. 1878. 2. The proceedings in an attachment for rent and ejectment cannot be maintained under the Act unless founded on a lease or on proof of occupation with the consent of the proprietor. Dubeau d: Dvbeau, 8 L. C. R. 217, Q. B. 1857. 3. A writ under the Lessor and Lessee Act, summoning a defendant to appear before " one or more of the judges for our S. C. for L. C, in the district of M. in the hall of the Court house, wherein are usually held the sittings of our said Court," is null, as such writ should be re- turned before the Court. Orant & Brovm, 8 L. C. R. , 187, Q.B. 185C. 4. The writ in an ejectment case need not be specially styled such, and an order to appear on the return day is sufBcie9t, without saying " at noon " on that day. The Fraser Institute v. Moore et al, 19 L. C. J. 133 S. C. 1875. 87. )r to recover any of tjie »t any of the ing from the ither in the rding to the ^ of damages 1. iU in occupying lid not be main- d no occupation ^avid V. DeVar- ning a defendant • S. C. forL. C, lerein are usually trit should be re- ], 187, Q.B. 1856. tally styled such, L without saying leetal.l9L. C.J. SUITS BETWEEN LESSORS AND LESSEES, ART. 887. 4G3 5. In actions in ejectment the jurisdiction of the court ia determined by the amount cif the annual lease, and not by the amount claimed. DorioH V. Puulain, 4. R. L. 5«6, C. C. 1872. 6 8o also in actions to rescind a lease. McGinnia v. Hormnan, 14 L. C. J. 224, S. C. R. 1870 ; Beaudry d; Thibuuileuu, 7 L. C. J. 137, C. C. 1863 ; Guy v. Gondreault, 14 L. C. H. 203, S. C. 1864 ; Contra : Voiaard iL Saunders, 1 Legal News 41, Q. B. 1877 ; Beaudry ct Denis, 20 L. C. J. 254, Q, B. 1876 ; Fisher et al. v. Vachtrn, 6 L. C. J. 189. 7. The plaintiff claiming £5CK) damages front the defendant, for breach of contract in refusing to give him possession of certain pre- iniHes, according to the terms of a written lease, brought his action under what is known as the Lessor and Lessee Act, and the defendant declined to the jurisdiction — Held, in two decisions, one on the de- murrer of the plaintiff, and one on the merits of the exception, that the court had no jurisdiction. Close <£• Close, 3 L. C. J. 140, S. C. 1857. 8. In an action by a lessor against a lessee for damtigt- h occasioned to the premises, and for violation uf the conditions of the lease in sub- letting — Held, on the declinatory exception of the defendant, that it was the amount of the annual re;>)t and not the gross amount for the whole term of the lease which governed the jurisdiction. Bedard <£- Dorion, 3 L. C. J. 253, C. C. 1868. 9. In £1 action on a lease for a term of five months — Held, that where the term of a lease was less than a year, and the anujunt of the rent for the time specified did not exceed £50, the Circuit Court had jurisdic- tion, notwithstanding the 5th section of the Lessor and Lessee Act, and notwithstanding the annual value or rent of the property leased would exceed £50, if the term extended to a period of one year. Clairmont et vir V. Dickson, 4 L. C. J. 4, C. C. 1859. 10. In actions under the Lessor and Lessee Act, it is not the amount of damages claimed, but the anrr dwn- the rwuH for trouble 1877. id the leww tion of the amount for [uetv.Hcirt, » anothor for an the prera- action unAei' 9 B. L. 4^, lot fall within es. Wcujgomr nnot be taken Carfier P- B. )r rescission, or without ion, if neces- lands of the 1 6, 8. 9. ^ourt or the matters, may J the vacation, lember. Ihid. 1 intermediate ttance of five \Q distance is a] iuridical day. SUITS nSTWEEN LESSORS AND LESSEES, ARTS. 891-807. 405 891. The defendant in bound to appear before noon on the day fixed by the writ ; if he does not, default is recorded against him and the plaintiff may procec 909. If several persons appear, claiming to be owners, each one in opposition to the others, the petitioner cannot be prevented from proceeding by such opposite claimants, unless his application is contested by one of them, who must previously establish an ostensible right of property, or unless one of them pays the amount of his claim and costs, Ibid. 88. 8-9. 910. In the case of there being opposite claimants to the property, without any contestation of the petition, the court may, reserving its decision upon the opposite claims, grant the pi^ayer of the petitioner, saving to the parties appearing, and to those who have not appeared, their claims upon the balance of the moneys levied, the distribution of which is made in the ordinary course. Ibid. 88. 11-12. 911. If one or more known owners are in possession, jointly with others who are unknown or uncertain, the creditor may, in the ordinary manner, sue the known owners. PETITIONS TO SELL LANDS, ART. 911. 471 )roceedings lits for the as possessing jointly with others unknown, and proceed in the same suit, in the manner hereinabove provided, against those who are unknown or uncertain, modifving the notice which is to be published, so as to meet the circumstances. — Ibid. 8. 16. ^.. B., as pro- l petition, by e proprietor, "tue of ^vhich. to be owners, itioner cannot 5ite claimants, em, who must property, or aim and costs. aimants to the ,ion, the court claims, grant •ties appearing, aims upon the jn of which is in possession, uncertain, the known owners, 33Vict., c. 16(^te.).- 1. Whenever land has been bold, under a deed of sale, and the sel- ler is entitled, by reason of non-payment of price or any other cause, to demand the dissolution of the sale, and the buyer has abandoned the land and has left it so abandoned during two years or a longer period, then the seller may proceed in a summary manner as herein- after provided to recover back the land so sold, and re-enter into pos- session of the same. 2. A notice shall be served upon the buyer stating that at a time and place therein mentioned the seller will apply to a judge of the Superior Court to recover back the land, or, if the buyer cannot be found within the district, he may be ordered to appear in the manner prescribed by article 68 of the Code of Civil Procedure. The notice shall likewise be served upon any person then in actual possession of the land. 3. The delay between the service of the notice and the day on which the application is to ba made shadl be that prescribed for ordinary cases by article 75 of the said Code, or that given by the said article 68, as the case may require. 4. After notice has been so given, and at the time and place men- tioned in the notice, the seller may, by a petition setting forth the facts of the case and supported by affidavit, and production of the written evidence of sale, if in his hands, apply to a judge of the Su- perior Court to have the deed of sale declared void, and to be put in possession of tLa land. 5. No contestation of the said petition shall be allowed except by counter-affidavits produced within three days after the presenting of the petition. 6. After the said delay of three days the judge may, in his discretion, either reject the petition or render a judgment declaring the deed of sale void, and authorizing the petitioner to take possession of the land. In the event of the judgment rejecting the petition, it shall not pre- judice the seller in any right he may have by law of bringing an action in the ordinary manner. •*72 PETITIONS TO SELL LANDS, ART. 911. M ■ fl: i: I 11 7. No such judgment shall be rendered if at any time before the rendering thereof the buyer or any penon for him or holding under him shall have paid either to the seller or into the office of the pro- thouotary of the Superior Court the full amount of any instalments of purchase money or interest due in virtue of the deed of sale, or shall have fulfilled every obligation entered into therein by the failure to fulfil which the seller had become entitled to demand the dissolution of the sale. « ' 8. If the seller is prevented by any person or persons from taking possession of the land in virtue of the said judgment, he may demand and obtain from the pruthunotary of the Superior Court a writ of pos- session to eject such person or persons and to place the seller in t>osseB8ion, and article 5P0 of the Code af Civil Procedure shall apply to such writ. 9. The buyer may obtain a review of the same judgment, and arti- cles 495 to 504 inclusively of the Code of Civil Procedure shall apply to such review. 10. All documents forming part of the proceedings under this Act shall iorm part of tho records of the Superior Court. 11. Article 2148, 2152 and 2153 of the Civil Code shall apply to the registration of any judgment rendered under this Act; and to the can- celling of the registration of any deed of sale declared void b^ such judgment, but article 2154 shall not apply if under section 2 of this Act, the buyer has been notified in the manner prescribed by article 68 of the Code cf Civil Procedure. , 12. In construing and applying this Act every buyer who having ceased to occupy the land by himself or by his family, has either made no transfer of his rights in the land, or has made a transfer but has not notified the seller in writing of such transfer, shall be deemed to have abandoned the land ; and no actual possession of the land by ary person s^all be deemed to be a notice of any such transfer. 13. Tlie words "deed of sale" in this Act shall mean and include not only any deed of sale but also any promis3 of sale or contract in the nature of a promise of sale followed by tradition and actual possession. TOWNSHIP LANDS HELD IN COMMON, ARTS. 912 -l>15. 473 before the ding under of thepro- talments of ftle, or shall le failure to ) diasolution from taking may demand » writ of pes- the seller in shall apply to lent, and arti- jshaU apply to under this Act ill apply to tiie and to the can- d void by such ection 2 of this Iribed by article Lean and include lie or contract in lition and actual CHAPTER THIRD. OF THE PARTITION OF TOWNSHIP LANDS HELD IN COMMON. 919. Any person seized as tenant in common of lands in townships originally granted, by letters-patent under the gieat seal of the Province of Lower Canada, to the grantees therein named as tenants in common, may demand a parti- tion thereof according to the ordinary form of law. Such demand may be made by petition, without the for- mality of a writ of summons. C. S. L. C. c. 14, s. 1. 013. The petition must be presented to the Superior Court in the district in which the lands are situated. Ihid. s. 5. 914. Upon proof of the petitioner's right of property, the court may order that his co-tenants shall appear on a certain day in term, but not before the expiration of one year from the date of such oiC :, to answer such demand in partition ; that such order shall be posted up in some frequented place in the township in which such lands are situated, or, if there is no such frequented place, then in some frequented place in the next adjoining township, six months at least before the day fixed for the appearance of the parties interested ; and that such order be published in the Canada Oazeti '* once a week during the said period of six months before tht day fixed for the appearance. Ihid. s. 2. 91*5. The co-tenants thus notified to make their claims must do so by an ordinary .atervention ; and the grounds they may have to urge against the petition for partition must be pleaded, and all issues in the case must be joined in the same manner as upon ordinary suits in partition. Ibid. 8.3. * Now " The Quebec Official Gazette." 31 Vict. c. 13, s. 4. (Que.) }T i'^ .a. 474 COMPULSORY PARTITION AND LICITATION, ARTS. 910-919. 910. The judgment ordering the partition is binding not only upon the parties who have appeared but upon those who have made default. Ibid. a. 4. M7. With the consent of the parties in the case, the court may, at any time before final judgment, refer the matters in dispute as well as the partition itself to be de- cided and finally determined by three arbitrators, one of whom is named by the petitioner, another by the interven- ing co-tenants, and the third by the court. The proceedings of the arbitratoi-s must be had in such |)lace in the township or parish in which the lands are situ- ate, as they or any two of them may appoint ; they may ex- amine the witnesses, or the parties, who may be sworn before a judge, the prothonotary, a commissioner of the Superior Court, or a justice of the peace, and the award of such arbi- trators, or of any two of them, is final. Ibid. 8. 5. 918. The court, as in all other suits, awards costi^ accord- ing to its discretion. Ibid. 8.7. CHAPTER FOURTH. OF COMPULSORY PARTITION AND LICITATION. m 919. When coheirs or coproprietors cannot agree upon a partition of their common property, the action at law to ob- tain such partition belongs to the one who is first to institute it. 1 Pig. 762 ; 2 do. 414 ; G. P. C. 966-7. \ 1. In an action in licitation of an immoveable property held j>ar hidivis by the parties — Held, that such an action always contains a demand of pbrtition, and in such action the parties, plaintiff and defendant, are in the same relative positions, each party being at the same time plaintiff and defendant. Boawell v. LUyyd et al. 12 L. C. R. 447, S. C. 1862. 10-919. COMPULSORY PARTITION AND LICITATION, ARTS. 91^-025. 475 ling not >n those caae, the refer the to be de- rs, one of interven- ,d in such s are situ- .y may ex- 'orn before e Superior such arbi- 5. »sti^ accord- lON. igree upon a ,t law to ol- to institute t jerlyheld par Iways contains Is, plaintiff and Ity being at the letol. 12L. C. 2. And the caaie of action in such oaae is the joint ownership par mlm$, and not the alleged indivisibility of the propertji itself. lb. 3. On demurrer to an action for a specific siun as the proceeds of a comtnunity between the plaintiff and his lat« wife — Ueld, that the ac- tion should be one of partage. Ihipuis v. iMifmis, 6 L. C. R. 475, S. C. 1864. 9910. All the coheirs or coproprictors must be parties in the suit tor a partition, without prejudice to, the provisions of the preceding chapter. 1. In an action in partition of a succession all the co-heirs must be parties to the suit either as plaintiffs or defendants. Laverdiire v. LaverdUre, 1 Rev. de L^g. 347, K. B. 1816. 931. A special tutor must be named to each minor whose interests are opposed to those of any other minor. G. P. C, 968; G. G.Suc. 97. 939. The court, before rendering judgment upon the suit for partition, orders that the immoveables shall be viewed and valued by experts appointed according to the ordinary ndes ; in order to ascertain whether the whole of the im- moveables can be conveniently divided, and, in such case, to form the shares according to the provisions of articles 702, 703 and 704, in the Civil Code. 2 Pig. 420 -442 ; G. P. G. 970-1. 933. If ail the parties have attained full age they may agree upon one expert. C P. (7. 971. ' 934. The same proceedings are had upon the report of B-nftrt-. fl.Q iinr»n n.nv nfVipr rfinnrf, of ftvnftvt.a 2 Pici VSS4. ine same proceeamgs are naa upon lae : such expert as upon any other report of experts, 443 et seq., G. P. G. 971- 93S. After the report of the experts has been homolo- gated, the court sends the parties^ before the prothonotary or some other person, to proceed with the allotment of shares^ minutes of which are taken. 2 Fig. 444 ; C. P. G. 975-982.' i'^'. 476 COMPULSORY PARTITION AND LICITATION, ARTS. 92G-929. II' " «„ 090. If the suit is for an ciccount and a partition, the loir) are not formed until after the accounts, the returns, the formation of the mass, and the pretakings have been deter- mined by a practitioner, who is named by the parties or by the court, and whose report must also be homologated. 2 Pig. 443 ; G. P. C. 976. 997. When immoveables cannot be advantageously di- vided, or when there are not as many lots of land ascoparti- tioners, the court may order that such immoveables be put up to public auction and sold by way of licitation. 2 Pig. 416-7, 421 ; Poth. SociSM, 170-1, 19*. 1. The court will not order a sale by licitation if a partition can be as advantageously made. BicUjari v. Duhamel et al. 2 Rev de L6g. 441, K. B. 1820. . * . i 998. Rules concerning voluntary licitation are contained in the third part of this code. The provisions of this chap- ter apply to licitations judicially ordered upon actions for partition. . 999. When the court has ordered a licitation, the plain- tiff must cause an advertisement to be published three times in the space of four months in the Canada* Gazette, in the French and English languages, stating that the immovea- bles therein designated, will be put up to auction and adjudged to the highest and last bidder, at the sitting of the Superior Court next after the expiration of four months from the first insertion of such notice, subject to the condi- tions mentioned in the list of charges, and giving notice that all oppositions to the sale must be filed at least fifteen days before the day fixed for the sale, and that all oppositions for payment must be filed within six days after the adjudica- tion, on pain of being foreclosed. G. S. L. G. c, 48, s. 3, and Schedtde F. • ♦ Now " The Quebec Official Gazette," 31 V. c. 13, ». 4 {Que.). 26-929. COMPULSORY PARTITION AND LICITaTION, ARTS. 929-930. 477 the loi ' rns, the n deter- es or by ated. 2 ously di- scoparti- es be put i. 2 Pig ition can be lev de Lfeg. ! contained this chap- actions for the plain- hree times zette, in the immovea- Luction and tting of the 3ur months o the condi- notice that fifteen days positions for le adjudica- 48, 8. 3, and 4 (Que.). Form No. St f • Tn connection with article 929. Lower Canada, District of } LiCITATION. Public notice is hereby given that under and by virtue of a judgment of the Superior Court sitting at , in the District of , on the day of , one thousand eight hundred and , in a cause in which A. B., (ie«- cripf n at le.igth) is plaintiff and C. D. (description at lenijth) is defendant, ordering the licitation of certain im- moveables described as follows, to wit : {}t£re insert the des' cnption of the property to be sold) the property above des- cribed will be put up to auction and adjudged to the last and highest bidder on the day of next, sitting the Court, in the Court Room of the Court House in the said city (or town) of subject to the charges, clauses and conditions contained in the list of charges, deposited in the Office of the Prothonotary of the said Court ; and any oppo- sition to annul, to secure charges, or to withdraw, to be made to the said licitation, must be filed in the Office of the Pro- thonotary of the said Court fifteen days at least before the day fixed as aforesaid for the sale and adjudication, and oppositions for payment must be filed within the six days next after the adjudication, and failing the parties to file such oppositions within the delays hereby limited, they will be foreclosed from so doing. 030. The notice must also be read and published on the third Sunday before the day on which the licitation is to take place, at the door of the church of the parish in which the immoveables are situated, and if there is no church or if the immoveables are not situated within the limits of a parish, then at the most frequented place in the locality, y *, • H ■' ' 478 COMPULSORY PARTITION AND LICITATION, ARTS. 930-034 and a copy of such notice must be posted up at the placo where such publication is made. Ihid. 88. 2-3; 27-28 V. c. 3y,«. 1. 031. [If the plaintiff fails to proceed with the publication of such notice within fifteen days from the judgment of lici- tation, any other party may do so, and the first who takes such proceedings has the preference, and has alone the right to be paid the costs of the licitation.] 939. Oppositions to secure charges, to withdraw, or to annul, in respect of immoveables which are to be sold by licitation, cannot be received after the fifteenth day previ- ous to the day fixed for the licitation ; if they are filed after that period the right of the opposant is converted into an opposition for payment out of the price of the immoveables . a S. L. G. c. 48, 8. 6. 933. If any opposition to secure charges, to withdraw, or to annul [or any other proceeding incidental to the lici- tation], cannot be decided before the day fixed for sale, the licitation is suspended, and, when rendering judgment upon such opposition or proceeding, the court may, if necessaiy, fix another day upon which the sale may be proceeded with, after the parties have caused another notice, in the same form as the first in so far as it can apply, to be published in the Canada Gazette,* at least three weeks before the day thus fixed. Ibid. 8. 7. 934. Bids may be made in writing at the prothonotary's office, in the same manner as in cases of sale of immoveables by the sheriff", and on the day appointed bids are received at the prothonotary's office, but the adjudication is com- pleted before the court, and minutes are drawn up of such bidls and adjudication. Ibid. a. 2 ; 27-28 V. c. 39, 8. 1. Strangers are in all cases admitted to bid. • Now '• The Quebec OflBcial Gazette." 31 V. c. 13, s. 4 (Que.) 10-034 le place ►8 V. c. )Ucation t o! Uci- ho takes Lhe right a,w, or to ,e sold by lay previ- filed after d into an noveable!». withdraw, to the lici- »r sale, the rinent upon necessaiy, seded with, the same (ublished in ,re the day in jthonotary's Immoveables lare received lion is com- up of such i9, 8. 1. tOMPUIJSORT PARTITION AND LICITATION, ARTH. »35-93(>. 47".> 090. The adjudication is made in nccordance with the conditions contained in the list of charges, which nniht have been approved by the 30urt or judge, after hearing the par- ties, and must have been Hied in the prothonotary's oftice at least [thirty days] before the day fixed for the sale, C. S. L C. c. 48, a. 8. After the adjudication is completed, and the purchaser has complied with the conditions by paying the moneys whieli are to be deposited in court, the prothonotary must prepare a deed of sale which must be drawn similarly to a sherifTs deed in so far as the provisions of article G8J) are •pi)licable. See Form 30, ante, under art. 700. 1. The Court oannut alter the conditions of the sale after licitation, and thereby change the position of the purchaser. Comte efc Archam- banlt d? vir, 8 R. L. 102, Q. B. 1876. 2. Where the conditions of sale require that the purchase-money be deposited in the hands of the prothonotary, the Court cannot auth- orize the retention thereof by one of the parties to the cause who has been declared adjtidkataire, and who is apparently entitled to receive the money eventually, even on giving good security. Siamjield d- vir V. Utanajield 9 L. C.J. 103, S. C. 1864. 936. The adjudication, after the observance of the for- malities above prescribed , transfers the property with its active and passive servitudes, has the same effects as a sheriff's sale, and discharges the property in the same man- ner from such other charges, privileges and hypothecs, as are not mentioned in the list of charges. Ibid. s. 5. 1. An trror as to the contents of an immoveable in a judgment or- derinjj a partition is not a cause of nullity, and such error may be rectified in appeal by a judgment of that court with costs against the appellant. Peloqnin et cd. d: Bmnet et al., 3 R. L. 386, Q. B. 1871, 2. The purchaser of an immoveable sold by licitation in open court, cannot obtain possession of it without the intervention of the Court which ordered the sale, if this possession is refused him by the occu- I* I. 480 COMPULSOHY PARTITION AND LICITATION, ARTS. f)3({-!>40. punt, notwithitandiiiK that the latter waa a party t«) the luit. Hut •!■ MilUtU, t) R. L. 66, g. n. 1M7((. Hiio arti. 706 e( tq. (tnte, fnr ftfecta of a HhorifTs m1(>. 937. The price of tho a*ljuilicatiun nui.st ho paid acconi- ing to tho coiulitioas of tho sale, anld8 the land which is in his possession in right of another, he must Hi't forth ii !ii« exception the name and residence of the person from whom he holds. Fortier :s — Held, that an allegation of possession by the plaintifif is sufficient to maintain such action without alleging an annual possession. Stvart v. Langley et al., 1 L. C. B. 338, S. C. 1851. 2. And where the conclusions contain all that is necessary for an ac- tion en complainte, the action must be maintained. Doyon v. The Cor- poration of the Parish of St. Joseph, 17 L.C. J. 193, Q. B. 1873. 3. In an action en complainte, possession for a ye:;v and a day ante- cedent to the day on which the trespass was committed must be al- leged in the declaration. Jourdain v. VUforeux, 3 llev. de Ldg. 39, K. B. 1809. 4. The procedure prescribed by the Ordinance of 1667 is still in force with regard to actions en complainte, by a proprietor who is troubled in his possession by the construction of works in fraud of his rights, but the Ordinance has only in view a final judgment and not a provi- sional remedy. Oirard v. Bilanger et al., 17 L. C. J. 36, S. C. 1873. 5. But when the possession is disputed and the trovhle denied, the action degenerates into a simple action of damages which follows the ordinary procedure. Oirard v. Bilanger el al., 17 L. 0. J. 36, S. C. 1873. 6. Held, reversing the judgment of the Court of Review, that the possession of a year and a day must immediately precede the tro^ible complained of, and must be continuous and decided ; and that cai-ry- ing away wood already cut is not a trouble de fait sufficient to found an action en complainte. Onillemette v. Larochelle, 2 L. C . L. J. Ill, Q. B. 1866. 947. Possessory actions must be brought within a year from the disturbance. 948. Saving the provisions of article 1110, actions on disturbance, or for repossession, cannot be joined with the petitory claim, nor can the latter be brought until the action on disturbance or for repossession has been terminated, and the condemnation has been satisfied and executed. Never- theless, if the party who has obtained judgment is in default with regard to the taxation of the costs and the liquidation of the damages, the other party may bring his petitory ^•■■ . 484 OF DISCHARGE FROM HYPOTHECS, ARTS. 948-950. action, on giving security that he will satisfy such condem- nation. . , See arts. 15 and 120 ante. CHA-TER SEVENTH. OF DISCHARGE FROM HYPOTHECS, OR CONFIRMATION OF TITLE. 049. Any person who has acquired immoveable property by purchase, exchange, or other title of a nature to transfer ownership, may free such property from any hypothecs with which it is charged by obtaining a confirmation of his title according to the formalities hereinafter prescribed. C S. L. C, c. 36, 8. 1. 9«SO. Such person must lodge the title which he seeks to have confirmed in the office of the prothonotary of the Su- perior Court, in the district where the immoveable is situ- ated or in which the confirmation of title must be obatined, and obtain from the prothonotary a notice mentioning that the deed has been so lodged, containing a designation of the deed and of the parties thereto, a description of the immove- able, the date at which the application for confirmation will be presented to the court, an indication of the persons who possessed the immoveables during the three years next be- fore such notice, and calling upon all creditors who claim to have any privilege or hypothec upon the immoveable to file their oppositions at least eight days bof ore the day fixed for presenting the application. Ibid. ss. 2-4. If the deed comprises immoveables situisited in different districts, an application for confirmation of title should be made in each district, for such immoveables as are situated therein. When the immoveable is situated partly in one district 950. h condem- ON OF TITLE. ible property re to transfer rpotbecs with m of his title icribed. G. S. ,ch he seeks to iry of the Su- iveable is situ- jt be obatined, [entioning that ignation of the ►f the immove- itirmation will ^e persons who years next be- |s who claim to loveable to file le day fixed for led in different Ititle should be las are situated OF DISCHARGE FROM HYPOTHECS, ARTS. 950-951. 486 and partly in another, the proceedings may be had in either district, and avail for the whole of the immoveable. Ibid, 8.5. _ .,, . . _ _ Form No. 50. In onnection with article 950. Public Notice is hereby given that there has been lodged in the office of the prothonotary of the Superior Court, in the district of , a (Deed) made and executed before A. B. and colleague, notaries public, on the day of , between C. D. of , of the one part ; anH K F. of , of the other part ; be- ing a (sale) i,y . ; lid C. D. to the said E. F., of (a lot or parcel of Ian. uate, &;c., and possessed by as proprietor, for the three years now last past ; And all persons who have or claim to have any privilege or hjrpo- thec under any title or by any means whatsoever in or upon the said (lot of land), immediately previous to and at the time the same were acquired by the said C. D. are hereby notified that application will be made to the said court on , the day of , for a judgment of confirmation, and that unless their claims are such as the Registrar is bound by the provisions of chapter thirty -six of the Consolidated Statutes for Lower Canada, to include in his certificate to be filed in this case under the said Act, they are hereby required to signify in writing their oppositions, and file the seme in the office of the said prothonotary eight days at least before the said day, in default of which they will be for ever precluded from the right of so doing. in one district 931. The notice must be in French and in English, and be inserted three tim&j in the course of four months in the Gonnda Gazette.* Ibid. s. 2, § 2. * Now." The Quebec Official Gazette," 31 V. c. 13, b. 4. {Que.) 486 0~ OISCHARQE FROM HYPOTHECS, ARTS. 952-955. 90' .'he notice must be publicly and audibly read, on the ti) i Sunday before the day on which the application is to be presented, at the door of the church of the parish or place where the immovoable is i>ituated, or, if there is no church, at the most frequented place in the locality, and must be posted up at the place where such publication is made. Ibid. «. 2, § 2 ;— 27-28 Vict. 39, s. 2. SBVict. c. 6, (^ti« lodged, aiu* another motion was made to have the deposit declared irregular, because no sum for interest had been added, it was held that the interest was no part of the purchase-price and the £100 were declared to be sufficient. HaH exp. 3 L. 0. J. 40, S. C. 1852. 964. But if the sum deposited is not sufficient to pay all the charges and hypothecs which appear, or if no price is mentioned in the deed, the court or a judge may, at the in- stance of the applicant, name two ; xperts, and the applicant names a third, in order to determine the value of the pro- perty and to report thereon ; the whole according to the ordinary formalities. Ibid. § 3. 96«l. If the value datermined by the expei s does npt exceed the price paid in by the applicant, the judgment of coniinuation is pronounced purely and simply. If the value determined by the experts exceeds the price thus paid in, or if no price is mentioned in the title deed, the applicant cannot obtain a confirmation, unless he deposits the difference between the value thus ascertained and the price, or the whole of such value, if no price ha« been agreed upon. Ibid. § 4. 966. The provisions of the last two preceding articles do not apply to cases of expropriation of property by com- petent authority for public purposes, when the compensation or indemnity has been settled by arbitration or by experts, according to law. Ibid. 8. 13. 967. Upon proof of the observance of all the formalities hereinabove prescribed, judgment is pronounced, confirming the title deed as free from all hypothecs, other than those mentioned in article 958. Ibid. 8. 14. 1. The only effect of the judgment is to do away with mortgages without in any maiiner purifying the title-deed which retains all its imperfections. Olackmeyer t. TAe Mayor, die. , of Q%iebec & Lagnevx, 11 L. 0. R. 18, S. C. 1860. 67. the depotlt ded, it yfv* id the £100 S. C. 1862. , to pay all tto price is , at the in- e applicant )f the pro- ding to the s does no"; judgment of jds the price Q title deed, 3S he deposits ined and the been agreed OF SEPARATION OF PROPERTY, ARTS. 968-972. 491 968. If the applicant is willing, and files a written decla- ration to that effect, judgment may be rendered subject to the hypothecs mentioned in the certificate of the registrar and to the oppositions and claims filed: and in such case the immoveable is discharged from such hypothecs only a^ are not mentioned in such judgment. Ibid. a. 12. 969. The price deposited is distributed under an order of the court, like moneys levied upon the seizure and sale of immoveables under execution. Ihid. a. 19. 970. The prothonotary, before delivering to any person whatever a copy of any judgment of confirmation of title, is bound to cause such judgment to be registered in the proper registry office, as prescribed in the title Of regiatra- tration of real rlghta in the Civil Code, and has a right to demand from the applicant the cost and expenses of such registration, and of the cancellings which it occasions. 25 F.c. 11, « 2. - 971. The word "hypothec," in this chapter, includes all privileges affecting real estate. Ibid. a. 32. V !■ ? t: iding articles |erty by com- lompensation by experts, le formalities 3d, confirming 3r than those CHAPTER EIGHTH. OF SEPARATION BETWEEN CONSORTS. SECTION I. Iwith mortgages retains all its ibec & lojfHeMX, OF SEPARATION OF PROPERTY. 973. No suit for separation of property can be brought by a married woman without the previous authorization of a judge, granted upon petition to that effect or upon con* 1. « n: ,^'% f. n ■ 1 >,( 492 OF SEPARATION RETWEKN CONSORTS, ARTS. 972-977. clu.sions for that purpose contained in the declaration in such suit. 2 Pig. 182; G. P. C. 805. 973. Suits for separation of property must be brought only in the cases and within the jurisdiction mentioned in article 1311 of the Civil Code, and in article 35 of this code. 2 Piy. 181. 974. The formalities required for summons in ordinary cases must be strictly observed in such suits ; and the con- sort summoned has no power to dispense with the same, either directly or indirectly, even as regards the delay upon the summons. [Notice of such suit must be given and published during one month in the Canada Gazette* aud in two newspapers at, or as near as possible to, the place where the defendant re- sides, one of which is published in the French and the other in the English language. No proceedings can be had in such suit until after the pub- lication of such notice.] 27-28 V. c. 17, 8. 12, § 3. 975. Any creditor of the person sued for separation of property has a right to intervene in the suit, in order either to watch the proceedin^js or to contest the plaintiff's claim, ana he may f r this purpose set up whatever grounds and exercise whatever rights his debtor might. — Code, Conv, Matri. art. 60 ; 2 Pig. 180 ; 27-28 V. c. 17, «. 12 § 3 ; G. P. G. 871. 976. Separation of property thus sued for cannot be granted upon the confession or the admissions of the de- fendant ; the allegations of the declaration must be estab- lished by some other legal proof. 2 Pig. 186-7 ; G. P. G. 870. 977. The judgment pronouncing separation of property may, at the same time, determine the reprises of the plaintiff, * Now " The Quttbec Official Gazette." 31|r., c. 13, «. 4 (Que.). ,tion in brought ioned in his code. ordinary the con- he same, dlay upon luring one jpapers at, endant re- l the other the pub- iparation of ,rder either Itiff's claim, rounds and fode, Gonv. cannot be of thede- st be estab- X P. a 870. J of property Ithe plaintiflf, UfQue.)- OF SEPARATION OF PROPERTY, ARTS. 977-981. 493 or order that they shall Ihj (letiTinined by a pr.ictitioiitr or by experts, if there be occasion for it. 2 Piij. 19.*)-4. 978. The judgniont of separation must be executed and published in accordance with the provisions contained in articles 1312 and 1313 in the Civil Code. C. P. C. 8G0-H72. 979. The wife who sues for separation may accept or renounce the comrauriity, according to circumstances. If the husband fails to make an inventory, she may, upon being authorized, have one made, if she has not renounced. If she accepts, the partition is effected in the manner pro- vided in the Civil Code, in the title relating to marriage covenants. 2 Pig. 182-3, 190. 980. [The wife's renunciation of the community must be registered in the registry office of the division in which the husband was domiciled at the time that the suit was brought.] 981. The j '^ent of separation may be executed volun- tarily or by legal means, as provided in article 1312 of the Civil Code, but without prejudice to the rights of third parties. [No married woman, separated as to property, can carry on trade until she has delivered to the prothonotary of the district and the registrar of the county in which slie intends carrying on trade, a declaration in writing stating her inten- tion, her names and surname and those of her husband, and the style under which she proposes carrying on such busi- ness. This declaration is entered and transcribed in the same registers as the declaration concerning partnerships mentioned in chapter 65 of the Consolidated Statutes for Lower Canada. All married women, separate as to property, and carrying on trade at the time of the coming into force of this code are bound to comply with the above mentioned formalities within six months from such time. 404 op HEPARATION BETWEEN CON80RT8, ARTH. 981-985. f.4 m [■?■ i' ' '''-■ %i ^it Any married woman failing to comply with the require- ments of this article is liable to a penalty of two hundred dollars which may be recovered, before nny court of compe- tent civil jurisdiction, by any penton suing as well in his own name as in behalf of the crown, and one half of such penalty belongs to the prosecutor and the other half to the crown, unless the suit be brought in the name of the crown only, in which case it is entitled to the whole of the penalty.] 9§9. When the reprises of the wife consist of moveable property, the husband may oblige her to invest the proceeds thereof, or a portion of the same, in the purchase of immove- ables. 2 Pig. 19Q. 988. If the husband gives up immoveables to his wift in payment of her reprises, she must apply for and obtain a judgment of confirmation of the deed by which he does so, according to the formuiities prescribed in the preceding chapter. Ibid. 984. If the amount at which the rights of the wife have been determined is not voluntarily paid, execution may be enforced as in ordinary cases. Nevertheless, the husband may compel the wife to receive immoveables in payment, at a valuation by experts, pro- vided such immoveables are available and do not prejudice her interests. Ibid. SECTION II. OF SEPARATION FROM BED AND BOARD. \ 98«l. Besides the provisions contained in the Civil Code on the subject of separation from bed and board, those of the present section also apply. 2 Pig. 216-7. 1. In an action in separation from bed and board it la not necessary .to gire notice in the Official Oazette or in any public journals, notwith- 985. require- huiwlred f compe- ell in his ' of BUCh ilf to the ho crown I penalty.] moveable e proceeds ,f immove- to his wift nd obtain a he does so, e preceding ie wife have ttion may he lie to receive ixperts, pro- lot prejudice HUPARATION rUOM htuD ksu uuaku, artm. 085-98i). 495 atondiiiit luch actiuii untaila aeparatiou of propvrty. Leelere v. LmU, 4 K. L. 631, 8. C. 1873. 986. A wife who desires to obtain a separation from bed and l>oard must, in order to brihg the suit, first obtain the authorization of a judge, by moans of a petition giving a . summary statement of the faints which give rise to her ap- plication, with an affirmation umler oath, and indicating t)ie house where she intends to reside during the suit, a:id where she will convey the linen and wearing apparel neces- sary for her use. The application must be served upon her husband, if the judge so orders. 2 Pig. 21G-7. 987. If the wife thinks proper to demand an attachment of the moveable property of the community, she must like- wise be authorized by a judge for that purpose. The attachment is effected in the same manner as attach- ment for rent, but the husband remains judicial guardian of the property attached. 2 Pig. 184. 988. The wife may also join with her demand for sepa- ration an attachment in revendication of such moveables as belong to her. 989. The trial of the case, the judgment, its exec. ':on, and its publication are subject to the provisions contJi;.' cd in the preceding section. 1. When the husband sues his wife she does not require any autho- rization to eater en jiutiee. Liisner tfc Archambavlt, ^1 L. C. J. 53, Q. B. 1848. le Civil Code Card, those of lis not necessary lurnals, notwith- 496 OP OPPOSITIONS TO MARRIAGE, ARTS. 990-995. It i CHAPTER NINTH. < OF OPPOSITIONS TO MARRIAGE. 990. [Every oppoaition to a marriage must be accom- pHiiied with a notice indicating the day and hour at which the opposition will be presented to the Superior Court, or to a judge of such court.] 991. [The opposition and notice must be served both upon the functionary called upon to solemnize the marriage and. upon the intended consorts, or the persons who repre- sent them, a delay of five intermediate days being observed, with the usual addition where the distance exceeds five leagues.] 993. [The proceedings upon the opposition are summary, and conducted in the same manner as those in suits between lessors and lessees.] 993. [If the opposant fails to present his opposition upon the day fixed, any person interested may obtain judgment of non-suit against him, upon tiling a copy of the opposition served upon such person ; and upon receiving a copy of such judgment the functionary called upon to solemnize the mar- riage may proceed.] 994. [If the opposant fails to proceed in the manner prescribed the opposi.tion is declared abandoned.] 99«S. [The court or judge before rendering judgment upon the opposition may, if there be cause for it, summon the parents, or, in default of parents, the friends of the in- tending consorts, in order that they may give their opinion upon the intended marriage, and that such further action may be had as to law may appei-tain.] CORPORATIONS ILLEGALLY FORMED PTn ^^«^^^. ETC.. ARTS. 996-997. 497 ''''•• [An appeal lies fn ihr. j«dgn,e„te renle'red TXprLI'^r'' ^^'"='' '™» les being observed .. i„ appJfwTh' ^^ ™"" '""""'i- ".e proceeding, „„ .,„,, apprlll" ?ri' ^°-. ""C CHAPTER TENTH OFFICES. OR PUBLIC SECTION I. OF COEPOKATiONS lUEOAHv POK.,pn f*'.'"«'«<'''"o«'ing eases: -po.:r;:brbt:~^^^ -^o^-- «- - n^sed; *> '^^a^^y incorporated or recog- viol!t°;:,' ZpZr °s r"r "^^ - ^^'^. Sovemed, or beeomes liabj Wa If';, ^"*^ ^ ^^^h 't is loes or omits to do actsthe do,2 ' °' "" "S*"*- »■■ «n>ountstoasorr«derof,>7j * ^ ""''^'o'' «' which '-*»«. or exe.™rprf/'«\^!.P"'iIege,a„1 ---esnotbeiongtoifor-'n^.tt-d^Sj wr.rfo "/rif tTr r--«-- ^o- "oauons of the law wheneve he hL T^' ""'»''■ ™«h ">• .»«* facts can be establ^ld h^^l"^"*™ "> ^''^"^ P"W.c gene^I inte^st; but he 'i: r''/" '^"^ ■»»» »' 32 ne ,s not bound to do so in any 498 CORPORATIONS OR PUBLIC OFFICES, ARTS. 997-998. 1 1 other case unless sufficient security is given to indemnify the government against all costs to be incurred upon such proceeding. G. 8. L. C. c. 88, 8. 9. 41 Vict. c. 13, ^e.) : ]. Article 997 of the code of civil procedure, is amended, by adding thereto the following words : "and in such case the special informa- tion must mention the names of the person who has solicited the Attor> ney-General to take such legal proceedings and of the person who has become security for costs." 1. The remedy provided by art. 997 does not deprive a person of their right at common law to bring an action in his own name to an- nul as illegal a by-law imposing a special tax. Any person may seek xedress before the tribunals of the country against corporations by whose acts his rights or property may be injuriously affected, or by whom he may be in any way aggrieved, in the same manner and to the same extent as he could do so against individuals under similar circum- stances. Hunt et al. v. The Corporation of Qtiebec, 4 Q. L. B. 275, S. C. 1878. 098. The summons for that purpose must he preceded by the presenting to the Superior Court, in term, or to a judge in vacation, of a special information, containing conclusions aclajited to the nature of the contrxventimi, and supported hy affidavits to the satisfaction of the court or judge; and the writ of summons cannot issue upon such informa- tion without the authorization of the court or jiidge. Ibid. 35 Vict., c. 6, (Que.): 21. Article 998 is amended so as to read as follows : — " 998. The summons for that purpose must be preceded by the pre- senting to th" Superior Court, or to a judge, of a special information, containing conclusions adapted to the nature of the contravention, aud supported by an affidavit to the satisfaction of the court or judge, aud the writ of summons cannot issue upon such information without the authorization of the court or jud<^e. This writ, as well as the writs of quo warranto, mandamus and pro- hibition, shall be in the same form as ordinary writs of summons." 1 . It is not necessary that the judge's order direct the respondent to appear at the place mentioned in t^e petition. Bureau v. Normand a Gomnet al., 5 R. L. 40, S. C. 1873. -998. CORPORATIONS ILLEGALLY FORMED, ETC., ARTS. 999-1004. 499 indemnify upon such 3d, by adding ecial inf orma- itedthe Attor. erBon who has ve a person of rn name to an- OTon may seek corporations by , affected, or by annerandtotbe r similar civ«um- 4 Q. L. B- 275. it he i^eceded term,, or to a yn, containwg rxventio^h f'^''^'^ court or jitd(/«; such w/orina- Jndge. Ibic/. Ldedbythevre- Lcial information, Contravention, and lourt or judge, and ■aation without the liaiidcwnus and pr'*- ( of summons. It the respondent to 099. The writ of summons commands the persons acting illegally as a corporation, or the corporation complained of, to appear on a day fixed by the court or judge. It is served, in the first case, upon some one of the per- sons usurping corporate rights, or at the principal office or place of business of the association, speaking lo a reason- able person ; and, in the second case, according to the pro- visions contained in articles 01, 62, 03 and 78. Ibid. s. 10, §§2.3. 1000. The delay upon summons is three days, with the usual extension when the distance exceeds five leagues, as prescribed by article 75. Ibid. 8. 1, § 2. See ante, art. 75. 1. The delay after service of a writ of quo warranto, when in con- formity with art. 1000 of the Code of Procedure, is three days. Bu- reau tfc Normand In judicially pro- Giuino Comi-auii Le security ve- lof the property Iwhich he must Ipresenceof one If such corpora- »^eable property USURPATION OF PUBLIC OFFICES, ARTS. 1010-1016. 601 1010. [He is bound to give notice of his appointment by an advertisement to be inserted at least twice in two news- papers designated by the court or judge.] 101 1. The curator must cause the proceeds realized to be distributed among the creditors of the corporation, by the Superior Court, in the district in which its principal place of business was situated, after giving notice of the day upon which he will make application for that purpose. Such notice must be published at least three times in two public newspapers, named by the court, and the first publica- tion must be made two months at least before the day fixed for such application. C. S. L. G. c. 88, s. 10, §§ 1, 2. 1019. If there are any debts remaining due by such cor- poration, its immoveable property can only be sold upon a suit brought against the curator in the ordinary form. Und. s. 3. 1013. [If there are no debts due by 55nch corporation, or if such debts are not known, then the curator must proceed to the sale of the immoveables to the highest bidder, after ffivinff notice of such sale, in the same manner as the sheriff does in executions against the immoveables of a debtor.] Ibid. 8. 4. , 1014. A sale thus effected by the curator after observ- ing the requisite formalities, has all the effects of a sheriff's =!ale, Ibid. s. 5. ' WIS. The e irator is then bound to account, in the same manner as curators to vacant estates. SECTION II. USURPATION OF PUBLIC OR CORPORATE OFFICES. 1010. Any person interested may bring a complaint when- ever another person usurps, intrudes into, &r unlawfully holds or exercises : 502 CORPORATIONS OR PUBLIC OFFICES, ARTS. 1016-1017. 1. Any public office i»! any franchise or privilege in Lowev Canada ; 2. Any office in any corporation, or other public body or board ; Whether such office exists under the common law, or was created in virtue of any statute or ordinance. C. 8. L. C. c. 88,8. 1. , . 1. A petition in quo xvarranto is not null by raasr a writ of 7M0 ivarrmito takes the place of the de- claration ref ;Trod to in article 50 of the Code of Procedure. lb. 3. The potit'/jT, for a writ of qtio warranto does not require to be numbered wiiore the writ itself bears the number given to it by the court, lb. 4. A petition for quo warranto addressed to "J. P., Judge of the Superior Court, having and exercising jurisdiction in f]ie district of Three Rivers," is an indication of the tribunal and of the judge, cqui- valen' to that referred to by the English authors. Bureau v. Normand & Oonin et al, 5 R. L. 40, S. C. 1873. 5. The right to a municipal office must be contested according to the provisions of and in the manner prescribed by the Municipal Code, and not by quo warranto. Fiset v. Fournier, 3 Q. L. R. 334, S. C. R. 1877. 1017. Such complaint is brought before the Superior Court, or before a judge of the said court, but the writ of summons cannot issue without leave of the court or judge, obtained in the manner mentioned in article 998 ; and the same delays and formalities are observed in the proceedings as in the preceding section. Ibid. 8S. 1,2, 3, 4. 1. It is discretionary in the court to grant or to withhold a guto war- ranto information, even where a good objection to the title is shown. Eoyetal. v. Thiba^dt, 22 L. C. J. 280, S. C. 1878. 2. The petition required for the issuing of a writ of gtto warranto, which sets forth generally the grounds of complaint, is sufficient, with- out setting forth the details. Fraser db Buteau, 10 I4 C. R. 289, Q. B. 1860. m i i_l017. , in Lower ic body or a-w,or was . S. .0. C. c. Ke abaence of tUe axinf; of fc tfouiH, 6 11 laco of the de- ure. 1^' t require to be en to it by iihe ',, Judge of the 1 the district of the judge, cqui- ettti V. Norrmwi according to the iicipalOode,and 334, S. C. R. the Superior ut the writ of loui-t or judge, 998 -, and the he proceedings 4. \ thhold a quo war- he title is shown. of quo warranio, lis sufficient, with- I L. C. B. 289, Q. USURPATION OF PUBLIC OFFICES, ARTS. 1017-1021. 503 3. In proceedings affecting corporations or public officers, the defend- ant may set up against the information a declinatory exception, and at the same time pleas to the merits of the petition. The Attorney- geiieroi V. Gray, 16 L. 0. J. 265, S. C. R. 1871. 4. It is not necessary in an order of a judge for a writ of quo tear- ranto thnt the respondent should be directed to appear at the place mentioned in the petition. Bureau dc Noiirna^ui <& Oouin, 6 R. L. 40, S. C. 1873. 5. A prima facie case must be made out by affidavit before the writ will issue. Qibb v. Poaton, 16 L. C. R. 257, S. C. 1866. 6. A writ under G. S. L. C. c. 88 must be addressed to a bailifi of the S. C. , to be by him served and returned, and not to the defendant. Benry v. Simard, 16 L. C, R. 273, S, C. 1866. 7. A petitioner causing a writ to issue in term cannot proceed in va- cation, but must proceed in term. Hetiderton v. Loranger, 13 L. C. J. 143, S. C. 1871. 1018. The complainant, in addition to the allegations concerning the usurpation and illegal detention of the office, may, in his petition, declare the name of the person who has a right to such office or franchise, and allege such facts as are necessary to shew such right, and the court may in such case adjudicate upon the claims of both parties. Ibid. s. 6. 1010. If the complaint is well founded, the judgment orders the defendant to be ousted and excluded from the office, franchise or privilege, and condemns him to pay costs to the complainant ; the court or judge may also condemn the defendant to pay a fine not exceeding the sum of four hundred dollars, which must be paid over to the Receiver- General of the Province. J&icZ. 8. 7, §§ 1, 2. 1090. If the complaint is dismissed, the complainant must be condemned to pay all costs. Ibid. § 3. 1031. Any person whom the judgment declares to be en- titled to the office, or the franchise, may, after taking the oath of office, and giving such security as may be required /^ 604 CORPORATIONS OR PUBLIC OFFICES, ARTS. 1021-1022, by law, take upon himself the exercise of such office or fran- chise, and may demand of the defendant all keys, books, papers and insignia, in the possession or custody of such defendant and belonging to such office or franchise, and in the case of neglect or refusal to deliver up the same, the court may order the sheriff to take possession of such keys, books, papers and insignia, and to deliver over the same to the person adjudged to be entitled thereto, without preju- dice to any criminal proceedings to which such defendant may be liable. Ihid. a. 8, §§ 1, 2. h^ ft %: m SECTION III. OF MANDAMUS. lOSKI. In the following cases : \ 1. Whenever any corporation neglects or refuses to make any election which by law it is bound to make, or to recog- nize such of its members aa have been legally •'hosen or elected, or to reinstate such of its members as may have been remove '^ without lawful cause ; 2. Whent, ^y person holding any office in any corpo- ration, public oov y, or court of inferior jurisdiction, omits, neglects or refuses to perform any duty belonging to such office, or any act which by law he is bound to perform ; 3. Whenever any heir or representative of a public officer omiis, refuses or neglects to do any act which, as such heir or representative, he is by law obliged to do ; 4. In all cases where a writ of 'mr..tdamu8 would lie in England ; Any person interested may apply to the Superior Court or to a judge in vacation and obtain a writ, commanding the defendant to perform the act or duty required, or to show cause to the contrary on a day fixed. C. 8. L. C. c. 88, s.U. I. A maiidarmisynW not lie from a judgment of a municipal council. in a matter of controverted elections. St. Louis Exp. , 2 L. C. R. oOO, S. C. 1852. -1022. OF MANDAMUS, AttTS. 1022-1023. 505 •e or f ran- ys, books, y of such ise, and in 8ame, the such keys, he same to lOut preju- L defendant uses to make J, or to recog- lly chosen or as may have in any corpo- Liction, omits, Lging to such I perf o?'m ; public officer ,, as such heir would lie in lerior Court or imanding the [ed, or to show C.c. 88, s. 11 • lunicipal coxiucil, 2 L. 0. B- 500, 2. Nor to compel a fabrique to repair the fences of a graveyard. Vimellette v. The Fabrique of St. A., Q L. C. R. 484, S. 0. 1860. 3. But it may be issued to compel a fabrique to restore an officer of tli J Civil Government to a banc d'honneur. Rex Exp, v. The Fabrique of Pointe aux T., 2 Rev. de L6g. 63 A 441, K. B. 1821. 4. Or to compel a registrar to deliver a deed registered in his office. Doutre v. Gagnier, 13 L. C. J. 306, S. 0. R. 1869. 6. The Superior Court has no authority to issue a inatuiatMis to compel the License Commissioners under 37 V. , c. 3, (Q. ) to grant a license. Privettv. Sexton et al. 18 L. C. J. 192, S. 0. 1874. 6. A writ of mandamiu will not lie to compel a railway company to deposit an amount awarded for expropriation by arbitrators, bourgoin V. The Montreal 0. cD 0. By. Co., 1 Legal News, 210, S. C. 1877; 21 L. C. J. 217. 7. Nor to compel the City of Montreal to appoint commissioners for the purpose of fixing the amount of indemnity to be paid to the owners uf property affected by the change of level of a street, although no grade for such street had been formally determined previously. Joseph V. The City of Mo7itreal, 1 Legal News, 210, S. 0. 1877 ; 21 L. C. J. 232. 8. The court may grant an order to restrain a person from commit- ting an illegal act, without having recourse to a mandamus. Bouryuin et al. v. Malhiot et al., 8 R. L. 396, S. C. 1870. 9. The writ will lie to compel a secretary of a corporation to allow a shareholder to have communication of its books. Hibbard v. Barsahm, I L. C. L. J. 98. S. C. 1865. 1033. The application is made by a petition, supported ivith a^davits setting forth the facts of the case, and pre- sented to the court or judge, ivho nuiy thereupon order the vnnt to issue ; and such writ is served in the same, mai.ner as any other wHt of summons. Ibid, s. 12. 35 Vict. c. 6. (Que.) : 22. Article 1023 is amended so as to read as follows : '•' 1023. The application is made by a petition supported with an affidavit, affirming that the facts set forth in the said petition are true, and presented to the court or judge, who may thereupon order a ^vrit of maiulamus to issue ; and such writ is served in the same manner as any other writ of summons." Vide, 35 Vict. c. 6, s. 21 (Que.) under art. 998 supra. 500 CORPORATIONS OR PUBLIC OFFICES, ARTS. 1023-1027. 1. A judf(e in chambem may, even during term, grant an applica- tion for a writ of maminmui under art. 1023 of the Code of Procedure as amended by Q. 35 Vict. cap. 0, sec. 22. Smith dt Sexton, 18 L. C. J. 193, S. C. 1874. 2. The affidavit in support of thu petition may be in general terms. Ibid. 3. The petition must set forth sufficiently the interest of the peti- tioner, and that he has no other means of procuring what he claims. Provost V. M(U8on, 5 R. L. 556, S. C. 1874. 4. Except in case of urgent necessity the prothonotary has no power to issue such writ, and though his proceedings have since been ratified by a judge, they will be annulled. Awjer ceu made on any land thu propurty of othur persons, exoavatiouH or works of duiuolition or construction ; or whonuvor such corporation actH or takes any procuedin^, buyond its power, 5, and also that the terms of the contract permitted the Government to cancel it if the work was not duly prosecuteil. Jofy et al. d- Mucdonald, 2 Legal News, 2, Q. B. 1878. 2. A party suffering from an imjust expropriation by a railway company may demand a writ of injunction to prevent the company from exercising its right of expropriation and possession until the amount of indemnity be determined. Bourgoin v. The Montreal N. C. Ry. Co., 19 L. C. J. 57, Q. B. 1873. Vide Qut- bee Railway Act INJUNCTIONS, AUT. 1030. 609 imviuy ful- f act of in- cauaoH itoi- peranns, '>r nw iiorsous, aiiovor such , or without kct of incur- )»8ion of i>no I work to be jr through a auy written I or company, ions, niiiniotl or persons It- is in disi'Ute, itljudicatcil on have granted i\) tirui, either isolution, from ,ip agreement, 1 apply to per- Bentatives of a kpaasin-j; on the romoving any has any riyht linsttheCommis- \t Engineer t<> re- lie contractor was tovemmeut acted I of the contract [duly prosecuted. Lay company may JrciBingit« right of |y be determined. 1S75. ri'iiQuf 2. The application for the writ of injunction ahall ho made by [icti- tion, supported by one or more aftidavita aettin^ forth the facta of the coae, and accompanied by Hnch (h>cunieiitnry evidence aa may be necea- aary to catabliah the petitioner's ri^dlt to the aatiafaction of the court or uf a jull^e thereof, and the proceedings thereon ahall be in conformity with articles 1)98 to luu6 incluaively, and with article 1023 of the Code of Civil I'roceduro. 3. Except in cases of urgent necessity, the court or a judge thereof may. in their discretion, order tliat notice of the presentation uf Huch petition be sorved upon the adverse party, in the time and manner the said court or judge shall see Kt to order. '*^ 4. Nevertheless the writ of injunction shall nut issue, unless the per- Hon applying therefor first gives good and sutficiont security, in the manner prescribed by and to the satisfaction of the court or a judge tlieroof, in the sum of six hundred dollars, or any other higher sum dxed by the said court or judge, for the costs and damages, which the defendant, or the person against whom the writ of injunction is di- rected, may sufler by reasim of the issue thereof. Upon tlie return of the writ, the court or a judge thereof may order that such security shall bo increased to such amount as it may be deemed expedient. M. A writ of injunctiun in Mynonymous with a writ of mandamuH, and Hubjuct to the same procedure. Houtr/oiii v. The Montreal N. C. Ry, Co., 19 L. C. J. 57, (I B. 187.5. 4. The courts and judges here have the jMiwer which existed in England and the United States under the rame of injunction, and in France under another name, to restrain parties to a suit from doing anything that might change their rewjiec- tivu (msitions from what it was at the beginning of the suit. Cartel* v. Breukt;i ttiM.,2 il L. R. 232, S. (J. 1876. 5. An injunction will lie under the Merchant Shipping Act of 1854 (Imp.), «. 05, with regard to a ship about to be built enregistered under the provisions of the Canada Statute 36 Vict. c. 128, s. 36. Dinniny et al. v. Wurtele et «/., 1 LegalNewB33, Q. B. 1877. * 1. In the affidavit in support of a demand for a writ of injunction, it is not sufficient to allege grounds of belief and information merely. Kane v. Montreal telegraph Co., 20 L. C. J. 120, S. C. 1876. 2. Notice should be given of an application for a writ of injunction. Kane v. Montreal Telegraph Co., 20 L. C. J. 120, S. C. 1876. 3. The petitioner at whose instance an injunction was ordered to issue may be allowed to add to the conclusion of his prayer, " That he be reinstated in possession " if the other party has disregarded the writ. Macdonald v. Joty e al. 1 Legal News, 460, S. C. 1878. 510 INJUNCTIONS, ART. lOSO. % ■ 6. The writ of injunction enjoins the adverse party to appear before the court or a judge thereof to answer the petition, and to suspend all acts, proceedings, operations or works respecting the matters in dis- pute under pain of all legal penalties. 6. The writ of injunction is served in the same manner as any other writ of summons ; but, if found necessary, the court or judge may prescribe any other mode of service. 7. Proceedings commenced before the court in term may be con- tinued before a judge in vacation, or even during term, and, in like manner, proceedings commenced before a judge in vacation may be continued before the court in term, or before any judge in chambers even during term.* (2.) In order to avoid doubt it is hereby declared and enacted that in any proceeding commenced under this Act, any judge of the Superior Court shall, at every stage of such proceeding, have the same power to act therein as the judge before whom such proceeding was com- menced. ^ 8. An injunction may, in any of the cases mentioned in section one of this Act, be granted incidentally upon petition, without the formal- ity of a writ, in a cause pending before the Superior Court, either by the Court or by a judge in chambers, even during term, upon security being given as hereinbefore provided for ; and the procedure shall be thereafter conducted to judgment on the incidental proceeding in the same manner as on a writ of injunction. (2.) And in any proceeding instituted under this Act, any additional injunction that may be deemed necessary by the court or a judge thereof may, upon petition, after due notice, -be granted by an inter- locutory order, for such length of time and upon such conditions, as to security or otherwise, as the court or judge may deem reasonable. And such additional injunction, as well as the injunctions contained in the original writ, may, from time to time, be suspended as the court or judge may deem necessary, and for such period and upon such conditions as to security or otherwise as the court or judge may deem reasonable, and may afterwards from time to time be renewed upon such conditions, as to security and otherwise, as by the court or judge may be deemed riglit. 9. Any judgment, rendered by a judge out of court under this Act, shall h°i Bnhjeci to review and appeal in the same manner and to the * 1. Where an injunction has been granted and the partieti have joined issue on the merits, it is too late to move to quash. Bourgoin v. The Montrtal N. C. Bit. Co., 19 L. C. J. r^7, Q. B. 1875. INJUN'CTIONS, ART. 1030. 511 pear before suspend all tters in dis- OB any other judge may may be con- and, in like ktion may bo in chambers lacted that in the Superior e same power ling was corn- in section one ut the fonual- nirt, either by upon security edure shall be ceeding in the any additional urt or a judge jd by an inter- conditions, as im reasonable, ions contained pended as the riod and upon or judge may me be renewed )y the court or Under this Act, iner and to the liave joined issue Mmtreal N, C same extent that it would have been subject to appeal or review, if rendered by the court in term. 10. Any final judgment under this Act taken into review or appeal and any interlocutory or provisional order under this Act from which an appeal shall be allowed by the Court of Queen's Bench, shall be executed and in force provisionally, notwithstanding and without pre- judice to such appeal or review ; but the Superior Court, in review, or the Court of Appeals, as the case may be, may in their discretion provisionally suspend the injunction.* 11. The judgment, if in favour of the petitioner, pronounces the injunctions required, adjudicates as to costs, and must be served upon the adverse party. 12. If a party against whom the injunction is directed, violate or refuse to obey the injunctions laid upon him, either by the writ or by any interlocutory or final judgment, the court or a judge thereof may cause to be destroyed, whatever may have done in contravention to the injunction, if it be practicable ; also, the court or judge thereof may punish the party contravening by an imprisonment not exceeding thirty days, but which may bo repeatedly inflicted until the party obeys the mandate of the court or judge, t (2.) If the party violating the injunction be acompany or corporation, such company or corporation may be condemned to pay a fine not ex- ceeding two thousand dollar-a, but which may be repeatedly inflicted until they obey the mandate of the court or judge. (li.) The party aggrieved by the disobedience of such person, company or corporation may also recover from the party or parties disobeying, such damages as he may show that he has sustained. * 1. A party seeking relief from an injunction, and whotie motion to dissolve it has been rejected by the lower courts, may, in the discretion of the cl art, be per- mitted to appeal, though he api^ars to have disregarded the injunction, and to be in contempt of court. Joly et al. d- Matdonald, 1 Legal News, 448, Q. B. 1878. 2. M. contractor with the Quebec Government for building a railway, learning that the Government, under 32 Vict, c. 15, m. 179, 180 (Que.), was about to take possession of the road which was not completed, o1.)tained a writ of injunction to restrain the Govemm.fent from interfering. The latter proceeded to take pos- sesttion, and a motion to dissolve the injunction being rejected, obtained leave to appeal to the Q. B., and an order to suspend the injunction pending the ap- peal was granted, although the wi-it had been disregarded. July d al. d; Mac- dnnald, 1 Legal News, 461, Q. B. 1878. 1 1. The court will not consider an application to revise an order for injunc- tion which prima facii appears to be legal anc' valid, while tli'^ applicants re- main in contempt. Macdoiuild v. Joly et al, 3. i^St. GuiltciiMne, 335, Q.B. 1877. ,TENT. Crown may be r Court : means of some il fact has been jdge or consent; ike or in igno- ANNUL! JNO OP LETTERS "ATENT, ARTS. 1034-1038. 515 3. When the patentee, or those claiming under him, have done or omitted to do some act, in violation of the terms and coiiditions upon which such letters patent were granted, or for any other reason have forfeited their rights and interests in such letters patent. C. S. L. 0. c. 89, s. 5. 103tS. All demands for annulling letters patent may be made by suits in the ordinary form, or by scire facias, upon information brought by Her Majesty's attorney-general, or solicitor-genei-al, or any other officer duly authorized for that purpose. Ibid. 1. A writ of scire facias is not necessary to obtain the revocation of letters patent, but — Held, that in the present case the Crown, repre- sented by the officers of the ordnance, could waive the prerogative of such writ and claim, by the usual and ordinary process, the cancella- tion of letters patent making a grant or concession of wild lands, on which the respondents had based their action. The Principal Officers uf Artillery & Taylor et al. 1 L. C. R. 481, Q. B. 1851. 2. Writs of scire facias to cancel letters patent can only issue at the suit of the Crown. Paradis exp. 7 L. C. J. 130, S. C. R. 1854. 3. And cannot be brought by a private individual. Pacaud & Rifk' aby, 1 Q. L. R. 245, Q. B. 1875. 4. The Crown alone has the right of demanding that letters patent granted under the great seal of the Province be annulled. The Union Naiigation Company <& Eascony, 20 L. C. J. 306, S. C. 1876. 1036. The information is served upon the person who holds or relies upon such letters patent, and is heard, tried and determined in the same manner as ordinary suits. Ibid., s. 2. t037. An -'appeal lies from the final judgment rendered upon such information, provided the writ of appeal issues within forty days from the rendering of the judgment. Ibid., 8. 6. 1038. In the case of letters patent granting lands, thi mit may he brought before the kiuperior CQurt by any in- w i ■'! [I f 516 OF HABEAS CORPUS, ARTS. 1038-1040. terested party, with the observance of the formalities of ordi- * wiry suits, as provided in cftapter twenty-two of the Con- solidated Statutes of Canada. C. S. G. c. 22, a. 15. 1039. Letters patent granting lands may also he can- celled in accordance with the provisions contained in the twenty-second chapter of the Consolidated Statutes of Ca- nada. 32Vict.,c. 11 (Qu«.); "^ 33. Articles 1038 and 1039 are hereby repealed. ll CHAPTER TWELFTH. OF HABEAS CORPUS AD SUBJICIENDUM IN CIVIL MATTEltS, 1040. Any person who is confined or restrained of his liberty, otherwise than for some criminal or supposed crim- inal matter, or any other person on his behalf, '">ay apply to any one of the judges of the Comt of Queen's Beroh, or of the Superior Court for a writ addressed to the p^i-son under whose custody he is so continod or restrained, ordering th-i latter person to bring him before the judge who granted the writ, or before any other judge of the same court, together with the cause of his detention, in order to exam- ine whether such detention is justifiable. C. S. L. C. c. Co, S8. 20-25. 1. The object -f haheaa corpus is to see that no one is illegally de- prived of his libeiiy, auil not to determine tho respective rights of parties over one another, and cannot therefore be used by a father to enforce his right to the custody of his child, iitojjpelben v. Hull, i! Q. L. R. 265, S. C. 1876. 2. Judgment ordering the imprisonment of a defendant until pay- ment of debt, interest and costs, and also the costs of the rule, ^'' li not justify a commitment which includes also sheriff's costs. Martin txp.,'22h. C. .1. 88, Q. B. C. 1877. OF HABEAS CORPUS, ARTS. 1040-1041. 617 tea of ordi- >f the Con- ilao he can- ined in the utes of Ca- VIL MATT^ilS. trained of his upposed crira- , -^ay apply to s Beroh, or of e p ji-son under ., ordering th-^ wbo granted ie same court, [order to exam- S. L. C. c. 05, one is illegally de- Upective rights of Led by a father to Ippelben v. Hnll, 'i Ifendant wntil pay- of the rule, ^'"'i lif'a costs. Martin 3. Writs of haheaa corpxu may issue in niattors of commitment by either house of parliament. Lavoie exp., 5 L. C. R 90, S. C 1855. See Monk exp., 8. R. 120, K. B. 1817. 4. A person who has been discharged upon a habeas corpus cannot be arrested a second time when no new or other cause of arrest is dis- closed, though it appear that tho ■..arrant was quashed in Chambers by a judge on grounds which were subsequently held by the Court to be insufficient. Duvemay exp., and CoU exy., 19 L. C. J. 248, Q. B. 1875 ; Prince exp., 16 L. C. J. 331, Q. B. 1871. 5. A discharge may be granted upon a petition for a writ of habeas corpus in a case in which the defendant is detained in gaol under civil process. Fourqnin et al. exp., 16 h. C. J. 103, Q. B. 1871. 6. The writ will be granted when a person is confined for rebellion d justice. OrSbassa exp., 16 L. C. J. 331, Q. B. 1871. 7. A writ of habeas corpus will not be granted tc liberate a prisoner charged with process in a civil suit, even though tho writ of execution in virtue oi which ho was arrested appear to be irregular, if it is with- in the scope of the jurisdiction of the court, from which it issued. Healy exp., 22 L. C. J. 138 ; 1 Legal News, 103, Q. B. C. 1878; Tlmipsonexp., 82 L. C. J. 89 ; Ilyid. 102, Q. B. C. 1878 ; Coulter exp., 22 L. C. J. 85, Q. B. 1877 ; Donahue exp. 9 L. C. R. 285, S. C. 8. Where a person is detained under legal process in a civil suit under C. C. P. 782, he cannot obtain the benefit of a hahea-s corpus 'f itimolves a review of the judgment. Saunderson exp., 8 P.. L. 108, Q. B. C. 1876. 9. The petitioner may however show there is no judgment ordering his imprisonment, and if he dons so, he will be liberated. Cutler ap., 22 L. C. J. 86, Q. B. 1877. See art. 1062 post. 1041. The application must be supported by an affidavit, shewing that there are probable and reasonable grounds for the application. Ibid. 1. The petitioner was imprisoned for hiM'ing failed, as guardian, to produce goods seized, and he asked for habeas corpus in order to be liberated as he was a minor. The judge refused the application as there was no notice to the party interested in maintaining the c able ground for the issue of the writ. The petitioner was allowed to withdraw his application, and it was intimated that if it were renewed, which might perhaps not be neces- sary in the interests of the petitioner in view of Art. 972, C. C. P., the applicant should be prepared to meet the difficulty arising from C. 8. L. C. c. 95, s. 26. Gauverau Exp. 1 Legal News, 63, Q. B. C. 1878. 1049. The writ issues in the name of the sovereign, is sealed with the seal of the court to which the judge belongs, and is attested in the same manner as any other writ. It is returnable without delay, unless a term of the court is so near that the writ cannot be executed before such tei-m, in which case the judge may order the writ to be returned during term ; and if the end of the term be so near that the writ cannot properly be executed during the term it may be made returnable during the following vacation. Ibid, and s. 21, §2. 1043. The writ is served personally, or at the place where the person is confined or restrained, speaking to a doniej-tic servant or an agent of the person to whom it is addressed, and leaving the writ itself ; and the return of service is made upon a certified copy. Ibid. s. 21. 1044. In default of compliance with the writ of hahem corpus, the person iipon whom it was served is held to be guilty of a contempt of the court under whose seal the writ issued, and the judge may grant a rule under the seal of the court, returnable before such judge or before the court, for his imprisonment. Ibid. 104(1. Upon the return of the writ of habeas corpuf, or of the rule mentioned in article 1044, the judge proceeds, as soon as ho conveniently can, to examine, by means of deposi- tions under oath or aflirmation, into the truth of the fact* alleged, and decides accordingly. Ibid. s. 22. OP HABEAS CORPUS, ARTS. 1045-1/»51. 619 kble or prob- 1, and it was lotbe necos- C. C.P.,tbe ig from C. S. B. C. 1878. overeign, is tdge belongs, r writ. It 18 urt is so near irm.in which timed during that the writ 1 may he made nd. itncl 8. 21, he place where to a domej^^tic is addressed, service is made writ of ho.heifM is held to be seseal the writ . the seal of the •e the court, fov xbeos cor}yv'. ov dge proceeds, as means of deposi- uth of the fact^ 2. 1. Where a coiuinitment is illegal on it« face, the court will not wait until the committing magistrate has been notified to produce the papers, but will order the writ to issue inatanter. Meatier Exp. 1 L. C. L. J, 71, Q. B. 1806. 1046. If the judge before whom the writ is returned in vacation is in doubt as to the truth of the facts alleged in the return, he may admit to bail the person so confined or restrained, upon his entering into recognizance with one or more sureties, or, in the case of infancy or coverture, upon security being given by recognizances, in a reasonable sum for his appearance before the court on a fixed day during the next term, and from day to day, to abide .such fder as the court may make. Tbid. 8. 22, § 2. I04T. The writ of habeas corpus is thereupon trans- mitted to the court, together with the recognizance and ..i the papers connected with the application, and the court thereupon makes such orders as to justice may appertain. Ibid. § 8. 1048. The court may direct one or more written is.sues for the trial of the facts alleged in the return, and such issues are tried [either by affidavit or by the examination of witnesses before the court or judges, as such court or judge may think proper.] Ibid. 1049. The same proceedings are had in term in the Court of Queen's Bench and in the Superior Court, lespectively, for controverting the truth of the return. Ibid. s. 2.3. lOcSO. The court or the judge may pronounce upon all costs incurred in the issuing, contestation or execution of the writ of habeas corpus. Ibid. s. 24. lOtSl. Whenever a writ of habeas corpus has been once refused by any judge, the application for it cannot be re- 520 OF HAKKAt CORPl'N, AKTS. 1061-1052. newed before him •>! l>efore any other judge unless mw facta are alleged ; but tiie application may be reri* wed before tho Court of Queen'H Bench at its next sitting in apj nal at the place where apjionlH are brought from the district in which the application waw made. Ihid. «. 28. 1. Where an ai>i)lication liiiabcen refuHcd by (t judge in ChambefR, judicial enmity will prevent another judge frrim uiitortainingit. Duna- hue E'X}>. 9 L. C. R. 286, 8. C. lOffd. The provisions of this chapter cannot be extended to the dischargo of any person imprisoned for debt or under any action or process in civil matters. Ibid. s. 25. 1. A writ will Ibbuo to liberate aperson charged with procosw in a citi: «uit issued out of a court of inferior jurisdiction, when it appears on the fact- of the proceedings that they were ultra virea. L'hamfv. Vitiu i(- Vim:, !8 L. C. J. 214 8. C. 1874. See casoa iiinlor Art 1040, mpra. OP THE CIRCUIT COURT, ARTS. 1053-1054. 621 w facts fore the il at tho n which Chambers, it. Dwia- '.■=;(. , BOOK THIRD. OF THE CIRCUIT COLR extendeil , or under QRH in a oiti: t appears on TITLE FIRST. POWERS AND JUKISDICTION OF THE COURT. lOffS. The Circuit Court has ultinmto jurisdiction to tho exclusion of the Superior C' nrt : 1. In all suits wherein tlie amount or the value of the thing demanded is less than one hundred dollars, saving the exceptions contained in the following article, and such cases as fall exclusively within the jurisdiction of the court of Vice-Admiralty ; 2. In all suits for Hchool-taxes or school-fees, and all suits concerning assessments for the building or repairing of churches, parsonages and church-yards, whatever may be the amount of such suits. 1. Held, on an exception decliiMtoire, that the Superior Court has no jurisdiction to hear suits for the recovery of school taxes. The School Commissioners of Hoclielaga v. Hoyan et al. 20 L. C. J. 298, S. 0, 1876. 1054. The Circuit Court has original jurisdiction, to the exclusion of the Superior Court, but subject to appeal : 1. In all suits in which the sum or the value of the thing demanded amounts to or exceeds one hundred dollars, but does not exceed two himdred dollars, saving the exception contained in the second paragraph of the preceding article ; 2. In all suits for fees of office, duties, rents, revenues, or IMAGE EVALUATION TEST TARGET (MT-3) L^/^.-"*« ^ A 4^\ ^ 1.0 i.i k&t2A lis itt Uii |22 g la i 2:0 Wtau IL25 III 1.4 Hiotographic Sdaices Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MSSO (71«)«72-4S03 522 OP THE CIBCUIT COURT, ART. 1054. Wi h 7/- sums cf money payable to the crown, or which relate to any title to lands or tenements, to annual rents, or such like matters whereby rights in future may be bound, even though the amount claimed be under one hundred dollars. G. S. L. C. c. 77. 8. 89, c. 79 88. 1-2:— c. 15, ». 123 ; Orcmge v. Dupont, Appeal, Sth Sept. 1865. 34 Vict. 0. 4, (Que.) : 9. Article 1054 ia hereby amended by inserting at the beginning thereof the words "Except in the Districts of Quebec and Montreal." 35 Vict. c. 6 (Que.) : 31. Notwithstanding the 9th section of the act of this Province — 34th Victoria, chapter 4, the Circuit Courts within the Districts of Quebec and Montreal, other than those sitting in the Cities of Quebec and Montreal, have had, since the enactment of the said 9th section, and shall continue to have the same jnrisdiction in appealable suits, as they had before the said 9th section was enacted. See 31 Vict. c. 30, s. 4 (Que)., as to the jurisdiction in actions for the recovery of seigniorial rents ; and 31 Vict. o. 11 (^e.) as to pro- ceedings for the recovery of crown lands after the revocation or can- cellation of the sale. 1. Evocation of causes from the Circuit Court to the Superior Court can only be had in the cases mentioned in articles 1054 to 1058 of the Code of Procedure. The Corporaticii of the County of Drum- mond V. The Corporatioi\ of the Parish of St. ChiUlaume, A R. L. 706, S. C. 1873. ^_,..., ^. ,,. ^., ;, , v» ' ■ :t-::c, .i:./i^- ■ 2. The Circuit Court has no jurisdiction over possessory actions. McKay v. Cook, 13 L. C. J. 321, Q. B. 1869. 3. The Circuit Court has jurisdiction conformably, with C. S. L. C. cap. 24, sec. 49, ss. 6, in an action for the removal of encroachments. La Corporation de St. Martin pealable soits, n in actions for (Que.) as to pro- vocation or can- to the Superior jles 1054 to 1058 'ounty of Drum- tne, 4 R. L. 706, jaessory actions. with C. S. L. C. encroachments. xmin (U Peage lefendant, who is bt, be condemned property, etc., is 3ourt. Bodier v. 16 L. C. J. 41, lition fortheresi- lent of the price, when the value of the immoveables does not exceed $300. Oabwiry v. Leolaire, 4 11. L. 74, C. C. 1872. 6. The Circuit Court has no jurisdiction in an action for the resilia^ tion of a lease where the annual rent is upwards of $200, although the amount demanded be less. Dorion tt Pmilin, 4 R. L. 666, C. C. 1872. 7. The Circuit Court cannot take cogmsanoe of the validity of a municipal valuation roll. Laurent v. The Corporation of the VUiage of St. Jean Baptiate, 17 L. C. J. 192, S. C. 1873. 8. Where an action in demolition of a servitude was brought before the Circuit Court — Held, that the value of the servitude must be al- leged and proved to be under $200, in order to establish the jurisdic- tion of the court. Dorval v. Chevalier, 14 L. C. J. 263, S. C. R. 1870. 9. A hypothecary action for $36 is not triable in the Circuit Court.. Afowe V. CoU, 3 Q. L. R. 322, C. C. 1877. lOdff. [The Circuit Court may take cognizance, upon evocation, of any suit brought before the Commissioners' Court for the summary trial of small causes, in the cases secondly enumerated in the preceding article.] C. 8. L. G. c. 94, 88. 29-30. 1. In a non-appealable case, returnable out of term, the defendant may evoke it at any time before plaintiff has obtained acte of foreclos- ure. DeBeaujeu et vir v. McNamee, 17 L. C. J. 50, S. C. 1872. 1096. The Circuit Court has also •concurrent jurisdiction with the Superior Court, by means o" certiorari, over judg- ments rendered, within the limits of the district or circuit for which it is held, by the Commissioners' Court mentioned in the preceding article, or by justices of the peace, where- ever a certiorari lies. C. S. L. G. c. 79, 8. 3, § 2. 1. The Circuit Court has no jurisdiction by means of certiorari over judgments other than those rendered by Commissioners' Courts or by justices of the peace. Exp. Long v. Blanchard . ' 'the maimer of oonducting 8uit8, actions or proceedings in the Circuit Court. Whatever may or must be done by the prothonotary as regards proceedings in the Superior Court, may or must bo / ' done in like manner by the Clerk of the Circuit Court, as regards proceedings before the Ir.tter court, except, however, the judicial powers conferred upon the prothonotary in the absence of a judge. The clerk of the Circuit Court has the power of adminis- tering oaths whenever they are required by law or by rules of practice. « ,v ,^^. ^ - a /S. X. a c. 79, sr ^ 4. . - i ' ' , > An olvu writ olji. fa. de terris, in a case in which judgment was ren- dered in the 0. 0., cannot legally be issued and signed by the protho- notary of the S. 0. Macdoncdd et al. v. Primont et uas. <6 Lague et J- Lower Canada, District {or Circuit) < .} IN THE CIRCUIT COURT. n ,, , A. B., of : CD., of "^ '' - and &c. &C. Plaintiff; Defendant. [L. S.] Victoria, by the Grace of God, of the United King- dom of Great Britain and Ireland, Queen, De- fender of the Faith: To C D., the defendant above mentioned. Whereas A. B., the plaintiff aforesaid, demands of you the sum of due by you to him for (state suffi^ntly the cause of action) which said sum you have (as he saith) refused to pay him. {If the action he to re- caver a thing vyrongfvUy detained, &c., vary the statement of OF SUMMONS, ARTS. 1063-1067. 529 for the Su- , saving ^he c. 83, 88. 42, COURT. Plaintiff; Defendant. the cause of action accordingly. If there he a declaration annexed, refer to it ; and omitting the ivoi'cla after " the plaintiff aforesaid," say, " hath, by his declaration hereunto annexed, made complaint against you in the manner therein set forth.") And the plaintiff prays judgment accordingly. You are therefore required to satisfy the demand of the said plaintiff in this cause, with costs, or to appear in person or by your attorney before our said court, at the court house, at in the said circuit, at o'clock in the forenoon (omit these ivords if the case be appealable), on the day of ' ' instant (or next), to answer the said demand ; otherwise judgment may be given against you by default. In witness whereof, we have caused the seal of our .«*aid court to be hereunto affixed, at this day of in the year of our Lord one thousand eight humlredand E. F., Clerk of the said coiu-t for the said district (or circuit). 1006. The delay upon summons is ii\-.^ intermediate days, when the distance from the defendant's domicile to the place where the court is held does not exceed five leagues, with the ordinary extension when the distance is greater. lUd. s. 170, § 2. 1007. When the writ of summons is to be served in another district, it may be addressed to the sheriff or to a bailiff of such other district. It may also be so addressed when it is to be served in more than one district. In the latter case, as many originals of the writ of sum- mons must be issued as there are districts in which it re- quires to be served. Ibid. s. 170, § 4, s. 171. ' 3+ 580 or THE CIRCUIT COURT, ARTS. 1068-1070. 1068. In the case mentioned in article 1067, the writ of summons issuing from the Circuit Court of a district may be served by any bailiff of such district ; but he is entitled to no more costs than if the service had been effected by the nearest bailiff to the residence of the defendant thus sum- moned. Ihid. 8. 172. CHAPTER SECOiND. PROVISIONS CONCERNING APPEALiLBLE OASES. . \ SECTION 1. 'v " iflli^ PROCFEDINGS BEFORE CONTESTATION, OR IN UNCONTESTED SUITS. 1060. The provisions respecting appearance and default, election of domicile, judgments by default or upon confession, filing of exhibits and proofs ex parte, in the Superior Court, apply also to appealable cases in the Circuit Court. C. S. L. a c. 79, 8. 27, c. 83, s. 42. SECTION II. OF CONTESTATION. \ 1070. The contestation and pleadings in appealable cases in the Circuit Court are subject to the provisions concern- ing the same matters in the Superior Court, except as re- gards the delays which are regulated as follows : The delay for filing preliminary exceptions is four days, and that for answering the same is five days. OP PROOF AND HEABINO, ARTS. 1070-1074. 531 le writ of trict may is entitiutl ted by the thus sum- ■".K 3ASE8- UNCONTESTED and default, >on confession, iiperior Court, ourt. C.S.L ppealable cases Lsions concern- ,, except as le- Iws : a is four days, The delay for filing any other pleading necessary to com< plete the issues is five days. The delay for pleading to the merits is five days from the appearance of the defendant. If no plea be filed within these delays or afterwards within the three days after the service of a demand of plea, the party in default is foreclosed by an act '^f the clerk of the court vrithout any other pro- ceeding. There is a like delay of five days, on pain of fore- closure, between each subsequent pleading allowed by law, without any demand of plea being necessary. C. S. L. C. c. 83, 8. 180. • * • SKCTION III. OF PROOF AND HEARING. 1071. Proofs may be made on every day during a term of the Circuit Court. Ibid. a. 181. 1079. Contested cases are inscribed at the same time for proof and for hearing on the merits. Ihid. t*. 182 ; 25 V, c. 10, s. 11. ' 1073. Notice of such inscription must be given to the opposite party, with one intermediate day's delay, if notice is given in term, and four intermediate days if it is given in vacation. C L 8. (I c. 83, s. 184. 1074. The evidence is given orally, without notes thereof being taken, unless, before the commencement of the proof, the parties, or one of them, files a declaration in writing, requesting that notes of the evidence be taken down in writing, in which case it is taken in the manner provided for proofs before the judge in the Superior Court. After the witnesses have been examined, the parties are heard upon the merits, unless the court deems it advisable to adjourn the case on account of the absence of some material witness or evidence. Ibid. 8. 182 ; 25 V. c. 10, 8. 11. 532 OF THE CIRCUIT COURT, ARTS. 1075-1080. "US i, ' < i 107ff. [With the consent of all the partieH the proof may take place on any juridical day in or out of tenn, and may bu written down at length, and the clerk of the Circuit Court may receive the depositions and swear the witnesses in the absence of the judge ; or it may Ije taken before an examiner ; in each case according to the rules and in the manner prcBcribed for the Superior Court.] See 33 V. c. IH, s. 1 (Que.), under art. 239 ante. 1070. No person residing at a distance of more than fifteen leagues from the place where the proof is to be taken, or beyond the limits of the circuit, is bound to attend as a witness, unless he is summoned in conformity with the pro- visions contained in articles 246 and 247. C, S. L. C. c. 83, «. 186, 0. S. a c. 79, 8. 12. ' 1077. Whenever a demurrer has been filed, the case may, nevertheless, be inscribed for proof and hearing, reserving the argument upon the law issues until after the proof. C. S. L a c. 83, 8. 183. 1078. The court may iit any time order the proof to be had, or a witness or a party to be examined in another cir- cuit, and may order that the record, or a part thereof, be transmitted for that purpose, according to the provisions- contained in article 241. Ibid., 8. 185. « I SECTION IV. * , OF JUDGMENTS. 1079. The provisions which relate to judgments and to costs in the Superior Court apply also to judgments rendered in Jthe Circuit Court. Ibid., a. 42. 1080. Whenever the judge who heard the case is unable, by reason of sickness or other cause, to render judgment in person, he may transmit the draft of the judgment, certified OF THE EXECUTIOS OF JUDC'Mt:NT8, AUTM. 1080-1081. 633» of may ad may Circuit itnesses jfore an I in the by himself, to the clerk, who in thereupon bound to record thti •lamo and to read it in open court on the next juridical day in term ; and the judgment hits then the Hauie force and effect as if it had been pronounced by the judge on the day on which it was thus read. C. 8. L. 0. c. 70, «. 16. See 38 Vict. c. 10 (Que.), ante, under art. 409. ore than be taken, ,tend as a \ the pro- a c. 83, «. 5 case may, , reserving proof. C. proof to be nothev cir- thereof, bo provision^' lentsand to [nts rendered ise is unable, judgment m Cent, certified SECTION V. , OF THE EXECUTION OF JUDGMENTS. 1081. [Writs of execution for the payment of n sum of money issue against the moveable property of tiie debtor situated either in the district in which the judgment was rendered or in any other district. In the first case it is ad- dressed to a bailiff, who is hound to elect a domicile for the judgment creditor in the locality within which the seizure it made, and who is empowered to levy the amount in conformity to the rules prescribed for seizures by the sheriff, without however being entitled to demand or retain any commission on the moneys levied. In the second case the writ may be addressed either to the bailiff in like manner, or to the sheriff of such other district.] ^ 8. L. C. c. 83, 8. 201 ; Ord. im, tit. SS, art. 4. • ,i See 33 Vict. c. 17, s. 1 (Que.), tupra, art. 48. 35Viot., c. 6(Qit«.); '• 24. Article 1081, is hereby amended by striking out the following words therein: " who is bound to elect a domicile for the judgment creditor, in the locality within which the seizure is made, and" 1. Art. 1081 of the Code of Civil Procedure, concerning elections of domicile by a bailiff seizing, applies only to oases susceptible of appeal. Legari & Dearoehet & Durochea, 1 B. L. 51, S. C. 1870. 2. The Circuit C 'urt has no power to enforce the execution of a judgment which it has rendered, reversing a judgment of the jjastices of the peace. The Corporation of The Town or Bourg of William Henry <£ Chtewemont, 2 R. L. 44, Q. B. 1868. 534 OF THE CIRCUIT COURT, ARTS. 1082-1087. 1089. If it appears by the return to such writ that the debtor has not, in the district in which the judgment was rendered, sufficient moveables and effects to satisfy the judgment, the creditor may obtain another writ to be exe- cuted upon any moveable property and effects of the debtor situate in another district, and such writ is addressed to the sheriff or to any bailiff of such district, and executed accord- ingly and returned to the Circuit Court. Ibid. 88. 204-5. See 33 Vict. c. 17, s. I (Qtt«.)» supra art. 48. 1083. All oppositions to an execution against moveable property, whatever may be the amount or the value of the thing claimed, are within the jurisdiction of the court which issued the writ. Ibid. 8. 208. 1084. An order to stay execution in conseqence of an opposition to the seizure and sale, may be granted by the judge, either within or beyond the limits of the circuit, or by the clerk, and for that purpose the judge and the clerk are empowered to administer the necessary oath, and the bailiff, on being notified, by the delivery to him of a copy of the opposition and of the order, is bound to return forthwith the writ and his proceedings thereon to the court from which such writ issued. Ibid. lOSti. [In default of moveable property and effects, the judgment may be executed upon such immoveables of the debtor as are within the limits of the district in which the judgment was rendered, or in any other district.] 1086. [The writ for that purpose is addressed to the sheriff of such district, and is returnable to the Superior Court of such district] Ibid. 8. 203. 1087. In the case of an immoveable which is declared by judgment to be hypothecated, and has been surrendered, or in cases of arrears of rents constituted under the Seigniorial Act of 1854, whatever maybe the amount thereof, a writ of OF THE EXECUTION OF JUDGMENTS, ARTS. 1087-1090. 536 that the mert was itisfy the jo be exe- the debtor ised to the ,ed accord- ',. 88. 204-5. it moveable alue of the jourt which qence of an nted by the jircuit, or by the clerk are d the bailiff, copy of the orthwiththe from which a effects, the sables of the in which the ] lesaed to the Ithe Superior 18 declared by Irrendered, or le Seigniorial Lof , a writ of execution may issue immediately against such immoveable, addressed to the sheriff of the district in which it is situated. Ibid. 8. 206,^2. ■,,-. . , . , 32 Vict. c. 30 (Qiie.) : 4. It shall be lawful for the proprietor of the capital of any such (iSei^ni- nrial)rente to institute a purely personal action against the holder of the immoveable hypothecated (greti) for the recovery of the rente or the arrears thereof. These actions may be instituted either in the Circuit Court or the magistrate's court, and anything in the articles 1054, 1055 and 1058, of the Code of Civil Procedure to the contrary not- withstanding, these actions in respect of the jurisdiction of the court, the procedure and the .costs shall be considered as purely personal actions and as having no relation to lands or real estate, annual rentes or other matters involving future rights: whatever may be the amount of the judgment rendered in all such actions, the judgment in default of sufficient moveables, may be executed, after the delay of one year, by the seizure and sale of the immoveable hypothecated {grevi). 1088. All proceedings incidental to the seizure or sale of the immoveables seized in virtue of the foregoing provisions are carried on before the Superior Court into which the writ of execution is returnable, in the same manner as if the judg- mt lit had been rendered by such court. Ibid. s. 203 § 2 ; a. 206. 1089. In other respects the formalities of the seizure and the sale of moveables are the same as upon executions of judgments of the Superior Court, and the provisions con- cerning seizure by garnishment after judgment in the Su- perior Court apply likewise to such seizures issuing from the Circuit Court. 1. In the Circuit Court a contestation of the declaration of a tiers saisi may be filed after the lapse of eight days from the filing of the declaration. LoveU v. Fontaine db Amton, 5 L. C. J. 284, C. C. 1861. lOiilO. Upon the return into the Superior Court of a writ of execution against immoveables, granted by the Circuit Court, the former court may order the clerk of the latter to transmit the original record in the case, that it may serve for all legal purposes. Ibid. 8. 207. 536 OF THE CIRCUIT COURT, ARTS. 1091-1095. SECTION VI. OF REMEDIES AGAINST JUDGMENTS. 1091. Any party who deems himself aggrieved by a judgment of the Circuit Court may obtain a rehearing of the case before three judges of the Superior Court, accord- ing to the provisions contained in articles 494 to 504. 27- .28 r.c. 39, 8. 20. 1093. Such party has likewise a remedy by appeal, in conformity with the provisions contained in the fourth book of this code. C. S. L. C. c. 77, s. 39. . . t; CHAPTER THIRD. PROVISIONS PARTICULAR TO NON-APPEALABLE CASES. 1093. When a non-appealable case is returnable during tenn in the Circuit Court, the defendant is bound to appear in open court on the day and at the hour specified, without having a delay until the next day to file his appearance. C. S. L. a c. 83, 8. 189. 1. The court not having sat until 11. SO p. m. on the day of the re- turn, the majority of the judges decided that plaintiff could not pro- ceed by default although defendant made default when called ; and the action waa dismissed. Thi City Batik v. Saurin, 2 Rev de L^g. 48 Q. B. 1814. ^. V ■ ■ ■ '..; --..-■ ' ,.-■: x :r ■ vm. [ A M 1094. If the judge is absent the case may be called, and appearance or default recorded by the clerk. Ibid. § 2. 109ff. Confessions of judgment may be given orally iu open court; or out of term pursuant to the provisions con- 5. NON-APPEALABLE CASES, AKTS. 1096-1099. 537 ieved by a rehearing of »urt, accord- to 504. 27- by appeal, in J fourtb book SLE CASES. ,mable during lound to appear icified, without [appearance. C. the day of there- lifif could not pro- when called; and • RevdeL^g. *8Q- be called, and Ibid. §2. given orally in provisions con- tained in articlds 94 and following, and judgment may be rendered accordingly. 25 V. e. 10 s. 10. 34 Vict. 0. 4(Qt««.): 11. Article 1096 of the said code is hereby amended by adding thereto the folloving paragraph : " On any day during a term or the time fixed for the holding thereof, if the judge is absent or cannut hold the court on that day, such confessions may be given in the same manner as out of term." 1006. If the defendant fails to appear, the plaintiff may forthwith proceed with his proof, and the court may thereupon render judgment accordingly. C, S. L. C. c. 83, 8. 189, §3. . 1007. If the case is returnable in teim, the defendant, upon appearing, is bound to plead forthwith. He may do do so in writing or orally, at his option, unless the court orders that the pleas shall, within a fixed delay, be made out in writing ; but the plaintiff is not bound to answer in writing unless the court so orders. Ihid., 8. 190. 1008. If the defendant does not plead in writing, he is called upon by the court to specify what allegations of the declaration he admits, and such admissions are recorded. If he makes no such admissions he is held to have denied all the facts alleged, and is liable for the costs of proving such of them as may be proved. No other articulation of facts is required. Ihid., § 2, «. 93, § 2. 1000. If the action is returnable in vacation, the pro- ceedings with respect to appearance, default, judgment by default and relief therefrom, confession of judgment, written pleadings, and the inscription of the case, are the same as in appealable cases ; but no demand of plea or of answer is necessary in order to obtain a foreclosure ; the notice of inscription for proof and hearing must be given at least three days beforehand ; and if the defendant fails to v< 538 OF THE CIRCUIT COURT, ARTS. 1099-1104. appear or to plead, the plaintiff is not bound to give notice of the inscription of the case for proof, when such proof is necessary. Ibid., S8. 193-4-5-6-7. 1. In non-appealable cases C. C. where the writ is returned out of term, the notioe of inscription for proof and hearing on the merits must be given three days at least beforehand, even where such notice is given during term. Neilan v. Demers, 4 Q. L. R. 300, CO. 1878. 1100. [If the defendant fails to appear or to plead in any case returnable in term, the plaintiff may at any time proceed to judgment in the same manner as if the action were returnable in vacation.] 1101. The proof in all cases is made orally and in open court, without its being necessary to take notes of the evi- dence. Ibid., 8. 191. 1109. Judgments for sums not exceeding forty dollars can only be executed upon the moveable property of the debtor, except in the case of hypothecary actions, or of rents created under the Seigniorial Act of 1864, in which cases the court may issue execution against the immoveable charged, according to the formalities prescribed in the pre- ceding chapter. Ibid., 8. 202. 1103. The provisions concerning oppositions and stay of proceedings, contained in the preceding chapter, as well as those concerning seizures by garnishment after judgment, must also be observed in non-appealable cases. Ibid., s. 203. ^ ^ 1104. All non-appeialable suits are determined in a sum- mary manner, and when the amount claimed does not ex- ceed twenty-five dollars they are decided according to equity and good conscience. The provisions of article 1080 apply to non-appealable cases. G. 8. L. Q. c. 79, 8. 2, §§ 2-3. • fc-S-rffc*?--' SUITS BEITTEEN LESSORS AND LESSEES, ABTS. 1 105-1 lOG. 539 give notice ch proof is iturned out of Dn the merits ce Buoh notice I, 0. 0. 1878. to plead in at any time if the action and in open es of the evi- ■ forty dollars operty of the ms, or of rents tt which cases 5 immoveable ►ed in the pre- TITLE THIRD. OF SUITS BETWEEN LESSORS AND LESSEES. r/ llOff. The Circuit Court has iurisdiction in casep be- tween lessors and lessees, whenever the rent, or the annual value, or the amount of damages claimed, does not exceed two hundred dollars. C. S, L. C. c. 40, 8. 41 ; 25 Vict, c. 12, 8. 1. 1106. The provisions contained in the first chapter of title second of the second part of this code apply to suits brought before the Circuit Court. 1. In cases of saisie gagerie in the Circuit Court a declaration need not be served by a bailiff, but may be left at the prothonotary's office. Brahadi v. Bergeron, 10 L. C. J. 117, Q. B. 1866. US and stay of )ter, as well as ter judgment, Itses. Ihid., s. ined in a sum- d does not ex- rding to equity icle 1080 apply 2, §§ 2-3. ■540 LANDS HELD IN COMMON SOCCAOE, ARTS. 1107-1110. TITLE FOURTH. § / '" ii :\ SUITS IN CASES OF ILLEGAL DETENTION OP LANDS HELD LV FREE AND COMMON SOCCAOE. 1107. Concurrently with the jurisdiction of the Superior Court in such matters, petitory or possessory actions against persons illegally detaining lands held in free and common soccage in the townships may be brought before the Circuit Court in the circuit within which such lands are situated, or out of term before a judge of the Superior Court who may hear and determine such suits in vacation, as the Circuit Court might also do, whatever may be the value of the lands ; and the proceedings in all such cases fofm part of the recoi'ds of the Circuit Court. 0. S. L. C. c. 45, 8S. 1-10. 1108. The plaintiff in any such suits may add conclusions for the rents, issues and profits of such lands, and for any other damages he may have suffered. Ibid. 8. 11. 1100. Such suits are subject to the same provisions as other appealable cases in the Circuit Court, as regards sum- mons, pleading and proof. Ibid. 8. 6. ' 1110. The defendant may plead all, matters of defence, even adverse title, and may also claim, by incidental de- mand, whatever sum he may be entitled to for improve- ments made upon the lands. Ibid. 88. 3, 12, 15. 1. In a petitory action to recover the possession of a lot of land, the defendant, by peremptory exception, pleaded, asking that the plaintiff be condemned to pay him the value of the improvements he had made on the property — Held, that a possessor in bad faith has no right of detention for improvements. Lane et al. v. Deloge, 1 L. C. J. 3, S. C. 1856. ,.,4 L07-1110. ^.NDS HELD IN ,f the Superior essory actions Id in free and arought before ich such lands af the Superior lits in vacation, irer may be the a all such cases urt. aS.LC. LANDS HELD IN COMMON SOCCAOE, ARTS. 1110-1113. 541 2. But in a petitory action brought by the plaintiff to recover pos- seRsion of a portion of lot number ten in the 8th range of the town- ihip of E\y~ Held, that the possecBor in good faith was entitled to his improvements, and was not liable for rent and profits accrued previous to the service of process. Knov-lton et al. d- Clarke et vir, 9 L. C. J. 243, Q. B. 1864. nil. [If either of the parties is aggrieved by the judg- ment he may inscribe the case for hearing before three judges of the Superior Court, according to the provisions contained in articles 494 and following, and without preju- liice to the right of appeal to the Court of Queen's Bench.] Ihid. ss. 1,2. 1119. The judgment may, when the plaintiff is entitled to it, declare him owner of the lands iu question, and order the defendant to restore them to him within twenty days from service of judgment, and such judgment may be carried into effect by means of a writ of possession, as prescribed in articles 549 and 650. Ibid. s. 6. add conclusions ids, and for any 8. 11. [me provisions as as regards sum- Ltters of defence, ky incidental de- to for improve- J2. 15. lion of a lot of land, Id, asking that the the improvements he |r in bad faith has no , Ddoge, 1 L- C J- 1118, An appeal lies from such judgment to the Court of Queen's Bench, in the same manner as any other appeal from the Circuit Court; nevertheless, the security must be by two sureties, upon real property to the value of two hundred dollars each ; and the petition must be served \nthin fifteen days after the judgment, and be presented on the first day of the term next aster the expiration of such fifteen days. 25 V. c. 10, s. 7. 542 COURT OF queen's bench, arts. 1114-1115. BOOK FOURTH. COURT OP QUEEN'S BENCH (APPEAL SIDE). CHAPTER FIRST. OV ERROR AND APPEAL FROM JUDGMENTS OF THE SUPERIOR COURT. In ,L \ 1114. Error may be brought, by means of a writ of error against any judgment of the Superior Court founded upon a general verdict given by a special jury. It must be brought before the Court of Queen's Bench sitting in appeal. Questions of law only can be argued in en-or. C, S. L. C, c. 77, 88. 4, 24 ; c. 83, 88. 32, 41. A writ of appeal and not a writ of error will lie in the case of a jnr}* trial when the grievance is not merely an error in a matter of law, and when the verdict of the jury is a final adjudication of law and fact, Casey db Goldsmid et al. 2 L. C. R. 212, Q. 6. 1852. 111*1. An appeal lies to the same court upon any other final judgment rendered by the Superior Court, except in cases of certiorari, and in matters concerning municipal corpora- tions or offices, as provided in article 1033. C. S, L. C. c, 77, 8. 4 ; c. 83, 88. 17, 41 ; c. 89, 88. 6, 17. 34Vict. c.4(Que.) : /> 12. Article 1115 of the said code is hereby amended by adding, at the end Kn^joi, the following words : " And except also in cases for an amount not exceeding two hundred dollars, in which the judgment has been confirmed in review before three judges." See 37 Vict., o. 6 (^e.), under art. 494 ante. L16. APPEAL FROM SUPERIOR COURT. ART. 1115. 543 tDE). THE SUPERIOR \ a writ of error t founded upon Queen's Bench Lor. C. S. L. C. ^thecaseof ajttrj' latter o! law, and of law and fact. |n any other fina^ except in cases Inicipal corpora- C.S.L.C.c, anded by adding, at [pt also in oases for Wch the judgment 1. Thtre ii no ftpp«al to tb« Court of Queen'* Bench from an order given by a judge in chamben, aa a general rule, except in caaet where the law by a apeoial diapoiition aMimilatea the judge in chambers to the Superior Court, as in the case of prohibition. Belivean d ChevreJiU, ] Q. L. R. 209, Q. B. 1876. 2. A judgment of the Superior Court, refuting to grant a writ of mandam:i: vpun a petition complaining that the Bishop of Quebec had refused to rea^i the funeral service over the dead body of an individual, is a final judgment and may be appealed from. Wurtele dk The Bishop of Quebec, 2 L. C. R. 65, Q. B. 1862. 3. A judgment rendered on an application for a writ of A«6eeing before the court. Moreau d- Motz, 3 L. 0. R. 63, Q. B. 1853. 11. Tlie respondent having complained of damage caused to his property by certain provincial works, the matter was referred to arbi- trators and the demand dismissed. The respondent then appealed under 22 Vict. cap. 3. sec. 60, to the Superior Court, and t'le deci- sion of the arbitrators was reversed and a large amount granted him for damages. On appeal by the Attorney-Qaneral to the Queen's Bench, the respondent urged that the decision of the Superior Court was final, and there was oonsefiuently no appeal. After hearing, the exception was dismissed and the appeal allowed. The Attorneii-Gene- ral rd tt «/. d- MilUtr, 1« L. O. J. 80, Q. B. 1871. lA. An Appeal will lie from a judgment diimiif trg an inicription in improbatiun, hut not de piano. Btarulry v. Tht Mayor, tic, yf Mon- treal, 11 L. C. J. 28 .V 2 L 0. L. J. 231, Q. B. 1866. 16. An appeal liea from an order of the Superior Court diicharging an inacription for hearinn^ in vacation on the merita of an exception tc the form, without the content in writing of the partiea for auch Imhc ing out in term. Deaie d. Taylor, 2 L. C. R. 227, Q. B. 18^2. 17. An appeal will He from a judgment rejecting an inaor-'ptio'i be- cnuae no articulations were filed. Ballay i appealed from did not raise a presumption of actjuiescence on his part, although he had made no reservation or protest at the time of payment. Woodman it al. v. OrenUr, 16 L. C. R. 452. 2. The voluntary payment of a part|of the judgment appealed from is an acquiescence, and the fact may be established by affidavit. Char- boniieau 560 COURT OP quebk's bbnch, akt». U33-1139 3. Thu reaauns of appMl ahotild sUtu that the inturUwutory ju foreclosed from doing so until after another delay of four days from the demand of sucli answer. C. S, L. C. c. 77, «. 83 ; \m Rule of P., Q. B. 1. The delay to answer reasons of appeal runs while the case is tn (UUbir4 on a motion to quash the appeal. Phillipn d- S^tthtrland, 11) L. C. J. 138, Q. B. 1876. 1186. The coui't, or a judge in vacation, ui)on application, of which the opposite party has had notice, may, for gool cause shewn, prolong the delays fixed by the two preceding articles. C. S. L. C. c. 77, «. 33. 1137. If the reasons in appeal or error are not filed within the delay prescribed, the respondent may demand the dismissal of the appeal or proceedings in error, with costs. Ibid. 8. 32. 113§. If the respondent fails to file his answer within the delays prescribed, he is foreclosed from doing so, and the appellant may proceed as if the respondent had not ap- peared. Ibid. 8. 33 1130. The provisions concerning election of domicile bv parties and their advocates and attorneys in the Superior Court apply also in matters before the Court of Queen's Bench. Vide aTite, arts. 84, 85. 39. APPEALfl FROM CIRrUTT COUHT, ARTS. 1140-1142. 5fil iMjutory ju<'« mtrd ei al. 9 not Vh; "»i'^^ light days t' he cannot >»».' delay of four L C. c. 77, «. ile the CM* » <" ;>on application, may, for goo^l two preceding 1140. Within ten days after the filing of the reMpondont's answers, each party mu.st file in the clerk's oftico a printed /(ictiim or case, and, in default of his doing ho, the proceed- ings in appeal or error may Ih) declared to have Ikhju aban- doned with costM against the appellant if he is in default, or the case may be heard expitrte if the respondent is in dufatUt. THd. 8. 40 ; Uth Rule of P„ Q. B. 1. An appellant who haa failed to file hia factum within the delay preioribed by the rules uf practice will bo relieved from the conae- quenoea of hia default by producing the factum when the respondent inakea a motion to have the appeal diamissed, and on pavment of coata. Davtm}. cfc BelU, 3 L. C. J. "30, Q. B. 1859. 1141. As soon as the answers are filed, either party- may, after filing his factum, or case, inscribe the case on the roll for hearing, after the delay for filing fuctnras has expired, I'pon giving the opposite party at least two days' notice be- fore the case is called. \hth Rule of P. Q. B. .wit I *v .. ' >r are not filed it may demand in error, with answer within a doing so, and lent had not ap- In of domicile V»y in the Superior :)ourt of Queen's CHAPTER SECOND. OP APPEALS FROM THE CIRCUIT COURT. 1143. An appeal lies to the Court of Queen's Bench from any judgment rendered by the Circuit Court in the follow- ing cases : , ' 1. When the sum or the value of the thing demanded amounts to or exceeds one hundred dollars ; except, how ever, in suits for the recovery of assessments for schools or school-houses, or for monthly contributions for schools, and in suits for the recovery of assessments imposed for the building or repairing of churches, parsonages and church- yards. Cases in which the evidence has not been taken down in writing can only be appealed on points of law ; 36 662 COUKT OF queen's BENCH, ABT. 1142. 2. When the demand is less than on a hundred dollars, but relates to fees of office, duties, rents, revenues or sums of money payable t<) Her Majesty ; 3. When the demand, though less than one hundred dol- lars, relates to titles to lands or tenements, annual rents or other matters in which the rights in future of the parties may be affected ; , 4. In all actions in recognition of hypothecs. Special provisions regulate appeals from judgments ren- dered in the Magdalen Islands. G. 8. L. G. c. 77, s. 39 ; c. 15, 8. 123, § 2 ; c. 18, 8. 25; 25 V. c. 10, a. 7. 1. The code of procedure has not taken away the right of appeal from judgments rendered by justices of the peace in agricultural mat- ters. Bradford et al. v. Wilton, 5 R. L. 242, C. C. 1871. 2. In an action against a proprietor for the amount assessed against him for the erection of a church parsonage, &c. — Held, that the right of appeal in suits for the recovery of such assessments had been allowed and exercised. BenUre £ MUlette et al. 5 L. G. B. 87, Q.B. 1865. 3. There is no appeal from the decision of commissioners appointed for the erection of parishes, except by certiorari. Boucher et al. Exf, V. Dessavlles et al. di Langellier et al. Qh. G. 3. 333, S. 0. 1862. 4. An appeal lies to the Superior Court from acts of the municipality, where it has sold land belonging to a proprietor without judicial pro- cess or authorization. McDougall tfc The Corporation of iH. Ephrem d'Upton, 5 L. C. J. 229, & 11 L. C. R. 363, Q. B. 1861. 6. There is no appeal from judgments of the Circuit Court concerning municipalities and municipal roads in Lower Canada. Oroubc d- The Corporation of the Pariah of St. Laurent, 16 L. C. R. 170 and 10 L C. J. 74 & 2 L. C. L. J. 11, Q. B. 1866. G. In an action by a parish beadle for three quarts of wheat or three quarters of a dollar, which he had been accustomed to receive from such parish as his emoluments of office — Held, that such action was appealable ex natura rei. Martin v. Brunelle, 1 R. L. 616, Q.B. 1865. 7. There is no appeal from a judgment under the statute 12 Vict. cap 41, concerning the election and qualification of municipal council- lors. Bristow %. If: Ijd ' 5G8 COURT OF queen's BENCH, ABTS. 1150-1153. bound to record such appearance in the register, or the de- fault thereof, and to enter each case in which the record has been transmitted to him. If the appellant does not appear, his appeal may be de- clared to have been abandoned, with costs ; and if the re- spondent fails to appear, the appellant may proceed by de- fault. Ibid. 8. 46. llffl. The appellant may prove due diligence on his part, and if, on the day fixed, the record and proceedings have not been transmitted, he may proceed against the clerk of the Circuit Court in the manner presribed in article 1127. litis. At the first term of the Court of Queen's Bench, sitting in appeal at the place to which the record has been transmitted, after the expiration of forty days from the ren- dering of the judgment, or at any subsequent sitting, and without any other fonnality than the tiling of a printed factum, if the court requires it, the case is heard in a sum- mary manner and judgment rendered therein as in any other appeal. Ibid. as. 47, 49. The court will not grant a delay to the appellant (the defendant) to prepare a factum, nor require a factum of the parties without some cause b'^ing shown. Parties can always make a factum, however, if they desire it. Beavdet v. Malioney, 1 Legal News, 679, Q. B. 1878. 11«S3. If the appellant fails to serve and file his petition, or to effectually prosecute his appeal, he may be declared to have forfeited his right of appeal, and be condemned to pay costs. Ibid. s. 48. GENERAL PROVISIONS, ARTS. 1154-1155. 569 or the de- record has nay be de- if the re- eed by de- on his part, jdings have the clerk of icle 1127. jen's Bench, )rd has been rom the ren- sitting, and jf a printed •d in a sum- in any other defendant) to [without Bome I, however, if |, Q. B. 1878. [his petition, be declared Indemned to CHAPTER THIRD. GENERAL PROVISIONS. lltS4. Proceedings in appeal or error may be brought by the legal representatives of a party to a suit who has died. ■ Proceedings in appeal or error, upon judgments rendered against an unmarried woman or widow who has since mar- ried, may be brought by her husband, jointly with her ; or, in the case of a judgment rendered against a party repre- sented by a tutor or curator or other person, but who has since attained full age or come into the exercise of his rights, by such party himself, without the assistance of the tutor or curator a^ no represented or other person who assisted him in the original suit. C. S. L. C. c. 77, ss. 37-8. 1. The parties interested in the contestation or issues joined are alone to be made parties to the appeal. De Witt 73 the court n order in sovereign, mnianding y certified 1 with the ial proceed- i, changes of formalities [ore the Court e on the issue ine« tt- The Bo- 61. erested in the nt to the court 2L.C. J. 228, it the decisory al jurisdiction. jnquCte on the sKillop et of. e heard upon the appeal after the delay mentioned in article lUl. r 1170. Judgment cannot be rendered in appeal unless at least three judges concur therein, and judgment may Ite rendered even in the absence of one judge when the case has been heard before the five judges. C. S. L. C. c. 77, «*». 9,14; 25 V.c. 10,8. 1. [The provisions relative to judgments, contained in articles .503 and 504 apply in similar cases as regards judgments to be rendered by the Court of Queen's Bench. Whenever a case has been heard by the full court or by a gttorum of judges, and at least three of the judges who heard it are presout in court and ready to render judgment therein, then if any judge who heard the cause and would be com- petent to sit in judgment therein, be prevented by removal to another court, sickness or other cause from being present, but has addressed a letter to the clerk of the court, contain- ing his decision and signed by him, or has, in testimony of his concurrence therein, signed a written decision, drawn up to be delivered, and delivered by any other judge, such judge shall be deemed to be present as regards such judg- ment ; and the decision, so transmitted and signed by him, has the same effect as if delivered and concun-ed in by him in ope: court.] 1. In questions purely of practice, the Court of Appeal will not, a a rule, disturb the judgment of the court below. Perry d: De Beau- jeu e« al. 14 L. C. J. 334, Q.B. 1860. 1171. If by reason of the absence, leave of absence, dis- qualification, or incompetency of any of the judges, or any other cause, the order for advisement requires to be dis- charged, such discharge may be ordered by the other judges or by any one of them. C. S. L. G. c. 77, 8. 9. 574 COURT OF queen's BENCH, ARTH. 1172-1174. i: IV. r '■■t II7S|. The court may adjourn to any day in vacation, and thunco from day to day, for the purpose of rendering judg- ment, llrid. 8. 20, § 2. 1178. Judgment may be rendered by the court at another place, where itu flittings are hold, than that where the caHo WHM heard, if the judgoH are of opinion that otherwitto the parties will be exposed to unnecesnary delay ; but in such case the court in teim, or a majority of the judges in vaca- tion, orders the clerk to give the parties interested notice at least six days before that on which judgment is to be ren- dered, and the judgment is nevertheless entered and regis- tered at the place where judgment would have been ren- dered in the ordinary course. 25 V. c. 10, 88. 4, 5. V' 1174. Every judgment in appeal or error must conta.u a summary statement of the points of fact and of law in the case, and the reasons upon which it is founded, with the names of the judges who concurred therein and of those who dissented therefrom, and must adjudicate upon the costs, a 8. L. C. c. 77, «. 36. 1. In an action for the balance of the price of certain lands sold by the plaintiff, the defendant pleaded fear of eviction, and the court be- low ordered the plaintiff to give good and sufficient security within one month — Held, on appeal by plaintiff, that the court had power to re- form such judgment, though respondent merely asked for its confirma- tion, and to dismiss the action purely and simply. Dor ion b»taHte itredicU), where they consider that, according tu law and the eTidence, the verdict ought to have been for the defendant. TiUtane et al. d Gihb et nl. 4 L. 0. J. 361, Q. B. 1800. 117(1. The costs arc taxed by the clerk of appcaln, Having a revision of such taxation by a ju ] . The Queen's Bench in Appeal, after haying rendered judgment, has no longer any power to take cognizance of the case, the exercise of the power of the said court and its competency having terminated with the judgment on the appeal. The Montr i'al Assurance Company i& McGillivray. 5 L. C. J. 164 & 10 L. C. R. 386, Q. B. 1860. 1177. The court sitting in appeal or error may exercise all the powers necessary for such jurisdiction and make such orders as it may deem proper for the purpose of remedying any insufficiencies of the record; of staying proceedings in the court below in cases from which appeal or error has been brought ; of regulating the putting in or renewal of security; and of providing for all cases in which the law affords tbe party no special remedy. Such court may also make such rules of practice as may be necessaly, for governing the proceedings in all cases brought before it, provided such rules be not contrary to any existing law. It may also make and establish tariffs of fees for the counsel, advocates and attorneys practising before it, and also for its bailiffs. 1. The Court of Appeal may order and revise anenqu^te on the facts contained in a requMe en reprise d'histanee. SIcKUlip et al, v. Kauntz et al. 1 Rev. de L^g. 152, Q.B. 1846. 2. Where a disavowal was raised in a case pending before the Court of Appeal — Held, that the court could order an enqu^te on the issue raised. Lea Curi et Marguilliers de I'CEuvre et Fabrique de la Paroisse ald operate an abao> lute injustice. Rou v. Scott, 9 L. 0. R. 270, Q.B. 1859. jred judgment, , the exercise of ring terminated irance Company i. 1860. . r may exercise and make such of remedying ceedingsinthe error has been pyal of security; law affords the practice as may rs in all cases lot contrary to jf fees for the before it, and nquSte on the facts L et cd. V. Kauntz Ig before the Court Iquete on the issue lue de la Paroim * Lop of Montreal, 4 CHAPTER FOURTH. OF APPEALS TO HER MAJESTY. 1178. An appeal lies to her Majesty in her Privy Coun- cil from iSnal judgments rendered in appeal or error by the Court of Queen's Bench : 1. In all cases where the matter in dispute relates to any fee of office, duty, rents, revenue, or any sum of money pay- able to Her Majesty ; 2. In cases concerning titles to lands or tenements, annual rents and other matters by which the rights in future of parties may be affected ; 3. In all other cases wherein the matter in dispute ex- ceeds the sum or value of five hindred pounds sterling. C. S.L.G. 0.77, 8. 52. See ante 37 Vict. c. 6, s. 2 (Que.), under art 494. 1. There is no appeal from the Queen's Bench to the Vrl-ry Council in a matter of Prohibition. O'Farrell v. Brassard et al. 4 Q. L. B. 214, Q. B. 1878. 2. Leave to appeal to the Privy Council will not be granted from a judgment which confirmed a judgment of the court below dismissing an inscription en favM. Darling d" Templeton, 19 L. 0. J. 105, Q. B. 3. Where the Court of Appeal rendered judgment confirming a judg- ment of the Superior Court, which quashed a writ of mandamus ad- dressed to a commissioner appointed to inquire into the conduct of a certain justice of the peace, requiring him to do thing:: which he was not legally bound to do in the course of such inquiry — JJeW, that from such judgment there was no appeal to the Privy Council. Belleoille v. Djucet, 1 Q. L. R 250, Q. B. 1875. 37 578 APPEALS TO HER MAJESTY, ART. 1178. 4. There is no appeal to the Privy Council from a judgment for a sum of 940, although in default of payment of such judgment the re> apondent is subject to contrainte par corps. Paeaud t. Boy, 16 L. C. R. 398, Q. B. 1866. 5. Held, dismissing a motion for leave to appeal to the Privy Coun- cil, that no such appeal lies in cases of quo vjarranto. Paeaud d: GagrU, 17 L. C. R. 367, Q. B. 1867. 6. An application was made on tho last day of the appeal term for leave to appeal to the Privy Council from a judgment rendered five days previously — Held, that the motion came too late. MuUin d: A r- chambault, 2 L. C. L. J. 117, Q. B. 1867. 7. I^ndor 1178 C. G. P. , the amount necessary to allow of an appeal to the Privy Council is the amount mentioned in the declaration as de- manded by the action, and not the amount for which judgment <■ "n rendered. Richer tfc Voyer et al. 2 R. L. 244, Q. B. 1870. 8. A party, joint appellant with others, has a right to disavow .. ^ refuse to participate in any proceeding to appeal to Ber Majesty in Privy Council. Muir et al. d; Muir, 16 L. C. J. 79, Q. B. 1871. 9. Where a party appealing to the Privy Council had given security for costs only, and had tiled a declaration that he had no objection to execution going against him for the condemnation money, the court will not allow the record to be remitted to the court below in order to enforce such execution. Pain^chaud et ai. <£ Hudon et al. 16 L. C. J. 112, Q.B. 1870. 10. After an appeal has been allowed to the Privy Council the court cannot set aside the bail bond for alleged irregularities, and dismiss the appeal. lb. 11. Where leave to appeal to the Privy Council had been granted, and application was made by appellant that a portion of the record said to be immaterial be omitted from the transcript. — Held, that the court had no power to interfere, and must reject the application. Xe- moine value of such real estate is equal to the amount of the security, over and above all charges and hypothecs. The judge who receives such se- curity may order, either on demand or otherwise, the production of the registrar's certificate, the valuation rolls and any other documents 582 APPEALS TO aER MAJESTY, ART. 1179. P for the purposes of the Mourity, and ia bound to put snoh questions as he deems advisable to the sureties, and such questions and the' answers thereto may be taken down in writing. Nevertheless the party appellant may exempt himself from furnishing such security, by depositing an amount equal to that required for the security, either in money, in bonds of the Dominion, or of the Province of Quebec, or in corporation debentures, and such moneys, bonds or debentures are deposited either with the Olerk uf the Court of Queen's Bench, or with the Sheriff, as the judge may direct." 1. On a motion to compel the appellant to put in new security in appeal, one of the parties being insolvent and the other having left the province — Held, that an appeal to the Privy Council having been al- lowed, an order for new security should be granted, but the court can- not dismiss the appeal in case such new security is not put in. John- son 10 L. C. R. 402, Q. B. 1860» 5. A judge of the Court of Queen's Bench has power in chambers to extend the delay for giving security on an appeal to the Privy Council beyond the delay ordered by the court whenever he is seized of the APPEALS TO HER MAJESTY, ARTS. 1179-1181. 583 questions as LB and the theless the lecurity, by irity, either Quebec, or lentures are nch, or with KT secnrity in kving left the ting been al- ,he court can- at in. Jo'i'i- u md £100 waft on of respon- pt of the pro- be increased. R. 161, P. C. louncil, and it Irecovered on a d was granted iFire Assurance matter prior to the expiration of such delay. The Mayor, dbc, of Mon- ireal • 680 SUMMARY TRIAL OF SMALL CAUSES, ARTS. 1187-1188. But if the recusation is overruled, the case is sent back to the former court, which may, without reference to the merits^ tax the costs of such rixusation against the party who made it. Ibid. - ll§8. The Commissioners' Court exercises an ultimate jurisdiction in all suits purely personal or relating to move- able property, which arise from contracts or quasi-contracts, and wherein the sum or value demanded does not exceed twenty-fivo dollars, and the defendant resides : 1. In the locality of the court ; 2. In another locality, but in the same district and within a distance of five leagues, if the debt has been contracted in the locality for which the court is established ; Vi 3. In a neighbouring locality in which there are no com- miflsioners.or in which the commissioners cannot sit by reason of illness, absence, or other inaVjility to act, provided such locality is in the same district within a distance not exceeding ten leagues. 1 Baitard, p. 93-4; Poth. int. g4n. Noa. 110- 111, 119 ; C. S. L. C. c. 94, as. 9, 19-20. 1. CommisBionerB for the sximmary trial of Binall causes have no jurisdiction in an action where the claim, amounting; tu more than twenty-five dollars, has been divided in order to give jurisdiction to the court. Desparoim exp. d; Laberge, 7 L. C. J. 35, S. C. 1859. 2. The ConimisBioners' Court has jurisdiction in an action for the recovery of the balance of a sum exceeding $25, provided such balance does not exceed that sum. Bourbeau exp. , 13 L. C. B. 65, S. C. 1862. 3. The jurisdiction of the CommisBionors' Court for the summary trial of small causes extends to actions by creditors against the heirs of the deceased. Charbomieau exp. , 7 L. C. J. 122, S. C. 1863. 4. The Commissioners' Court for the trial of small causes has no jurisdiction in actions for tithes. Boy v. Bergeron, 2 B. L. 532, C. C. 1867. 6. In an action brought before the Commipsioners' Court for the summary trial of small causes, the jurisdiction must appear on the fare of the proceedings ; and a defendant who has been condemned may de- mand that the judgment be set aside on the ground that neither the r-1188. nt back to the merits^ who made 1 ultimate g to move- i-contracta, not exceed 1 and within ontracted in are no com- sit by reason rovided such lot exceeding ^n. No8. 110- caiwes have no g to more than riadiotiontothe 1859. 1 action for the led Buch balance ,. 66,S.C.1802. »r the summary linst the heirs of 1863. 1 causes has no R. L. 632, 0. C. j' Court for the ppear on the face idemned may de- that neither the SUMMARY TRIAL OF SMALL CAUSES, ARTS. 1188-1192. 587 ■errioe unr the judgment show the juriidiotion of the court in the matter. Macfatiane d BourgauU, 10 L. 0. J. 231, S. 0. 1872. 0. Commissionert cannot take cognizance of an action for damage* ex ddlciu. Legmuire t. Ltmay, 2 Rev. de L^g. 337, K. B. 1820. 1189. It has no jurisdiction in suits for slander, or for assault and battery, or relating to civil status, paternity, or seduction, or lying-in expenses ; nor in suits for the recovery of any fine or penalty whatever. Ibid. s. 8, 1100. It has jurisdiction in suits for the recovery of as- sessments, not exceeding twenty-five dollars, imposed for the building of churches, pareonagos and church-yards. C. 8. L. G. 0. 18, 8. 25. 1101. It may, in matters within its jurisdiction, grant : Attachments for rent ; Attachments in revendication ; Attachments by garnishment after judgment ; Simple attachments or attachments by garnishment before judgment, for sums exceeding five dollars, whenever it is established by the affidavit of the plaintiff, or of his agent, that the defendant is secreting or is about to secrete his pro- perty, or absconds or is immediately about to leave the Pro- vince, with intent to defraud his creditors. Ibid. c. 94, as. 23-4. 1103. [These proceedings may be executed beyond the limits of the judicial district in which they nre issued, pro- vided an order of one of the commissioners, authorizing such execution within the district where it requires to be executed, is endorsed upon the warrant.] Every warrant of simple attachment in revendication, attachment for rent, attachment by garnishment or seizure by garnishment, must be made returnable on a day named within forty days, and the return with a certificate of the proceedings must be made on the day so named. V 688 SUKMART TRIAL OF SMALL CAUSES, ARTS. 1102-1194. Such affidavit may bo received either by one of the com- misMioners or by the clerk of the court. Ibid, «. 25. 37Viot. 0. 11(^.): " 1192a. In the oaae of attachment by garnUhmont before or nft(>r Judgment, the garnUhee, within three daya after the writ uf aeizuro haa been aerved upon him, may make hia declaration under onth be- fore the clerk of the Circuit Court nearest to the place where tho writ waa aerved upon him. " 11026. Such clerk ia authorized to administer the oath required, and must, after having drawn up and received the declaration of the garnishee, forward the snme, without delay, through the post, by a registered and stamped letter, to the clerk of tho Commissioners' Court where the cause is pending. He is entitled to a fee of one dol- lar, payable by the garnishee, for drawing up, receiving and forward- ing the declaration as required ; and, on the payment of such fee, he prepares a receipt which he forwards with the declaration of (he gar- nishee. " 1102a. Such sum of one dollar is taxed by tho commissioners or by their clerk as an integral part of the costs of suit, and the receipt given therefor and forwarded to the clerk of the Commissioners' Court ' is equivalent to a judgment of such court in favour of the garnishee against the plaintiff in the suit, and may be executed by seizure, after the same delay and in the same manner as any other judgment of such court." 1193. Any minor above the age of fourteen years may bring a suit before a Commissioners' Court for the recovery of wages or salary, in the same manner as if he was of age. Ibid. 8. 21. 1104. The delay upon ordinary summons must be at least three clear days when defendant does not reside more than two leagues from the place to which he is summoned, with the usual addition of delay when tho distance exceeds two leagues, according to article 75. But if the summons is accompanied with an attachment, the delay must be at least fifteen days and not more than forty days. Ibid. as. 22-27. , 2-1194. ! the com* 25. jfore or aftor •it «>f leizaro [id«r oftth be- here the writ ath reqviireil, nrHtion <>f the lie post, ^y a ;y seizure, after idgmentof such n years may the recovery le was of age. ust be at least ide more tlian mmoned, with ;e exceeds two m attachment, not more than SUMII VKY TRIAL OF SMALL CAUSES, ARTS. 1195-1200. 689 IIMI. The writ of summons commandB the defendant to pay the plaintiHT the amount demanded or to appear before the court to annwer such demand. It must al8o contain : The nameH, surname, residence and occupation, both of the plaintiff and of the defendant ; A summary statement of the cause of action ; The day on which the defendant must appe^-r; The date of the writ ; The signature of the commissioner. 7 V. c. 19, ached. No. 1. 1106. Ordinary writs of sumnions may be sei v ed by any bailiff of the Superior Court or by any sergeni. i of militia residing in the locality. C. S. L. C. c. 94, a. 2b. 1197. If the summons is accompi nie>.< with an attach- ment it can only be served by a bailiff. Ibid. § 2. 1108. Either party may evoke the case to the [Circuit] Court in the district when the contestation relates : To any title to immoveable property ; To any fee of office, or to any sum of money due to the Crown ; To any duty, rents, revenue, or annual rent, payment or other matter by which rights in future might be bound, a S. L. a c. 83, a. 178 ; c. . J , ?, 29. 1100. The improbation of any act or document produced before the court has the effect of an evocation [to the Cir- cuit Court]. Ibid, c. 94, s. 30. 1300. In the cases of the two preceding articles, the commissioner, or one of the commissioners, or the clerk, must, within fifteen days, transmit the record to the Circuit Court, together with a certified transcript of the entries in the register concerning the same. Ibid. a. 31. Nevertheless, in the case of improbation, the record can- S90 SUMMARY TBIAL OP SMALL CAUSES, ARTS. 1200-1206. not be transmitted unless the party alleging the falsity gives sufficient security for the costs to be incurred upon such im- probation. .. :f * . r; . ^ t >>: 1901. [In default of such security being given within the delay fixed by the court the party forfeits his right of evo- cation, and the Commissioners' Court may proceed to hear and determine the case without regard to the improbation.] 130ISI. If the evocation is allo\f ed, the case is hoard and determined by the court to which it is evoked, as if it had originated therein. Ibid. 8. 32. ■& :\ ; 1303. No person can act as attorney of either of the par- ties before a Commissioners' Court except he is an advocate or attorney-at-law, or the holder of a special power of a - torney, or unless it is in the presence and with the consent of the ))arty. Bailiffs and sergeants of militia can in no case act as at- torneys. Ibid. 8. 18, § 1. 1^4. Any person, other than an advocate or attomey- at law, who acts for one of the parties must do so gra- tuitously ; and if such person for so acting receives, either directly or indirectly, any fee, emolument or remuneration whatever, he is deemed to have received the same under false pretences and may be punished accordingly, and is, moreover, disqualified from ever acting as attorney before a Commissioners' Court. Ibid. § 2. \ , ■ - 1903. No clerk of such court can act as the attorney of either of the parties. Ibid. § 3. 1306. If the defendant has been served personally and makes default, or if he confesses judgment, or if the parties Ai'ree to it, the case may be heard on the day of the return and judgment may be rendered. In any other case the suit roust be \ ostponed to a subse- .quont day for trial. Ibid. 8. 33, §§ 1-'^. 0-1206. Isity gives a such im- ■within the ;ht of evo- ;ed to hear iprobation.] i heard and Bts if it had r of the par- an advocate power of a- i the consent ise act as at- or attorney- jt do so gra- sceives, either remuneration ' same under lingly, a'^^ '"^' Wney before a attorney of [)ersonally and if the parties of the return led to a subse- SUHHART TRIAL OP SMALL CAUSES, ARTS. 120''' -1211. 691 190T. By consent of the parties the case may be referred to the decision of three arbitrators, one of whom is named by each party and the third by the court. ^ The court may also, in its discretion, order such reference. The arbitrators before acting, must be sworn before one of the commissioners or before a justice of the peace, to ful- fil their duty faithfully and impartially. They may hear the parties and their witnesses, who must be sworn before a commissioner or before a justice of the pcuce. The decision of two of the arbitrators is final, and must be homologated and executed accordingly. Ibid. 8. 34. 1308. The -cases are heard, tried and determined in a summary manner, without any written pleadings being necessary. Ibid, 8,7. • 1309. Oral testimony is admitted in all cases, and one witness, even if related, is sufficient. But the bailiff or sergeant who served the writ of sum- mons cannot be a witness for the party who employed him, except as regards the service itself. C, S, L, G, c, 94, 8, 18, § 3; 8. 36; c. 82, ss. 14,1-5, 16. 1310. Upon the application of either of the parl'es, the court may compel any person residing within its jurisdic- tion to attend as a witness in any case, under a penalty of not less than one dollar, nor more than four dollars, for every default to attend as commanded. C. S. L, C. c. 94, s. 35. 1311. The court, in rendering judgment, may condemn the unsuccessful party to the costs of suit, of contestation, and of arbitration. But if the amount of the judgment does not exceed two dollars, the court may reduce the costs to the same amount as that for which judgment is rendered. Ibid, «. 38. 592 SUMMABT TRIAL OF SHALL CAUSES, ARTS. 1212-1215. 1919. If the debtor fails to satisfy the amount of the condemnation against him within eight days, he may be compelled to do so by the seizure and sale of such seizable moveables as he may have within the district in which the court was held. He is liable to the costs of such execution to the amount of one dollar and a half. If the sale does not take place he is not bound to pay more than seventy-five cents of costs. These costs do not in any case comprise the expense of feeding cattle, if any have been seized. The warrant of execution must be made returnable and be returned like the other warrants mentioned in article 1192. Ibid. 88. ^1-2. 1313. No opposition to the sale of moveables under seizure can stay proceedings, unless it is allowed by a com- missioner and accompanied with an order to that effect. Ibid. 8. 43. 1314. Oppositions thus allowed are heard and deter- mined in the same manner as other cases before the court. Ibid. . 131«S. The clerk, and the bailiffs or sergeants of militia cannot demand any other emoluments than those mentioned in form number 56 in the Appendix to this Code. Ibid. 8. 40. 2-1215. JUSTICES OF THE PEACE, ETC., ARTS. 1216-1219. 593 int of the le may be sh seizable whicli the he amount and to pay expense of arnable and }d in article jables under jd by a com- o that effect. and deter- re the court. Ltsof militia lose mentioned Le. lbid.8A0. - , ■ CHAPTER SECOND. OF JUSTICES OF THE PEACE AND OTHEE INFERIOR CIVIL JURISDICTIONS. 1316. Justices of the peace have also jurisdiction in certain civil matters, such as the recovery of school taxes, of assessments for the building or repairing of churches, parsonages or church yards, damages caused by animals, and other matters relating to agriculture, disputes between masters and servants in the country parts, seamen's wages, claims of pawners against pawnbrokers, and other mattei-s. 1. A justice of the peace has nu jurisdiction xmdar 12 Vict. cap. 55, in cases for the desertion of a servant, unless thore is a contract. Rose exp. 3 L. 0. R. 495, S. 0. 1853. 2. An attachment after judgment issued by a justice of the peace and all proceedings thereon are absolutely null. Dumont v. Laforge, 1 Q. L. R. 159, S. C. 1874. 1317. In certain cities the Recorder's Court has also juris- diction for the recovery of certain municipal claims, and in matters of dispute between lessors and lessees and master and servant. , - , 1. The Superior Court has jurisdiction as a court of appeal from judgments of the Recorder's Court, relating to taxes imposed by the corporation of the city of Quebec under its by-laws. BosweU d The Mayor et al of Quebec, 14 L. C. R. 450, S. C. 1864. 1318. The Trinity House also exercises a civil jurisdiction in matters connected with the shores of the river St. Law- rence and of the rivers flowing into it, and also with regard to the wages and indemnities due to pilots. 1919. The extent of the jurisdiction of these special courts and the manner of proceeding before them are regu- lated by the statutes which create them or relate to them, and in certain respects by the practice therein followed. 38 i. ii B f 594 WRIT OF CERTIOUARI, ART. 1220. CHAPTER THIRD. REMEDIES AOAINHT THE PROCEEDINGS AND JUDGMENTS OF THE ABOVE-MENTIONED COURTS. 1990. In all cases where no appeal is given from the in- ferior courts above-mentioned, the case may be evoked be- fore judgment, or the judgment may be revised, by means of a writ of certiorari, unless this remedy also is taken away by law. 1 Wharton Law Lex. 144. 1. A uotico of application for a writ of certiorari given within the six months following conviction is not sufficient if the application itself be not made unLil after the expiration of such six months. Palmer exp, 16 L. C. J. 263, S. C. 1872. 2. A certiorari allowed before the expiration of six months from the date of the conviction to be removed, but not sued out until the six months had expired, was quashed. Allard exp. db ChUlaa, 2 Rev. de L^g. 32, K. B. 1819. Contra : i!?«p. Fiset, 3 Q. L. R. 102, S. C. 1877. 3. Under the license law of the city of Montreal, the defendant has no right to a certiorari until he has made the deposit required by law. Doray exp. d Sexton, 6 R. L. 507, S. C. 1874. 4. The writ of c<>,rtiorari does not lie from a conviction pronounced by a district magistrate under the License Act, even where the defen- dant has made the deposit required by that Act. Duncan exp. .ounct.^d in r^pni court, and after- wards chanj;ed in :'«uch a niu,';ne" an i''^ incrfiae ii ^uount which de- fendant had heen cotidemnvd to pny, the pai-ty itg^i/^tved may demand that the j\i'igment hf> net asidn by means of a writ of certiorari. Mac- prlane db Boirgault, 1(5 L. C. J. 221, S. C. 1872. 16. Whert) decU".dd to have lapsed, and the proceedings be remitted to the court below. Boyer exp. 2 L. C. J. 188, S. C. ; Chagnon d- Lareau et al. 2 L. C. J. 189, 8. O.j Prefontaine exp. 2 L. C. J. 202, S. 0. 1858. 1391. The remedy lies, nevertheless, only in the follow- ing cases : 1. When there is want or excess of jurisdiction ; 2. When the regulations upon which a complaint is brought or the judgment rendered are null or of no eflfect ; 3. When the proceediu^^c contain gross irregularities and there is reason to believe that justice has not been or will not be done. Ibid. 1 . Certiorari will lie for excess of jurisdiction and illegality in the proceedings of commissioners appointed by the governor in the pro- vince under 31 Qeorge III. cap. 6, for the building and repairing of churches. Bex d Oingraa et al. S. R. 660, K. B. 1833. 2. Where the police magistrate imposed a fine of 9100 for an assault, and the defendant brought certiorari — tield, that the magistrate had not exceeded his jurisdiction. Boy exp. 6 R. L. 452, S. C. 1874. 3. When a judgment of the Commissioners' Court is bad in form, the Superior Court will not grant a writ of certiorari unless it appear that there has been an excess of jurisdiction. Oibeault exp. 3 L. C. B. Ill, S. 0. ; Qauthier et al. exp. 3 L. C, R. 498, S. C. 1853. 4. Certiorari can only be had for want or excess of jurisdiction, and irregularity and illegality in the proof and proceedings in a cause before the commissioners, and the fact that they refused to admit proof offered by the opposants, and admitted illegal proof on the other side do not constitute a want of jurisdiction, and a writ of certiorari based on such grounds must be dismissed. Boucher exp. et al. v. Du- aiuUa et al. <& Langelier et al. 6 L. C. J. 333, S. C. 1862, WRIT OF CERTIORARI, ARTS. 1221-1222. 697 and after- it which de- aay demand rrari. Mac- of the peace i to iMtt« out it proceeding ant, that his ,Bed, and the p. 2 L. C. J. .• Prefonlaine the follow- on; complaint is of no effect ; gularities and been or will illegality in the >rnor in the pro- ind repairing of jO for an asaault, I magistrate had I S. 0. 1874. i is bad in form, , unless it appear lit exp. 3 L. 0. R. U863. jurisdiction, and Jdings in a cause Lpfueed to admit Vroof on the other I vrit of certioran [exp. etal.v.De«- 52, 5. Where the petitioner asked for a writ of certiorari againat a con- viction of a justice of the peace for selling liquor without license, on the ground that the revenue inspector prosecuting had not alleged that he, the petitioner, was not a distiller or wine merchr it. ^ and because there were no other negative averments than that the defendant was not licensed as required by law ; and because the conviction did not mention the precise day on which the alleged offence was committed ; and because the judgment ordered that the defendant be imprisoned in default of sufSoient moveables to meet the fine and costs ; and because the judgment had ordered an imprisonment of two months, counting from the day of incarceration — the judgment of the court below, rujecting the petition, was confirmed with costs. Beauparlant V. Oermis et al. 1 R. L. 467, S. C. R. 6. In the Court of Quarter Sessions a defendant makes affidavit of his intention to remove the indictment into the King's Bench, because it involved important questions of law, and because certain of the judges were personally interested in the prosecution. Thereupon he is ordered to show cause why an attachment for contempt against him should not issue. This he declines to do, and rests his case upon the prudence and discretion of the court. He is then declared guilty of two contempts, apprehended and imprisoned — Held, that a certio- rari will not lie to remove his conviction. Vallierea de St. Bial exp. S. R. 593,K.B. 1834. ,. 7. On a writ of certiorari to quash a conviction of a justice of the peace on a charge of having disturbed the public peace by insulting a person, and by committing an assault upon him, and by crying out and threatening to beat him, the court granted the motion on the ground that the conviction did not appear to be warranted by any law or statute. BouleoM exp. 17 L. C. J. 172, S. 0. 1872. 8. Where an order had been granted under 32 & 33 Vict. cap. 9, sec. 11, changing the place of trial from Quebec to Montraal, and directing that all the proceedings had before a coroner should be trans- mitted to the Queen's Bench at Montreal, and such order for trans- mission of inquest had been obeyed — Held, that a writ of certiorari to produce the return of the proceedings, in order that the inquest may be quashed for illegality, is unnecessary, and a petition presented in chambers, praying for the issue of such writ, would, not be granted. Regina tfe Brydget, 18 L. C. J. 94, Q. B. 1874. 1939. The writ of certiorari can only be granted upon motion, supported by an affidavit of the facts and circum- stances of the case. 598 WRIT OF CERTIORARI, ARTS. 1223-1228, ft J. 1993. A previous notice of the time and place at which the motion will be presented must be served u{ on the func- tionary seized of the case, or who rendered the judgment, and a return of such service is made as in any other case. a S. L. a c. 89, a. 2 § 2. 1. The return of a notice of motion for a writ of eertiorari made by a bailiff under his oath of office is not sufficient, but vuch a return must be proved by oath. Adams exp. 10 L. C. J. 176, S. C. 1866. 3. A bailiff's return of the notice of motion for a writ of certiorari ig sufficient, and such return need not be proven on oath. Boy exp. 7 L. C. J. 109, S. C. 1863, 1934, The service of such notice has the effect of sus- pending all proceedings in the court below. » 1999. The motion must be presented to the Superior Court or the Circuit Court, [or to a judge.] The opposite party is entitled to appear and make any oral objections of a nature to prevent the granting of the writ of certiorari. 1990. Writs of ceriiorari are in the name of the sove- reign ; they are sealed with the seal of the court, are clothed with the other formalities required for other writs, and commaii'i the functions y to whom they are addressed to certify and transmit, within a fixed delay, all the papers connected with the case, by whatever names the parties may be therein designated. 2 Tidd'a Pr. 147. 1, On the hearing of a writ of certiorari issued under 12 Vict. cap. 41 — Held, that it should be addressed to the justice of the peace mak- ing the conviction and not to the bailiff effecting the service of such writ, and if addressed to the bailiff, will be set aside. Begina v. Bar- bean & Barbeau, 1 L. 0. B. 320, S. C. 1851. 1997. Mention must be made on the back of the writ that it has issued by order of the court. 199§. The writ is served upon and left with the func- tionary to whom it is addressed, and if it is addressed to a WRIT OP CERTIORARI, ARTS. 1228-1229. iJ99 e at which n the func- judgment, other case. orari made by a return must 1865. of certiorari is kih. Roy exp. effect of 8US- the Superior The opposite I objections of : certiorari. le of the sove- irt, are clothed ler writs, and •e addressed to all the papers les the parties Ider 12 Vict. cap. [of the peace mak- \e service of such Begina v. Bar- ick of the writ [with thefunc- addressed to a court composed of several functionaries, it is left with one of them, and such service suspends all proceedings before them under pain of being liable for contempt of c^urt. The return of such service is made upon a certified copy of the writ. 2 Comyn'a Dig. 340. 1. The original writ of certiorari, and not a copy, must be served upon the convicting justice ; and it is not necessary to serve a copy of such writ upon complainant. Filiau exp. 4 L. C. R. 129, S. C. 1854. 2. Held, on motion, that a writ of certiorari would be quashed— a copy of the writ having been served on the magistrate and his return made thereon. Lah , 2. The merits of a certiorari may be heard on a rule to quash, with- out an inscription for hearing. Marry erp, d: Sexton, 14 L. C. J. 101, S. C. 1869. 3. The hearing on the merits of a writ of certiorari must be had in one of the two divisions of the court appointed for such hearing in or- dinary cases. kVhitehead exp. 15 L. C. J. 43, S. 0. 1870. 4. A defendant under a writ of certiorari cannot compel the plaintitf or petitioner to proceed under his writ by a mere motion to that effect, the proper course being by means of a procedendo. Begina v. Carrkr, 2 L. C. R. 302, S. C. 1852. 5. On a writ of certiorari to quash a conviction of a justice of the peace, condemning the city inspector for pulling down a fence erected by private individuals, the court has not the power to inquire into the matters of fact contained in the evidence, or as to the amount of mal- ice which entered into the act with which the accused is charged. Lan- ier d' Lanfret 1333. All interlocutory or final judgments upon writs of certiorari are drawn up and served in the same manner as in ordinary suits. Ibid. s. 2. 1333. The court in rendering judgment upon the writ, may award costs in its discretion. Ibid. a. 4. WRIT OP CERTIORARI, ARTS. 1233-1235. 601 1. Where a conviction wm set aside un eertunari — Held, th«t the costs were at the discretion ut the court. Leonard exp. 1 L. C. J. 253, S. C. l«67. 2. And a motion for a writ of certu>rari against a conviction t)f a justice of the peace would be rejected with costs, notwithstanding that the magistrates alone appeared by an advocate. Beauparlant V. Ikrvaia etal.l R. L. 467, S. C. R. 18(36. 3. On a motion to compel a nia^^istrate to return the original papers in a case under certiorari, the motion will be granted, but without costs, against the magistrate. Deniera exp. 7 L. C. R. 428, S.O. 1857. Overruling Terrien exp. 7. L. C. R. 429. 1934. No appeal lies from the judgment on the appli- cation for the writ, or from the judgment upon the writ itself ; nor are such judgments subject to review. Ibid. 8. 6 ; c. 88, a. 17. 1. There is a right of revision of judgments rendered on the de- mand or motion for a writ of certiorari, and on that revision, the judg- ment refusing the writ, being held good, will be confirmed with costs. Beauparlant exp. 10 L. C. J. 102, S. C 1865. 2. But Juld, later, that there is no right of revision of a judgment rendered on an application for a writ of certiorari. Spelman exp, 10 L. C. J. 81 & I L. C. L. J. 115, S. C. R. 1866. 133«S. The procedure regulated by this chapter applies also to all other cases in which the writ of certioraH will lie, and against any other court not mentioned in this book; but it does not apply with respect t« the court of Vice- Admiralty, over which the Superior Court, as well as the Circuit Court, has no control. 002 REOIHTER8 OK CIVIL 8TATUH, ART. 123«. PART THIRD. NON. CONTENTIOUS PR0CEEDING8 39 Viot. 0. 33 (^e.) : 24. Notaries may prepare the non-oontentioua proceedings specitied in the third part of the Code of Civil Procedure, and submit the same to the judge or to the prothonotary ; and may especially sign, in the name of the applicants, without any special power, requests or peti- tions for the summoning of a family council, in relation to tutor- ships, ouratorships, sale or alienation of the property of minors, inter- dicted persons, partition in lioitation, homologation en jtutice, the affix- ing and the removal of seals, as also all other petitions, or proceedings in which the action of the judicial authority, or of any other public authority whatever, is to be asked for. TITLE FIRST. OF REGISTERS AND THEIR AUTHENTICATION. CHAPTER FIRST. \ , OP REGISTERS OF CIVIL STATUS. 1936. All registers intended to record births, marriages and deaths, or religious profession, must before being used, be numbered upon the first and every subsequent leaf, with the number of such leaf written in words, at full length, and be sealed with the seal of the Superior Court, by affix- RE0I8TER8 OF CIVIL STATUS, ART. 1230. G03 ing the tiatno upon tho two oxtreiuitios of a ribbon, or other Hiich fastening, paHHing through all the loaveH of niich regiH- tcrs and secured inside of the cover thereof ; and upon the first leaf must be written an attestation under the signature of a judge or the prothonotary of the Superior Court of the district, or of the clerk of the Circuit Court of the county which comprises the Roiaan Catholic parish, Protestant Church or religious congregation or society authorized to keep such registers and for which they are to serve, and to which they belong, specifying the nund)er of leaves con- tained in the register, the purpose for which it is intendodi and tho date of such attestation. Such certificate cannot, however, be given until the for- malities prescribed by special acts with regard to certain religious congregations have been fulfilled. C. 8. L. C. c. 20, 8. 2 ; 26 V. c. 16, a. 1. C. G. Actea de I'Etat Civil, Art. 3. 32 Vict. 0. 26(^te.>: An Act respecting the Authentication and Custody of Registers of Civil Status. Her Majesty, by and with the advice and consent of the Legislature uf Quebec, enacts as follows : 1. Article 1236 of the Code of Civil Procedure is hereby amended by- inserting after the words, " the seal of the Superior Court," the words, " or the seal of the Circuit Court." 2. Article 46 of the Civil Code is amended, by striking out the words, " or to the clerk of the Circuit Court, instead of the prothonotary, in the case specified in the Statute 25 Vict. c. 16," in the said article, and sub- stituting therefor the words, " or to a clerk of the Circuit Court in the county." 3. Article 47 of the Civil Code is amended so as to read as follows : " Within the first six weeks of each year, the person who kept the said registers, or who has charge thereof, deposits in the prothonotary's office of the Superior Court of his district, one of the said duplicates, the delivery of which is acknowledged by a receipt which the said pro- thonotary is bound to give, free of charge." 4. Article 48 of the Civil Code is amended, by striking out the words- " or clerk," in the said article. €04 REGISTERS OF CIVIL STATUS, ARTS. 1236-1239. 5. Within three months after the passing of this Act, all clerks of the Circuit Court in any county shall deliver to the prothonotary of the Superior Oourt of the district in which such county is situate, all re- gisters of civil status then in their possession. 6. Together with the copy of the portions of the Civil Code required, by article 1237 of the Code of Civil Procedure, to be attached to the duplicate register mentioned in the said article, a copy of this Act shall likewibj be attached. 7. All registers which, since the coming into force of the Code of Civi Procedure, have been authenticated by any clerk of the Circuit Court and sealed with the seal of the said court, shall be held to have been and to be, as legally authenticated as if article 1236 of the said Code of Civil Procedure had originally been enacted as amended by section one of this Act. ■-. ISST. The duplicate register which is to remain in the hands of the priest, minister, or person doing the parochial or clerical duty of each Roman Catholic parish church, Pro- testant, or religious congregation, must be bound in a sub- stantial and durable manner, [A copy of the title Of Acts of Civil Status, in the Civi] Code, and of the firat, second and third chapters of the title Of Marriage in the same code, must be attached to such duplicate.] G. S. L. G. c. 20, 8. 1, § 3. Vide 32 V. c. 26, ss. 6, 7, under preceding article. 1)5138. Gur^a, churchwardens of fahriques, and other such administrators, in places where baptisms, marriages and deaths have taken place, and also the superior of communi- ties in which vows of religious profession have been made, are respectively bound to fulfil the requirements of the lav with regard to the registers of acts of civil status, and may be compelled to do so by such means and under such pains, penalties or damages as the law allows. 1930. Any person who desires to have any register rec- tified must present to the court a petition for that purpose, stating the error or omission of which he complains, and praying that the register may be rectified accordingly. 1239. REGISTERS OF REGISTRY OFFICES, AKTS, 1239-1242. 605 all clerks of the .onotary of the situate, all re- Code required, attached to the of this Act shall bhe Code of Civi ve Circuit Court Id to have been the said Code of >d by section one remain in the ' the parochial }h church, Pro- ound in a sub- w, in the CiviJ ,ers of the title ached to siich irticle. and other such marriages and Ir of communi- ive been made, jnts of the lav batus, and may ler such pains, ly register rec- that purpose, jomplains, and tordingly. The petition must be served upon the depositary of such register. C. P. C. 855. . 1340. The court may also order any person to be called in whom it deems interested in the application. C. F. C. 856. . , . ... Such person is thereupon summoned in the ordinary manner. . ,, 1341. Any judgment ordering a rectification must con- tain an order for the inscription of such judgment upon the two registers, and no copy of the act rectified can thereafter be delivered without the corrections thus ordered to be made. C. P. C. 857. CHAPTER SECOND. REGISTERS OF REGISTRY OFFICES. 1343. Every register of which the law requires the authentication, must, before any entry is made therein, be authenticated by an attestation, written on the first page and signed by the prothonotary of the Superior Court of the district in which the register is to be used ; and such attestation must mention the purpose for which such regis- ter is intended, the number of leaves contained therein, and the date of the attestation. Each leaf must be numbered in words, written at full length, and the prothonotary must write thereon the initial letters of hie name. G. 8. L. 0, c. 37, 8. 59. m 606 INSPECTION OF DOCUMENTS, ARTS. 1243-1246. CHAPTER THIRD. REGISTERS OF SHERIFFS AND CORONERS. 1943. The sheriff and the coroner of each district must keep a duplicate register for transcribing and registering therein all deeds or acts of sale made by them of real pro- perty in their official capacity, and when such register is filled one of the duplicates thereof must be deposited by such sheriff or coroner in the office of the prothonotary of the Superior Court for the district. Ibid. o. 92, s. 11. 1344. Such registers must be authenticated in the same manner as those of the registry offices mentioned in article 1242. Ibid. § 2. TITLE SECOND. OF INSPECTION OF DOCUMENTS, 134*1. Notaries are bound, upon payment of their lawful fees and dues, and without any judge's order, to give com- munication or copies of or extracts from any act or docu- ment forming part of their official records, to the parties or to their heirs or legal representatives. 1 Couchot, 84 ; 3 Brillon, 506 ; Ord. 1535, art. 12 ; 1 Pig. 54 ; G. P. G. 839 ; sed vide Bioche t. 4, p. 398, No. 55. 1346. They are not bound to give such communication, copies or extracts to other parties without an order from a judge [unless it is of such nature that it should be regis- i«?red]. Gou. loo. cit., 1 Pig. 49. 246. EIS. district must (1 registering 1 of real pro- Lch register is deposited by othonotary of 2, 8. 11. >d in the same Dned in article INSPECTION OF DOCUMENTS, ARTS. 1247-1253. G07 1947. If the notary refuses to give such communication, copies or extracts, as required, t^e person demanding the same may, by petition duly served upon such notary, apply to a judge for an order for inspection, which is granted upon proof of his right or his interest. 1 Pig. 49, 54; 1 Lacombe, 129 ; a P. a 839, 841. 1348. If communication only be demanded, the order fixes the day and hour when comnmnication of the act must be given. If a copy or extract be demanded, the order fixes the time at which it must be furnished. 1 Pig, 51. 1349. The service of the order of the judge upon the notary must give a sufficient dela r for a compliance with such order. Ibid. tftSO. The copy or extract must be certified to have been delivered in compliance with the order ; and the no- tary mentions the fact at the foot of the copy of the ordei- that was left with him. Ibid. 47, 52, 53 ; G. P. 0. 842. 19Si. If the notarj' fails tc comply with the order of the judge, he is liable for all consequent damages, and to coer- cive imprisonment. Ibid. 45. of their lawful |r, to give com- ly act or docu- the parties or lovbchot, 84 ; 3 C. P. C. 839 ; bommunication, Ml order from a lould beregis- 1393. When the c.i;^'nal of any authentic act or a pub- lic register has been lost, destroyed or carried away, and any authentic copy or extract thereof exists, the holder of such copy or extract may apply to the court or judge for leave to deposit the same with such public officer as the court or judge will name, to be there used and considered as an original, the copies of which will be deemed authentic, Ibid. 54. 13«S3. [A similar application may be made by any party to a deed, in order to oblige any other party to the same, who is in possession of an authentic copy thereof, to deposit such copy for the same purpose, and such other party is I IS :; 608 FAMILY COUNCILS, ARTS. 1253-1257. bound to comply with the order of the court or judge in that behalf, under pain of all damages. The whole, nevertheless, at the cost and expenses of the party requiring such deposit, who is obliged to furnish him with a copy of the deed and to indemnify him for all travelling and other expenses.] 19£^. The petition must be served upon all other inter- ested parties mentioned in the act. ■ i ( i^ 13«StS. Upon satisfactory proof, the court or judge orders the document produced to be deposited in the prothonotary's or notary's oflBce or other public office in which the original was ; or if it is a notarial act, forming part of the records of a notary who is dead or has ceased to practise, then in the prothonotary's office in which the records of such notary are deposited ; and every regular copy of the document thus deposited avails for proof in the same manner as if such document was the original. TITLE THIRD. OF FAMILY COUNCILS. 1396. Whenever applicatioa is made to proWde minors, interdicted persons, absentees or substitutes, with tutors or tutors ad hoc, or curators, or to authorize such tutors or curators to do some particular act, or for leave to alienate immoveables belonging to persons who have not the fret exer- cise of their rights, or for the emancipation of minors, the judge or the court cannot act without previously taking the advice of a family council. 2 Pig. 6. 1937. Family councils are convened and compo&v^d in the manner provided in the ninth title of the first; book of the Civil Code. FAMILY COUNCILS, ARTS. 1258-1261. 609 ,dge in tbat evertheless, uch deposit, le deed and cpenses.] other inter- judge orders rothonotary's i the original ,he records of ., then in the : such notary Locument thus aer as if such •ovide minors, with tutors or such tutors or we to alienate t the fret exer- of minors, the ,sly taking the iompo&«jd in the Tbst; book of the 19tS8. Any person demanding the convocation of a family council must show that he has used due diligence to sum- mon the nearest relatives residins; in the district, and the delay for such notice is one intermediate day, when they reside at a distance less than five leagues from the place where the family council is to meet, with the usual addi- tional when the distance exceeds five leagues, according to article 75. 2 Pig. 302. 1399. The relations and friends must be sworn before giving their advice upon the matters submitted to them. a S. L a c. 48, s. 1, § 3. 1960. The minutes of the advice given by the relations and friends must be signed by them, or must mention the reasons which prevent them from signing. 1361. The Superior Cou^t and the Circuit Court, and any judge of the Superior Court at any place where sittings of either of the said courts are held and either in or out of term,* like jurisdiction in and may decide all matters in which the advice of a family council is required, and the proceedings in such cases must remain among the recurds of the court in which the application was made. C. S. L. C. c. 78, ss. 3, 23. 35 Vict. c. 6 {Qiie.) : .32. Ever since the coming into force of the Code of Civil Procedure, any judge of the Superior Court has had and hereafter shall continue to have the jurisdiction and power mentioned in article 1261 of tlio said code, at any place where the Circuit Court is held, and either in or out of term, t 1. A judge in the di'^frict of Montreal has no jurisdiction to take '"ognizance of an advice of relations taken in the district of Iberville, fur the election of a tutor and sub-tutor to minors whose domicile is at Montreal. Gauthkr exp. 17 L. C. J. 17, S. C. '873. • Have {?). fBut see the French vergion of the statute. 39 610 TUTORSHIPS AND CURATORSHIPS, ARTS. 12ti2-1266. TITLE FOURTH. OF TUTORSHIPS AND CURATORSHIPS. 1363. The proceedings to be taken for the appointment of tutors to minors and of curators to interdicted persons, emar cipated minors and absentees, are explained in the dif- fere]it titles of the Civil Code which treat of such matters respectively. C. C. liv. 1, tit. 9, arts. 4, 21, 74, 75; tit 10, arts. 4-10, 14-17 ; tit. 11, arts. 24, 25, 250. 1303. The proceedings to be taken for the aj-nointinsnt of curators to successions that are vacant or accepted under benefit of inventory, or to property judicially abandoned by insolvent debtors, are regulated under the respective titles in this code concerning f^ ich matters. 1364. The proceedings for the appointment of curators to the property of corporations that have been dissolved or declared illegal, are regulated in the Civil Code, under the tile Of Jorpuratio'os, and in the eighth chapter of the second book of the second part of this code. 136tS. The proceedings for the apjiointment of curators to substitutions ara the same as Ihose for the appointment ot tutoi- to minors. 2 Pig. 213. 1366. Every curator is bound, before acting as such, to make oath that he will well anfl Lruly perform the duties devolving upon him. Ibid. s. lO. 'A 162-1266. IMMOVEABLES OF MINORS, ETC., ARTS. 1267-1269. 611 TILTE FIFTH. PS. tie appointment rdicted persons, lined in the dif- of such matters ,74, 75; tit. W, the avTiointnient I- accepted under lly abandoned V)y ■espective titles in bment of curators been dissolved or I Code, under the Lpter of the second OF THi;: SALE OF IMMOVEABLES BELONOINQ TO MINORS OR OTHER DISQUALIFIED PERSONS. 1967 No voluntary alienation of immoveable property, or of shares or stock in manufacturing or financial associa- tions, belonging to minors or interdicted persons can be made without the order and permission of the court or of a judge. C. C, Tutorships and Minority, .56, 57. 1968. In addition to the formalities prescribed by the Civil Code, such alienation cannot take place unless, before t thereof (and if the sale is demanded on account of indi- visibility) and whether or not it can advantageously be divided. Form No. 53. In connection with article 1269. | On the day of in the year one thou- sand eight hundred and at o'clock in the noon, before me, the undersigned notary pulj- lic for Lower Canada, residing in the district , came and appeared , who affirms that, in conformity with the declaration made by Act before , notary, bearing date the , for the purpose of obtaining authority to sell, for the reasons therein set forth, the real estate belonging to , therein designated and described as follows, to wit : (ftere describe the real c*- tate) he did for the said purpose cause to be summoned be- fore us, to wit : in default ot relations, requiring us, they being present, to receive their advice as to the contents of the Act of De- claration aforesaid, and the parties above named having a])- peared, we have caused to be read the said Act of Declara- tion, the report of the experts made before , notary, and his colleague, and have taken and received from theui the necessary oath, and such oath having been made, they have all unanimously declared that they are of opinion that (Should there be a division of opinion, mention the sanu. and give the reasons therefor.) 89. say, the saiil and the saiil • the pui-pose .te belonging made by the , notary un the vahio yiint of indi- ntageously V.e IMMOVEAfiLES OF MINORS, ETC., ART. 1270. G13 year one thou- o'clock in led notary pub- , came ,, in conformity , notary, )se of obtaining t forth, the real srein designated •ibe the real t's- 5 summoned be- in default ot y being present. the Act of r>t- imed having ap- Act of Declara- , notary, }ived from theni been made, they of opinion that lention the samt lti70. The experts, after being sworn before the judge, prothonotary, clerk or notarj', must ascertain the condition and value of each immoveable, and the truth of the other circumstances on account of which the sale is demanded, and make their report by a notarial act, delivered in original form. Ibid. § 2. . , Form No. 34. In connection with ai-ticle 1270. I, . ' and I, , do make oath and swear that I will faithfully proceed to the performance of what is required of me by th" act of my appointment, exe- cuted before , notary, on the and that I will make a true report of my opinion on the whole matter, without favour or par- tiality for any of the parties interested in the matter in question. So help me God, Sworn before me, the undersigned notary. On the Form No. 5«S. In connection with Article 1270. day of in the year one thousand eight hundred and at o'clock in the noon, before me the undersigned Public Notary for Lower Canada, residing in the District of came and appeared the experts appointed by the act above executed by the undersigned Notaries, on who declare that having previously made oath as appears by the certificate hereunto annexed, they proceeded on the day of to the inspection of the real estate, 614 IMMOVEABLES C MINORS, ETC., ARTS. 1270-1272. If appurtenances and op«iidencies mentioned and described in the declaration of received by , Notary, the , and after due examination and obtaining every information necensary for the purposes men- tioned in the said Act of appoir tment, they value and esti- mate the said real estate {if there he several immoveahlea, they should he valued separately), and further, {if the sale is made on accov/nt of indivisihility) they declare that it cannot advantageously be divided. The said experts further declare that they are not related to the parties interested in the matter in question, nor to their legal representatives. Whereof act in original form is delivered at tfttl. If the experts cannot agree each must report his respective opinion, giving the reasons upon which such opinion is based. 1373. The report is submitted to the family council, to- gether with the application to be authorized. Ibid. s. 1, § 3, 8.2. Form No. 56. In connection with article 1272. Lower Canada, District of } To the Honourable the Judge {or Judges) of the Superior Court at &c., &c. A. {addition and pUiee of residence) humbly represents that he has caused the relations and friends of to be consulted by , Notary, at on the -1272. described in nination and lurposes men- ilue and esti- £re he several I, and further, f) they declare je not related lestion, nor to t must report his )n which such nily council, to- Ihicl 8.1, §3, of the Superior imbly represents s of to on the IMMOVEABLES OF MINORS, ETC., ARTS. 1272-1277. 615 (lay of , and has caused to be fulfilled all the proceedings by law recjuireil to be had in order to and submitted for your approval. And he therefore pmys that your honours will take those proceedings into consider- ation and homologate them, if they ought to be so homolo- gated, and you wi justice. At the on' thousand eight hundred 1978. [If the matter relates to the investment of moneys, or to shares or stock in manufacturing or financial associa- tions, the value thereof must be ascertained.] 1974. The judge, if he authorizes the sale, must fix an upset price for each immoveal)le, share or stock, and, inde- ])endently of the other conditions imposed upon the sale, such upset price cannot be less than the value ascertained by the experts. 2 Pig. 186. 137«l. If the judge refuses to authorize the sale, the rea- sons for such refusal must be given in writing, and form part of the record. 1976. The place and time of the sale must be published on three consecutive Sundays, at the door of the parish church of the place where the immoveables are situated ; or, if there is no church, at the most public place in the locality ; and notice thereof must be posted up immediately after the first publication, and such notice must contain a description of the immoveables. 2 Pig. 106-7-8. 1977. [If no higher price is offered than the upset price, the person applying for the sale may proceed to effect a pri- vate sale ; but he can only do so within the four months which follow the authorization, and for a sum not less than the upset price.] s^. IMAGE EVALUATION TEST TARGET (MT-3) 4^ 1.0 1.1 I£&|2j8 |25 ^ Uii 12.2 ^ U£ 12.0 iiy& 11.25 iu fliotpgraphic Sdences Corporation 23 WIST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 1^ If 616 IMMOVEABLES OF MINORS, ETC., ART. 1278. 1978. In the case of a voluntary licitation of an iiumove> able, held undividedly between a tutor and his pupil, and which cannot be advantageously divided, proceedings are had in the manner above mentioned, and no purchase of it by the tutor is valid unless the minor is represented at the sale by a tutor ad hoc. m 35 Vict. c. 7 (Que.) : Wliereas the formalities prescribed for the judicial sale of immove- able property belonging to minora, and others incapable of acting for themselves, have been established solely for the protection of the latter ; and whereas, in the case of the sale of immoveables of small value, the price thereof is frequently absorbed, to the detriment of minora and their creditora, by the observance of the formalities required for the sale of such immoveables : Therefore, Her Majesty, by and vrith the advice and consent of the Legislature of Quebec, enacts as follows : 1. Articles 298 and 290 of the Civil Code, and the fifth tiUe of the third part of the Code of Civil Procedure, shall not apply to the sale of immoveable property, the real value of which does not exceed the sum of four hundred dollara ; the sale of such immoveables may take place in the manner aet forth in the following section.' 2. Whenever the real value of the totality of the immoveable or im- moveables, belonging to minora or othera incapable of acting for them- selves, does not exceed the sum of four hundred dollara, a judge of the Superior Court may, upon petition presented to him to that effect by the tutor and subrogate tutor of such minora, or by the curator of such persons as are incapable of acting for themselves, after making summary enquiry as to the value of the said immoveables, order the sale thereof by public auction, at the prices and upon the conditions which he may deem just and reasonable to fix, in the interest of such minors or persons incapable of acting for themselves. 3. The judge shall have power to issue, under his hand, an order to compel the appearance before him, without costs, of any penon whom he shall deem qualified to afford him the information necessary to de- termine the value of the said immoveables, and anysuch peraon refusing to comply with such order, shall be guilty of a contempt of court. 4. Notice of the place, day and hour of such sale shall be given twice in fifteen days in the Qrubee Officiai Oasette, and in two newspa- pen indicated by the Judge, one of which shall be published in the French and the other in the English language in the district in which s. IMMOVEABLES OF MIN0B8, ETC., ABT. 1278. 617 tn immove- pupil, and eedings are irchase of it jnted at the leo! immove- e of acting for ,n of the latter; imall value, the , of xninorB and ■equired for the 3y and with the tB as f ollowB : afth title of the ipply to the Bale i not exceed the eablea may take moveable or im- acting for them- es, a judge of the to that effect by the curator of es, after making eables, order the )n the conditions interest of such land, an order to my person whom necessary to de- jh person refusing ipt of court. le shall be given d in two newspa- published in the I district in which the immoveables are situated, and in the.event of there being no news- papers published in such district, then such notice shall be given in the newspapers of the nearest district. 6. The Judge may, when he shall deem it advisable, dispense the petitioners from the necessity of publishing the notices mentioned in the preceding section, and authorize them to proceed to the sale, by consent, of the said immoveables, to any person paying the price fixed by such Judge. 36 Vict. c. 17 (Q«e) : -•— I . The Act of this E^vince, 35th Victoria, chapter 7, shall hereafter be read and interpreted as if each of the terms " immoveable" and " im- moveables" and " immoveable property" included, and they shall here- after be held to include any capital sumd belonging to minors or other persons incapable of acting for themselves, and all shares and interests of minors or other persons so incapable, in any financial, commercial, or manufacturing joint^stock company. 36 Vict. c. 18 (Que.) 1. The Act of this Province, 35th Victoria, chapter 7, shall in future read and be interpreted as if each of the terms " immoveable," " im- moveables," and "immoveable property" comprehended, and they shall be deemed to comprehend, all immoveable rights whatsoever be- longing to minors. T I*S1 61 8 OF THE AFFIXING OF SEALS, ARTS. 1279-1281, m TITLE SIXTH. PROCEEDINGS RELATING TO SUCCESSIONS, CHAPTER FIRST. OF SEALS. SECTION I. OF THE AFFIXING OF SEALS. m 1979. Seals can be affixed on the property of a succes- sion so long only as an inventory thereof has not been made. 2 Pi^. 270-1. 1980. Wher ' -or seals are required to be affixed, a com- missioner is nil for that purpose by a judge of the Su- perior Court in the district, upon the application of any party interested. 1 Pig. 439, 440 ; 2 Pig. 271 ; C. S. L. C. c. 78, 8. 2C ; a P. a 907-912. &98I. The affixing of seals may be demanded : 1. By all those who lay claim to the succession of the deceased, or to a community dissolved by the death of one of the consorts ; 2. By the creditors ; 3. By the testamentary executor ; 4. By the Crown, when there are no heirs or when the property is confiscat-ed. 2 Pig. 250 et aeq. ; 1 Cov/ihot, 134 ; C. P. a 909. . . Jl. OF THE AFFIXING OF SEALS, ARTS. 128S-1284. 619 NS. of a succes- ot been made. fixed, a com- ge of the Su- cation of any 1; G.a.L-G' ed: cession of the death of one or when the Cmcikoi, 134 ; The commissioner must draw up minutes of the proceedings, in which he must state : 1. The date ; 2. A designation of the person requiring the seals, and the nature of his right ; 3. The judicial order authorizing the affixing of seals ; 4. The attendance of the persons concerned, and what- ever they may state ; 5. A description of the places, bureaus, chests or closets over the openings of which the seals are affixed ; 6. A summary description of all articles found in view and placed under seals ; 7. The taking, at the cloue of the affixing of seals, of the oath of the parties residing on the premises, that nothing has been, either directly or indirectly, taken away by them or with their knowledge ; 8. The names and designation of the persons in whose custody the things under seals have been placed, and with ^ horn a copy of the minutes must be left ; 9. The signing of the parties present, or their being called upon to sign, and the reasons which prevented them from doing so. 2 Pig. 281-2 ; C. P. C. 914. . ^_ , 1983. The seals are affixed upon each extremity of a band passing over the keyhole of the lock, if there be one ; or, if not, upon the joint of the opening of the apartment or receptacle containing the effects, in such a manner that it cannot be opened without breaking the band or removing the seals. 2 Pig. 280-1-2 ; C. P. C. 915. 1984. If, when seals are being affixed, a will made in authentic form by the deceased is found open, the com- missioner enters a descr'ption of it in his minutes and de- livers it to the guardian ; but if the will is not in authentic form, or if it is closed or sealed, the commissioner, after seal- ing it himself, must deposit it in the prothonotary's office, together with his minutes, in order that the probate may be r> ' arr< it I' 620 OF THE AFFIXING OF SEALS, ABTS. 1284-1291. effected at the instance of the persons interested. 2 Pig. 282-3-4 ; G. P. C. 916. 198ff. When the commissioner finds the doors fastened, or is refused admittance, he must report the fact to the judge, who may authorize him to eraploy a locksmith and such force as may be necessary. The commissioner may, in the mean time, place guards around the premises, in order to prevent fraudulent removals. 2 Pigr. 284. 19§6. If, after he has entered the house, the commissioner meets with a declaration of opposition, he must mention it in bis minutes, in order that the matter may be referred to the judge ; but he mu^t place guards in the mean time to prevent fraudulent removals. Ibid.; C. P. C. 921. ,., ,.v t v 1387. The judge decides forthwith upon the opposition, either by countermanding or restricting the affixing of seals, or by ordering the proceedings to continue on. 2 Pig. 285; G. S. L. G. c. 78, 8. 23; G. P. G. 921-2. 1888. Whenever a reference to the judge has taken place, whatever is done or ordered thereon is certified at the foot of the commissioner's minutes. G. P. G. 922. I k & 1389. If there are no moveable effects, the commissioner must state so in his minutes. C. P. G. 924. ,...,,.. 1990. As soon as the commissioner has completed his minutes he is bound to deposit them in the prothonotary's office, to form part of the records thereof. jj . 1391. No second affixing of seals can take place, unless the first has been impugned as null. In affixing seals a second time the bands are placed across those of the first sealing. 2 Pig. 298. ^ v )1. OF THE REMOVAL OP SALES, ARTS. 1292-1297. 621 d. 2Pifif. SECTION II. B fastened, (the judge, [ such force ace guards it removals. jmmissioner Qention it in 'erred to the LC to prevent e opposition, xing of seals, 2PiSf. 285; taken place, at the foot of Bommiasioner lompleted his irothonotary's '\'. ■' ' ^ ■'■■ ' place, unless I placed across OF THE REMOVAI. OF SEALS. 1909. All applications for the removal of seals, when con- tested, and all oppositions made after the affixing of seals ha»- be encompleted,are heard summarily, unless the pleadings are ordered to be in writing. 2 Pig. 299. 1998. If the affixing of seals is declared null, an order is given at the same time commanding; the commissioner who affixed them, or some oth&r person to remove them without any inventory and to make a return of such removal ; and in default of this order being complied with, any bailiff holding a copy of the order may break them and make a return of his having done so. 2 Pig. 299-319 ; C. P. G. 940. 1994. If, however, seals have been affixed a second time, the complete removal cannot take place until both sealings have been adjudicated upon. 199«S. If seals have been affixed before the burial of the ileceased, they cannot be removed before the expiration of three days after such burial, except for urgent reasons, which must be stated in the order which authorizes the removal. 2 Pig. 315 ; C. P. C. 928. 1990. The removal of seals from the whole or from a part of the property may, in all cases, be demanded by such per- sons as may demand to have them affixed, and also by any person claiming to be owner of the effects placed under seal, according to their respective rights ; and the right to prose- cute such demand belongs to him who first made it. 2 Pig. 316-17-18 ; a P. C. 928. 1997. The removal of seals must be applied for by peti- tion to the court or judge, in order that the inventory may kii*f I I. WJ 622 OF THE REMOVAL OF SEALS, ARTS. 1297-1300. be proceeded with, after notifying all penons interested. Pig. 317-18 ; 1 C nummary manner, after the other parties have had notice of it. As soon as the order made upon such petition has been served upon the notary, he is bound to transcribe it in the inventory and to conform to it. 2 Pig. 841 ; C. P. C. 944. 1311. In the case mentioned in article 1309, the judge may order the exclusion of any of the parties when it is msmif est that they have no right ; or else he may order that proceedings shall be taken provisionally in their name, sub- 40 I- «t6 or THE BALI, ARTS. 1911-1817. ject to the respeotive protestationB of the parties and to their right to obtain a decision upon their pretensions after the inventory is completed. 2 Pig. 838. 1S19. With the consent of all the parties the sale may be proceeded with at once, as the inventory is being made ; and in such case no valuation of the effects by appraisers is ne- cessaiy. 1818. The surviving consort, or other person who ia bound to have the inventory made, is entitled to the custody of the inventoried effects in preference to any one else ; unless upon being referred to, 'the judge for some important reason, orders otherwise. 2 Pig. 343. 1314. The formalities and proceedings prescribed by the present section apply to all other cases in which an inven- tory is required. SECTION u. OF THE SALE. r. escribed by the ,hich an inven- is demanded by the Civil Code, [ace upon a day [n given. 2 Pi^- effects are situ- or ordered. a public crier, or \ and the moneys ' 2 Pig. 852. 41 Viot cap. 9 (^«.) : Whereas, in virtue of artioles 1320 and 672 of the code of civil pro- cedure, the sale of moveables belonging to a suooession of which one of the oo-heira is a minor, cannot be made before the expiration uf eight days to be reckoned from Sunday when such sale was announced by public notice, that is to say, the second Tuesday after the Sunday aforesaid ; whereas, since the putting into force of this code, several of these sales have been made on the second Monday, instead of the second Tuesday, after the Sunday aforesaid, as was the custom pre- vious to the code ; and whereas this irregularity may be prejudicial to the interests of a large number of families, and thnt, in consequence, it is urgent that these sales should be made valid ; Therefore, Har Ma- jesty, by and with the advice and consent of the Legislature of Quebec, enacts as follows : 1. Every sale of moveables belonging to successions of which one of the co-heirs was* a minor, made since the coming into force of the code of civil procedure until the coming into force of this act, on the second Monday instead of the second Tuesday following the first Sunday on which such sale ought to have been announced, according to articles 1320 and 572 of the code of civil procedure, is declared valid and shall be so considered in law ; provided always, that all the other for- malities required by law shall have been observed. 2. This act shai not affect pending cases. 628 OF BENEFIT OF INVENTORY, ARTS. 1S21-1326. - .■■i?3 CHAPTER THIRD. II ■I ,, OF BENEFIT OF INVENTORY. 1391. Benefit of inventory can only be granted upon petition to the court or judge, stating that an inventory uf the property of the succession will be or has been made, that the petitioner has not acled as heir, and that he believes it his interest not to confound his rights with the obliga- tions of the succession. 3 Ed. & Or. 104 ; C. S. L. C. c. 78, «»-2,6.§2. , , _ ^ l-'r 1339. [The beneficiary heir is bound to give notice of his character as such, by an advertisement, as mentioned in article 1010.] 1333. Benefit of inventory is only granted on condition of security being given to the amount and in the manner fixed by the court or judge, that the petitioner will render an account and pay to such person as may be entitled thereto whatever moneys he may receive. 2 Pig. 367-8. 1334. An heir under benefit of inventory cannot sell the moveable property of the succession without observing the formalities required for the sale of moveables under execution. 2 Pig. 362 ; C. P. C. 938. , -. 1339. The heir under benefit of inventory, cannot sell the immoveables without the consent of all the creditors and legatees of the deceased. 1336. [In casds where the beneficiary heir has any claims to exercise against the succession, he must cause a curator | to be named, the same formalities being observed as are | prescribed for the appointment of curators to vacant suc- cessions.] )26. PROVISIONAL POSSESSION, ARTS. 1327-1330. 629 CHAPTER FOURTH. granted upon inventory of as been made, tiat he believes ith the obliga- '. S. L. G. c. 78, give notice of IS mentioned in ted on condition id in the manner ioner will render e entitled thereto 1367-8. . itory cannot sell without observing moveables under itory, cannot sell all the creditors Iheir has any clams kist cause a curator L observed as are [tors to vacant sue' PROVISIONAL POSSESSION. 1397. Provisional possession, whenever it may be de- manded, roust be applied for by petition to the Superior Court, in the district in which the absentee or deceased person had his last domicile, or, if he had no domicile in Lower Canada, in the district in which the property is situate. 1338. The petition in the case of absentees must be accompanied with an act of notoriety, by three witnesses duly sworn, and establishing the facts upon which the peti- tion is based, and also with such other proof as the court may deem necessary. 1. Where a party petitions to be piit in provisional possession of an estate or succession devolved to an absentee, the petition must be ac- companied by an inventory not only of the property of such succession, but of the part belongin^f to the absentee, in order that the Court may determine the amount of security to be given by the petitioner. Exp. DeOroabois, 4 R. L. 389. 1339. [Provisional possession cannot be granted until after notice has been given and published, in the manner required for the summoning of absentees, calling upon all persons who may have any rights against the succession or the property in question to bring their claims before the court.] 1330. [The proceedings upon such claims and upon the petition for provisional possession are the same as upon or- dinary suits.] If II !: m. Mi- mi s 8s i* il ■♦ 630 OF VACANT SUCCESSIONS, ARTS. 1331-1336. CHAPTER FIFTH'. OP VACANT SUCCESSIONa 1331. If the natural or testamentary heir renounces the succession, and no person comes forward to accept it within the delays allowed for making an inventory and deliberating ; or if there is no known heir, the succession is deemed vacant. 1333. When a succession is deemed vacant, any creditor or legatee, or the heir who has renounced, may demand the appointment of a curator to such vacant succession. The judge proceeds to such appointment after taking the advice of the relations and creditors of the de- ceased, convened in the manner prescribed by such judge. 1334. The curator is bound : 1. To make oath that he will faithfully and to the best o^ his ability administer the property of the succession and render an account thereof ; 2. To give notice of his appointment in the same manner as curators to the property of dissolved corporations ; 3. To cause an inventory to be made, observing the same formalities as in ordinary successions ; 2 Fig. 510. 4. To cause the moveables to be sold, observing the same formalities as in the case of successions in which minors are concerned. 1339. He cannot sell the immoveables, nor shares or stock in manufacturing or financial associations, without the con- sent of all the parties interested. Ibid. 1336, He is bound to render an account of his adminis- tration, in the same manner as any other curator, and also from time to time whenever required by a competent court or by a judge to do so. Ihid., 611. 6. OENKRAL PROVISIONS, ARTa 1337-1340. 631 •shares or stock ithout the con- if his adminis- rator, and also jm petent TITLE SEVENTH. nounces the jpt it within leliberating ; amed vacant. any creditor demand the ision. ntment after )rs of the de- juch judge. to the best of uccession and same manner utions ; rving the same 510. rving the same Lch minors are GENERAL PROVISIONS APPYING TO THE DIFFERENT TITLES OF THE THIRD PART OF THIS CODE. 1337. In all proceedings under the different titles of the third part of this code, the delays upon summons are the same as those prescribed in article 890. 1338. All applications made or proceedings brought be- fore a judge must remain in the records of the court and form part thereof. 1339. The prothonotary of the Superior Court may exor- cise all the powers conferred upon the court or a judge thereof ; but any decision by such prothonotary is subject to be revised by a judge, upon application being made to that effect, after notice given to the persons interested. G. 8. L. C. c. 78, 88. 24-5. 1340. [All decisions of the court or a judge are aL *> subject to a review by three judges of the Superior Court, according to and in conformity with the provisions contained in articles 494 and following.] C. 8. L. C. c. 86, a. 4; 27-28 V. c. 39, 8. 20. I! 632 OF ARBITRATIONS IN OENIOIAL, ARTS. 1341-1345. lit « / TITLE EIGHTH. OF ABBITBATIONS IN GENERAL. If I/-? ' i S 1341. Submission is an act by which persons, in order to prevent or put an end to a lawsuit, agree to abide by the decision of one or more arbitrators whom they agree upon- Pothier, Proc. 109; 1 Couchot, 30. 1. Under the olanse or condition in policies of insurance, that, in case of diapiite between the parties, it should be referred to arbitration, the courts are not ousted of their jurisdiction, nor can they compel the parties to submit to a reference during the progress of the suit. Scott V. The Phanix Assu/raiuse Co. S. R. 162, K. B. 1823. 1343. Those persons only can enter into a submission who have the legal capacity to dispose of the objects com- prised in it. 1 Cmic. 30 ; C. P. C. 1003. 1. The Code does not prechide parties from stipulating that the arbi- trators should hear the respective parties and their evidence, or de- clare them to have made default. Breakey v. Oiirter et al., 4 Q. L. R. 332, S. 0. 1878. 1343. The appointment of arbitrators by the court is regulated in the second part of this code. See ante ar*s. 341 et aeq. . 1344. Deeds of submission made out of court must state the names and additions of the parties and arbitrators, the objects in dispute, and the time within which the award of the arbitrators must be given. Poth. Proc. 109 ; contra C. P. a 1007. 134«l. Submissions must be in writing. Poth. Proc. 109 ; a p. a 1006. OF ABBITRATIONS IN GENERAL, ARTS. 1345-1346. 683 1. A reference to arbitrtton required that they ■hoold finally adjust, settle and determine the precise state of accounts between the parties, and the precise amount which either of the parties should pay to the other ; but the arbitrators by their award merely determined in a gen- eral way how the matters in dispute should be adjusted without deter- mining anything precisely — Held, that no action would lie on such an award. Colaon t. Ash Jb Torrance, 18 L. C. J. 281, 8. 0. Potft.Proc.109; 1346. The arbitrators must hear the parties and their proofs respectively, or establish a default against them, and decide according to the rules of law ; unless by the submis- sion they have been exempted from doing so, or unless thej have been named as mediators. [The witnesses to be examined before the arbitrators may be sworn before the prothonotary or the clerk of the Circuit Court of the locality, or before a Commissioner of the Supe- rior Court]. Poth. Proe. 199 ; C. P. C. 1009, 1019. 1. The award of an arbitrator and amiable compositeur which does not state that he heard the parties, is illegal. Fanner t. O'NeiU, 22 L. 0. J., 76 S. C. 1878 ; 1 Legal News, 220. 2. Where a reference to arbitrators allowed the parties two days to produce papers, &c., and the award was made by the arbitrators on the day following the reference without their having had auy communica- tion with the parties — Held, that such award was premature and null. Chapman et oi. v. The Lancashire Fire Insurance Co. & Fraser, 13 L. C. J. 36, S. 0. 1868. 3. An order for execution was asked from the court upon an award made under the Com Exchange Act. Under that Act, the Com Ex- change has power to appoint arbitrators to settle disputes between its members. Certain formalities are prescribed, and among others that the arbitrators must be sworn, and that there must be a submission in writing at the commencement of the proceedings, and all questions connected with it may be reviewed within five days after the award itself. The award, if confirmed, is then a final one, and execution may issue upon it. The arbitrators, on the 28th of June, made an award against the defendant, which was confirmed by the Board of Review. The plaintiff now moved for an exequatur, and the defendant answered, alleging irregularities, among others that the arbitrators had not been sworn. Defendant, however, had objected to nothing until after the award — Held, that as the formalities had not been complied p J I 684 OF ABBITBATIONS IN OBNERAL, ARTS. 1346-1348. with, the plaintiff oould not auooeed, and the motion would be rejected , but without costs, as defendant had not objected until after he had seen what the award was. MitehM r. BtMert, 2 R. 0. 480, S. 0. 1872. 4. An award in arbitration is not absolutely null because the wit* nesaes examined have not been legally sworn. Tremblay v. Tretnblay, 3 L. 0. R 482, S. 0. 1863. 6. In an action brought upon a report of arbitrators the defendant may contest the validity of the report, where it does not set forth that the witnesses have been heard, by alleging that the arbitrators refused to hear his witnesses and the defendant will be allowed to prove such refusal. OtteU d Joseph, 9 L. 0, B. 440, Q. B. 1869. 6. When several matters are in dispute, and are referred to arbitra- tors, they must decide upon the whole of them, and must hear the parties on all of them, otherwise the court will set aside the award in such case. Fairfield & Butchard, 3 Rev. de Ug. 367, K. B. 1821. 1347. During the delay fixed by the submission the ap- pointment of the arbitrators cannot be revoked, except with the consent of all the parties. If the delay is not fixed, either of the parties may revoke the submission when he pleases. ICW. 30; C.P. C.1008. 1348. The submission becomes inoperative : 1. In the case of the death, refusal, withdrawal or inabi- lity to act of one of the arbitrators, unless seme clause pro- vides that it shall avail notwithstanding, or that such arbi- trator shall be replaced by another, chosen by the parties or by the remaining arbitrator or arbitrators, or otherwise ; 2. In the case of the decision not being given before the expiration of the delay fixed ; 3. By the failure to agree, if the appointment of a third arbitrator has not been provided for ; 4. By the mutual consent of the parties ; 5. By the loss of the object which forms the subject of the submission ; -,"- '• 6. By the extinction of the obligation which formed the subject of the submission. 7. By revocation in the case of the preceding article. Boti- nvn, 647 ; Poth. Proc. 109 ; 1 C(m. 30 ; 0. P. C. 1012. 148. OF ▲RBITBATI0N8 IN GENERAL, ABT8. 1849-1862. 686 Mtejeoted, [terhe had S. 0. 1872. M the wit* . Tremblay, a defendant )t forth that iptoM refnwd prove »uoh sd to arbitra- iiu»t hear the the award in . B. 1821. sion the ap- except with fixed, either 1 he pleases. vb\ or inabi- clause pro- at such arbi- he parties or herwise ; an before the nt of a third he subject of h formed the artide. Bon- 1012. 1849. Arbitrators cannot be recused, except for reasons which have arisen or have been discovered since their ap- pointment C. P. a 1014. ISffO. If the arbitrators fail to agree and the appoint- ment of a third arbitrator has been provided for, snch ap- pointment is made in conformity with the submission, and the case is examined over again. IStil. No award of arbitrators can be rendered when there are more than one^ unless the two named or one of these and the third arbitrator agree upon each item of the award. 1 Com. 31. 1. An award by two of three arbitrators is aufficiont. Meikltjohn v. Youiig, 1 Rev. de Ltfg. 510, K. B. 1811; S. R, 43. 13A3. Awards of arbitrators are made out in notarial form, or deposited with a notary, who draws up an authentic act of the deposit, and they must be given or pronounced to the parties, or served upon them, within the delay fixed by the submission. Poth. Proc. 109 ; 1 Cou. 30 ; 1 Bomier, 235 ; 0. P. 0. 1026. 1. The deposit of an award cannot be made by one who has ceased to be arbitrator. Sevigny v. Prowncher, 1 Q. L. R. 122, S. C. R. 1875. 2. In Lower Canada, notaries have power to receive a report of arbi- trators, and to give certified copies of the swearing in of the arbitrators annexed thereto. Tremblay <& The Champlain and St. Lavorence Bailway Company, 5 L. 0. R. 219, Q. B. 1855. 3. And such power was specially recognised as belonging to them by the statutes 2 Will. IV. cap. 58 & 13 & 14 Vict. cap. 114. Roy db The Champlain and St. Lawrence BaUtoay Company, 6 L. C. R. 277, Q. B. 1856. 4. Where to an action on an award or compromise, the defendant pleaded want of service of the award within the delay fixed by law and by the terms of the compromise — Hdd, that in consequence of such default of service, the award w... absolutely 'null Blancheteiuxv. Charr&n, 4 L. C. J. 8, Q. B. 1842. If! ^^ 686 OF ARBITBATIONS IN OBNERAL, ARTS. 1362-1854. 6. An ftwud of arUtnton and amiabUt eompoiikun, not signified to the partiee interested until after the delay limited by the agreement for the rrndering of the award, ia nail and void, notwithitanding such award may have been rendered within the preeoribod time. Chapman V. Hodaon, 9 L. C. J. 112, 8. 0. 1864. ISffS. Extra-judicial awards of arbitratora can only be executed under the authority of a competent court, upon a suit brought in the ordinary manner, to have the party con- demned to execute them. 18(14. [The court before whom such a suit is brought may examine into any grounds of nullity which affect the award, or into any questions of form which may prevent its being homologated ; but it cannot enquire into the merits of the contestation ; nevertheless, when a penalty has been stipu- lated in the submissior, the court may do so whenever the party contesting has paid or tendered the amount of the penalty either to the party who accepts the award or into court.] Poth. Proc. 110 ; 1 Cou. 30; SL. C. R 482. 1 . A party who haa submitted a matter to arbitrators cannot, after the arbitrators have made their award, call for the decision of the ordinary tribunals without previously paying the penalty stipulated in the arbitration bond, unless the award be absolutely null. Tremblay V. Tremblay, 3 L. C. B. 482, S. C. 1863. 2. The Superior Court has jurisdiction over an arbitrator appointed by the Dominion Oovemment under section 142 of the British North America Act, while acting as such in the Province of Quebec, and may inquire whether such arbitrator is in the legal exercise of his office. The Attomey-Oeneral v. Gray, 15 L. C. J. 306, S. C. 1871. I !i f ' ',; i"„' ?t 164. ■ignifiedto reementfor nding tuoh Chapmon n only be irt, upon a party con- rought may the award, at its being erits of the been stipu- henever the lount of the j^ard or into 482. « cannot, after deciflion of the alty Btipulated null. Tremblay fcator appointed BritiBh North uebec, and may f h« office. The DIVISION OF LOWER CANADA INTO DISTRICTS, ART. IS55. 637 TITLE NINTH. DIVISION OF LOWER CANADA INTO DISTRICTS FOR THE ADMINISTRATION OF JUSTICE. ISffff . [Lower Canada is divided into twenty districts, in the manner set forth in the following schedule, the first column whereof contains the name of each district ; — the second column, the places which are comprised within the district ; — and the third column the name of the place at or near which the sittings of the Superior Court are held, and where the district court-house and gaol are situated :] SCHEDULE. NAMES OF DI8TBI0T8. CHIEF-PlJ^CKa. Ottawa. Montreal.. Terrebonne.. Counties of Ottawa, and Pontiac. CountieBof Hochelaga, Jacques Oartier, Laval, Vaudreuil, Soulanges, Laprairie, Chambly, Verch^res ; and the City of Montreal. Counties of Argenteuil, Two Mountains, and Terrebonne. Village of Aylmer. City of Montreal. Village of St Soholas- tique. 1! I * 11 688 0ITI8I0N or LOWIB OAMAOA INTO DISTBICIB, A£T. 1855. If AMU Of OMTBIOTB. JoUette. Riohalieu. Three Riven . Quebec, Sagoenay.. Ohiooutimi ■ Gaap^. Rimoiuki Kamouraska Montmagny. FLAOU 00MPBI81D. OaiBV-PLAOM. Oountiea of L'AMomption, Montcalm, and Joliette. Oonntiea of Richelieu, Yamatka, and Berthier. Oountiea of Maakinongtf, St. Maurice (including Oityof Three RiTon), Ohamplain, and Nicolet. Counties of Portneaf, Quebec, Montmorency, Levis, Lotbini^re ; and the City of Quebec. Counties of Charlevoix, and Saguenay. County of Ohicoutimi. Counties of Gaspi, and Bonaventure. County of Rimeuski. Counties of Kamouraska, and Temiscouata. Counties of L'Islet, Montmagny, and Bellechasse. Town of Industrie. Town of Sorel. City of Three Rivers. City of Quebec. Parish of St. Etienne de la Malbaie or liurrny Bay. Ohicoutimi. New Carlisle, in the Co. of Bonaventure. Perc^, in the County of Oaspft. Parish of St. Germain de Rimouski. Parish of St. Louis de Kamouraska. Village of Montmagny. k«t. 1856. DirmOH IHTO DISTRICTS, ABTB. 1855-1306. 689 LAOM. iuitrie. irel. ree River*. jebeo. St.Btiennede taie or Murray -rliale, in the [Bonaventure. the County of [f St. Germain louski. If St. Louis de araeka. ai Montmagny. KAMM OF DMTRIOn. Bcauoe. ArthabMka.. St. Fnnda. Bedford. St. Hyacinth Iberville ww. Beauhamoia , CHIUr-PLAOU. Ooontias of Beauoe, and Dorchester. Ooontiea of Mesantio. Arthabauca, and Dnunmond. Oounties of Richmond (including the town of Sher brooke), Wolfe, Oompton. and Stanstead. Oounties of Shefford, Missiaquoi, and Brome. Oounties of St. Hyacinth, Bagot, and Rouville. Oounties of St. John, Napierville, and Iberville. Oounties of Huntingdon, Beauhamois, and Ohateauguay. Parish of St. Joseph de la Beauoe. Parish of St. Ohristophe d'Arthabaska. Town of Sherbrooke. Nelsonville, in the town- ship of Dunham. Oity of St. Hyacinth. Town of Si. John. Town of Beauhamois. 1390. [If the name of the place which is the chief-place of a district is changed, such place nevertheless cx)ntinues to be the chief-place under its new name. If the name of such place has been changed since the passing of the Lower Canada judicature acts of 1857 and 1858, and is different from that mentioned in the above schedule, the chief-place must be designated by the uame given by such change.] U' i- k it y ':»; 640 nMAL PB0TI8I0NS, ABTB 1857-1360. [The officere connected with th«> administratioD of justice in each of the new districts rreated by the Lower Canada judicature acts of 1857 and 1858 are the same as in the old districts subHiHting immediately before the time when Huch new districts wore constituted, and proper persons may in like manner be appointed to fill such offices ; an'l all the provisions of law touching such offices respectively, )ts wel! with regard to the security to be given by tho persons hold- ing the 8ame,or the appointment of depuiies, uu wit': regard to other matters, extend to the like officer In the now dis- tricts, subject always to any provisions of any other act then in force.] 13ff8. [The bardisue of Quebec, a? defined in chapter 75 of the Consolidated Statutes for Lower Canada, is and always has been part of the district of Quebec. The banlieue of Three Rivers is and always has been part of the district of Three Rivers.] FINAL PROVISIONS. 1359. The forms contained in the appendix to this code, whether in connection with this code or with the Civil Code, or others to the same effect, may be used in the cases to whicn they are intended to apply. 1360. The lav:» .;oticeiTii.g procedu. e in force at the time of the coming into force of this code, are abrogated : 1. In all cases in which this code contains any provision having expressly or impliedly that effect : 2. In all cases in which such laws are contrary to or ii^ consistent with any provision of this code, or in which ex- press provision is made by this code upon the partic>i%^ matter to which such laws relate : riSAl. PROVIHIONH, ARTH. 1360-13G1. 641 the Lo'wwr I Mine M in jtiniewben yononn may an'l aU the wely, ^^-^ ^*'^^ i wil'. regard the now dw- >ther act then in chapter 75 ,18 and always le banlieueot the district of Except alwayn that tm fogards proccodingn, matters and thin)^ anterior to the coining into loroe of thin code, and to which its provisions could not apply without having a re- troactive effect, the provisions i>f law which without this code would apply to such proceedings, matters and things remain in force and apply to them, and thiH code applies to them only so far as it coincides with such provisions. If in any article of this code founded on the laws existing at the time of its promulgation, there be a differ- ence between the English and French texts, that version shall prevail which is most consistent with the provisions of the existing laws on which the article is founded ; and if there be any such difference in an article changing the ex- isting laws, that version shall prevail which is most con- sistent with the intention of the article, and the ordinary rules of legal interpretation shall apply in determining such intention • ix to this code, i the Civil Code, I in the cases to torceatthetime gated : any provision jntrary to or lu or in which t ^• the partic*^^ END OF THE CODE OF CIVIL PROCEDURE. 41 642 OFFICERS OF THE COURT. RULES OF PRACTICE OF THE SUPERIOR COURT FOR LOWER CANADA. CHAPTER I. OF THE OFFICERS OF THE COURT. I. — That the Queen's Counsel, and barriaters who practise in this Court, do appear when in Court, habited in black and in such robes and bands as are worn by the Queen's Counsel and barristers in West- minster Hall, as heretofore hath been used, and that no Queen's Coun- sel, or barrister, be heard in any cause who is not so habited. II. — That every attorney practising in this Court, do file in writing, in the ofHce of the prothonotary, an election of his domicile as such attorney, at some place within a mile of the Court House, at the place where he practises, and that in default of his so doing, he shall be con- sidered to have elected his domicile as such attorney for all intents and purposes in the office of the prothonotary at such place. C. P. C. art. 85. III. — That the prothonotary of thit Court, do appear when in Court, habited in black and in such robes and bands, as are worn by the pro- thonotary in Westminster Hall, as heretofore hath been used ; that the sheritT, when in court, do appear habited in black with his robe, his wand of office and sword as heretofore hath been used ; and that the crier, when in court, do appear habited m black and in such robi- as is worn by that officer in Westminster Hall. IV. — That the offices of the prothonotary and of the sheriff be open on every juridical day during term, and also in the districts of Que- bec and Montreal, on every Monday being a juridical day, from the hour of eight in the morning until the hour of six in the afternoon ; GENERAL ORDERS. 643 [^A^ADA. and in the Districts of Quebec and Montreal, during vacation (Mon- days excepted) from the hour of nine in the morning until the hour of four in the afternoon of every juridical day, and in the Districts of Three Rivers, St. Francis, and Gasp6, during vacation, from the hour of nine in the morning until noon, and from the hour of two to the hour of four in the afternoon. V. — That the sheriff, the prothonotary and the crier do personally attend in court, in their respective places, ck die in diem, during each term from the opening until the rising of the Court, and in like man- ner during all sittings of the Court held in vacation. VI. — That no barrister or attorney, prothonotary, sheriff, crier, bailiff ur sheriff's officer, shall be bail or surety in any action or proceedings cognizable by this Court, or by any judge thereof. VII. — That all orders and rules for the conduct and regulation of the sheriff in the execution of his duty, shall extend to the coroner, in all cases in which such duty shall be executed by him. C. P. C. art. 466. practise in this ■d in such robes arristers in West no Queen's Coun- habited. do file in writing, B domicile as such [ouse, at the place L he sbaU be con- ey for all intents * place- O.P.O. L when in Court, , worn by the pro- „ been used ; that [lack with his robe, leu used; and that Landinauchrok' the sheriff be ope'^ L districts of Que- [dical day, from the L in the afternoon , CHAPTER II. (JENERAL ORDERS. VIII. — That the rules and orders of practice of this Court shall be fairly entered by the prothonotary in a book to be by him kept for that purpose, and all decisions of this Court on points of practice, shall also be entered by the prothonotary, when so directed by the court, in another book to be by him kept for that purpose — to each of which books there shall be an index, and all practitioners of this court shall, during office hours, have access thereto, and therefrom be allowed to take extracts and copies gratis. C. P. C. art. 29. IX. — That all writs and other practical forms, which are or shall be settled by this court, shall in like manner be fairly entered by the pro- thonotary in a register to be by him kept for that purpose, to which there shall be an index, and all practitioners of this court shall at all times, during office hours, have access thereto, and therefrom be al- lowed to take extracts and copies gratis. X. — That every wilful breach of an order or rule of practice of this court (for which no fine or other specific punishment is provided in the body of such rule or order) shall be considered a contempt of court, and punished accordingly. K r «V t"-^ K^' m. • r 1' 1^ ' w 644 CERTIFICATES OP SERVICE, ETC. XI. That in computations of time no fractions of a day be allowed, 'Hor shall any Sunday or binding holiday (JSte d'obligation) be reckoned unless otherwise provided for by law. C. P. 0. art. 24. XII. — That whenever any delay shall expire on a non- juridical day, such delay shall be enlarged to the next juridical day. 0. P. 0. art. M> XIII^ — That no paper of any description shall be received by the prothonotary, in any cause, unless the same be regularly docketed by mentioning the title and number of the cause, the general description vo| such paper, and the party filing the same. ' *, CHAPTER III. OF PROCESS AD RESPONDENDUM. XIV.— That a register of all and every process ad respondendum whatsoever, issued from this court, specifying the names of the parties, the amount demanded, the cause of action, and the return day of each process respectively, shall be kept by the prothonotary, to which all persons, during office hours, shall have access gratis. XV. That no process ad respondendum, of any description, shall issue until an appearance for the party requiring such process, and a prcedpe for the same, be filed in the office of the prothonotary. C. P. a art. 44. XVI. That no process ad respondendum, founded upon affidavit, shall issue in any suit until the affidavit upon which such process is founded be filed by theplaintifl in the office of the prothonotary. CHAPTER IV. OF CERTIFICATES OF SERVICE, ETC. XVII. That every affidavit or certificate of service shall particu- larly describe the manner, place and time of service, in letters, and also the distance from the place of service to the court house at which the party is required to appear. C. P. C. art. 78. APPEARANCES— AND BAIL. 64r )e allowed, ,e reckoned iridicftl day, ! p. 0. af^- jived by the docketed by kl description XVIII. — That all services on the attorney of any party be made be- tween the hours of nine u. m. and six p. m. , from the twenty-first of March to the twenty-first of September ; and between the hours of nine a. m. and five p. m. during the remainder of the year. That every service of process and other service on any tiarty to a suit be made betwesn the hours of eight in the forenoon and the hour of seven in the afternoon. C. P. C. art, 55. CHAPTER V. id respond«nd«»" ^es of the parties. Urn day of each iry, to which all iescription, shall h process, and a lonotaxy. C.P. Id upon affidavit, Ih such process 18 ^othonotary. RTC. Lvice shall particu- Le, in letters, and Lrt house at which ON APPEARANCES — AND OF BAIL. XIX. — That of every appearance which shall be filed for a defend- ant a duplicate or certified copy shall be served during the same day upon the plaintiffs attorney. C. P. C. arts. 83, 462. XX. — That no change of attomies shall in any case be allowed without leave of court, or of a judge in vacation. C.P. C. art. 200 et seq. XXI. — That an attorney who «hall appear for any person shall not, without leave of court or a judge in vacation, be permitted to with- draw from the suit in which he shall have so appeared. C. P. C. art. 201. XXII. — That in every suit in which a party shall cease to be repre- sented by attorney he may be compelled, by rule of court, to substi- tute an attorney or an appearance in person ; and in default of a plain- tiff so doing, his action shall be dii^missed with costs, sauf A se pourvoir; in default of a defendant so doing it shall be competent for the plain- tiff to proceed exparte. C. P. C. art. 203. XXIII. — That no surrender of any defendant, by himself or by his bail, shall be valid or effectual, or allowed as such, unless such surren- der be made in open court, or before one of the judges of this court in vacation, nor unless the court or such judge before whom such surren- der shall be made shall have made an entry or minute of such sur- render, and shall have committed such defendant thereupon to the custody of the sheriff in discharge of such bail ; and in every case of surrender made before any judge of the court, the minute of such sur- render shall forthwith be returned into the office of the prothonotary and there be filed of record in the suit to which such minute shall re- late, and a copy of such minute shall relate, and a copy of such min- ute shall, by the prothonotary, be delivered with such defendant to the sivid sheriff. C. P. C. art. 831. 646 EXHIBITS AND COMMUNICATION OF PAPER8. CHAPTER VI. OF EXHIBITS AND COMMUNICATION OF PAPERS. ■■%■■ XXIV. — That all paper- writings whereon any declaration or other pleading is founded, or duly certified copies of such papers, shall, with lists thereof, be filed together with such declaration or other pleading respectively, and not afterwards, unless by the special permission of the court ; and that all other paper-writings which any party shall see fit to produce in evidence, together with the originals of all actes «(m« seing p^ivi, copies of which shall have been filed as hereinbefore di- rected, shall be exhibited and filed with lists before the enqu4te of the party producing the same be closed. C. P. C. aH. 99 et aet;. XXY. — That every list of exhibits shall be an index to all the ex- hibits therewith filed, by number, title, date and description, under the signature of the attorney or party filing such exhibits, and any ex- hibit which shall not be so mentioned in such list shall not be re- ceived. C. P. 0. aH. 99. XXVI. — That all delays to plead shall be reckoned from the day on which the exhibits, in support of the pleading to be answered, shall have been filed. C. P. C. aH. 103. XXVII. — That all parties to a suit shall be entitled to communica- tion of all exhibits and other paper-writings, filed in such suit, at the office of the prothonotary. C. P. C. aH. 104. XXYIII. — That of all exhibits or other paper- writings in any cause, being copies of actes authentiqiies or of papers sous seing privi, com- munication shall be given on the receipt of the party indorsed, dated and signed upon the list of exhibits, and such party shall be entitled tu retain such copies in communication during forty-eight hours ; it being expressly provided that no original paper-writings shall be removed from the office of the prothonotary for any cause whatsoever. , XXIX. — That no exhibit, in any cause, shall be withdrawn pending such cause, or within a year and a day from the final judgment in such cause, without an order of the court or of a judge in vacation ; and be- fore such exhibit or other paper-writing be withdrawn, a copy thereof (except of authentic instruments), certified by the prothonotary, shall be filed of record, unless otherwise ordered by the court or judge. t'S,V 18. PLEADINGS. 647 CHAPTER VII. PERS. ition or other ira, shall, with other pleading permiBsion of party shall see )f all actes sous lereinbefore di- I enqiUte of the t seed on the rdZe (/es en^u^^e^ shall remain thereon, until the enqu£te in such cause shall have been declared closed, and shall be held to be continued from day to day without any special application to that efiect. Provided always that if more than one day shall elapse without any proceeding or application in such cause, and without the same being specially continued to a day certain, no pro- ceeding or application shall thereafter be taken or received without notice of at least one day to the adverse party. XLVI. — That all interrogatories to be annexed to aiy order or com- mission, in the nature of a commiaaion rogatoire, unless settled by con- sent, shall be allowed by one of the judges. C, P. C. mi, 311. XLVII. That if any such order or commission shall not be returned on the day appointed for such return (if such there be) or within a rea- sonable time after the issuing thereof (if such order or commission be returnable without delay) it shall be competent for the parties to proceed in such cause, as if no order or commission had issued, un- less good cause to the contrary be shown on motion to that efiiect. — a P. C. aH. 316. XLVIII. — That either party shall, at any time, have a right, by application to the court in term, or to a judge in vacation, to cauBe the return to any order or commission to be opened, unless good cause to the contrary be shewn ; but the return to an order or com- mission, issued at the instance of the defendant, shall not be opened until the plaintifl"s enquite be closed. C P. C. ait. 313. XLIX. — That in all cases in whicli the service of a rule for aerment dieisoire, or for f aits et articles shall be made within the distance of five leagues from the court house, there shall be one intermediate juridi- dical day between the day of service and the day of return, and when •660 INSCRIPTION OF CAUSES FOR HEARING. "^fP' beyond that diatanoe, one intermediate juridical day aa above, and alio one interme'^'ite juridical day for every five leagues of distance. — (Addition ru. . promulgated subsequently : Quebec, Junu, 1864.) That a party served with a rule to answer interrogatories upon faii* et articlet, shall give his answers before the closing of the ettquite of the party who has obtained the rule, and that no answers shall be after- wards received, except by leave of the court, obtained on a special application for the same. C. P. C. aria. 223, 225, 446. CHAPTER X. OF THE INSCRIPTION OF CAUSES FOR HEARING. L. — That there be kept in the office of the [ rothonotary a roll to be called the rSle de droit, upon which shall be inscribed all causes for hearing, upon any issue of law, or upon the merits, or other matter. LI. — That no contested cause shall be heard upon any inscription on the rSle de droit unless two juridical days shall have intervened between the ''nscription and the day appointed for the hearing. C. P. Cart. -^82. LII. — That so Boun as any issue of law is perfectei', either party may inscribe the caiise on the r6le de droit for hearing on such issue ; and if, on the day appointed for the hearing, the party by whom such law issue hath been raised shall not appear, and his adversary shall appear, the pleading whereby the same hath been raised shall be dis- missed with costs. If neither party be present the inscription shall be discharged. LIII. — That so soon as the enquite upon any preliminary exception shall be closed, either party may inscribe the same upon the r6Ie de droit, for hearing on the merits of such exception, and if on the day appointed for the hearing thereof, the party excipient shall not appear, his exception shall, on the application of the adverse party, be dismis- sed with costs. If neither party appear, the inscription shall be dis- charged. LIV. — That as soon as the enguSte in any contested cause shall be closed, either party may inscribe such cause on the rSlr, de droit for hearing on the merits, and if, on the day appointed for t Ae hearing thereof, the plaintiff shall not appear, his actio shall, on the applica- tion of the adverse party, be dismissed with costs. If neither party appear, the inscription shall be discharged. or MOTIONS. U51 above, *nd of diatanoe. one, 1864.) eB upon fait* he etiqui**^^ BhaUbeaftor- on a special ABINO. lary a roll to be ,d all cautes for other matter, any inBcription liave intervened jr the hearing. ,. , either party on such iBBue ; ,y by whom such B adversary shall Bed shall be dis- inscription shall minary exception upon the r6h de and if on the day ahaU not appear, party, be dismis- ,tion shall be dia- iteu cause shall be le r6h de droit ior )d for tHe hearing ill, on the appUca- If neither party CHAPTER XI. i-' . '■ ^ ' . OF MOTIONS. LV. — That no motion be received or heard unless previous notice thereof, of at least one day, be given to thu adverse party, excepting the motions whereupon side-bar rules may be obtained, and those hereinafter specially mentioned. LVI. — That the parties shall not be heard ou any rule unless one day shall have intervened between the service of such rule and the day appointed for the hearing thereof. LVII. — That every motion founded on special matter shall contain the grounds on which such motion is made, and no party shall be per- mitted to urge any ground in support of a motion not set forth in such motion. LVIII. — That the following motions, being motions of course, may be made and filed in thu office of the prothonotary, and be by him re- ceived, and rules entered thereon, in the same manner as if made in open court : — 1 . For the sherifi" to return a writ — nisi ; 2. For particulars — nisi ; 3. For security for costs, the plaintiff being a person without that part of the province, heretofore Lower Canada, and stated so to be, in the declaration — nisi; C. P. C. art. 129. 4. To give security for costs — nisi ; 5. For a jury triiJ — nisi ; C, P. C. art. 350. 6. To strike a cause from the rSle de droit or rSle dea tnquites — nisi ; 7. For a reference to experts — nisi ; C. P. C. art. 322. 8. To set aside or confirm a report — nisi ; C. P. C. art. 346. 9. To pay money into court— niat ; 10. To file a retraxit — nisi ; 11 . To dismiss for want of proceedings — nisi ; 12. To discontinue cm payment of costs — nisi ; C. P. C. hrt. 450. 13. For aete to party that he does no! contest an opposition — nisi ; C. P. C. art. 586. 14 For a rule on defendant for main levie on such opposition — nisi ; 1 5. To homologate a report of distribution — nisi ; C. P. C. art, 749. 16. For the sheriff to bring in the body — nisi. '-if'^l^-. 052 TRIALS BV JURY. ;,"t- U I*' ■ w. LIX. — Thftt the foUuwing motiuni may be made and adjudicated upon without notice — to the advene party : 1. For judgment pursuant to confession, or to a verdict of jury ; C. P. C. art». m (md 426. 2. To defer or refer the Mrment decUiore ; C. P. V. art. 444, 3. Forfaita et articles; C. P. C. art. 222. 4. To obtain aete of the court. LX. — That a party intending to produce any affidavit or other paper- writing in support of any motion or rule, shall with the notice of such motion or copy of such rule, serve on the opposite party copies of the affidavits, or other paper-writings intended to be produced, and in de- fault of his so doing, the opposite party shall be entitled to delay, until the next day, to take communication of such papers ; C. P. C. arf. 462. LXI. — That t. > validity of every report of experts or award of arbi- trators shall be d( ided upon a motion, or upon a rule niti to homolo- gate the repoL*t, or to set the report aside, as the case may be. C. P. a art. S47. LXIl. — That every application for security for costs shall be made within four days I'rom the appearance of the party making such appli- cation, a p. a art. 107. LXIII. — That all costs to which, in any case, a party is entitled upon a motion in any way, be asked for at the time at which such mo- tion is made and heard, and not afterwards. CHAPTER XII. OF TRIALS BY JURY. m LXIV. That in every cause wherein a trial by jury may by law be had, the party desiring such trial shall declare his option, either by his declaration or plea, or by motion to be made within four, days after the issue Is perfected ; and after the said four days, either party may move for the appointment of a day for trial and the issuing of a vmire facias. C. P. C. art. 350 LXV. — That with every such motion the party shall be bound to de- posit, in the hands of the prothonotary, the sum of five pounds six shillings and eight pence, to be distributed as follows : — To the pro- thonotary, for striking the jury, for the writ of wn,ire facias, for calling ? Jr TRIALS HY JURY. 653 d adjudicated irdict of jury ; art. 4U. OT other paper- le notice of iuch ty copies of the iced, and in de- ititled to delay, OT« ; C. P. C. art. or award of arbi- le nwi to homolo- e may be. C. P. istsahallbe uiiide naking such appU- party i» entitled at which such mo- ury may by law be ji option, either by thin four .days after B, either party may e issuing of a wnire jhaUbeboundtode- of five pounds six _,llow8 -.-To the pro- im/act4. LXXIV. -Thiit in every cose in which a jury shall be sw(»m, and the plaintiff in such cause shall chcHtse at any time before the verdict of such jury shall be given, to become non-suit, and, for that purpose, shall witlulraw from the court, such plaintiff shall be called, and, not api>euring, the default of such plaintiff shall be recorded, and judg- ment of non-suit shall be entered in due course, dismissing such plain- tiff, Huuf d He, /Hrnrvoir, with costs to the defendant. C. F. V. art. 395. LXXV. — That a motion for judgment upon a verdict shall not bo made until after the expiration of four days in term from the day on which such verdict shall be recorded. C. P. C. art, 421. LXXVI. — That every motion for a new trial, after verdict, be made on or before the fourth day in term next after the day on which such verdict shall be recorded. C. P. V. art. 423. LXXVIl. — That every motion in arrest of judgment after rerdict be made on or before the expiration of the fourth day in term next after the day on which such verdict shall be recorded ; except when ii motion for a new trial shnlhhave been made, in which case such motion in arrest of judgment shall he made on the second day next after the day on which such motion for a new trial shall have been disposed of. G. P. 0. art. 424. CHAPTER XII. OPPOSITIONS AND EXECUTIONS. LXX VIII. — That no writ of execution shall issue until a pratcip* for such writ be filed in the office of the prothonotary, and that every such writ be endorsed or signed by the attorney or person by whom such writ shall be so sued out. — C. P. C. art. 545. liXXIX. — That a register of all writs of execution issued from this court, specifying the description of each writ, the parties to the cause OPPOHITIONH AND KXWUTIONH. (>5ft ( tho plaintiff thoreun, aiul Ami if the '. being cftUed, ) reoordud and lunniMing Huch C P. C. mi. be Bworn, and (ore the verdict jr that puriK)ae, called, and, not rded, and judg- wing Buoh plain- ;. P. C. art. 395. diet shall not bo from the day on 21. verdict, be made ay on which such ^ent after verdict lay in term next , except when a case such motion lay next after the been disposed of le until a pr(xcipt ry, and that every person by whom L issued from this larties to the cause in which it isauui, the niiinlHir «>f such causo, tlie name of thti attoniuy or person by whom such writ shall l>e suetl out, the amount to Iw levied by virtue thentof, the cause of action, the dato of tht* judgment on which such writ shall \w founded, tho day on which such writ shall issue, and thu return day thuruof bo made and kept by the prothono- tary in his otHce, to which all iiorsons shall at all times, during office hours, havo access ifrutiM. LXXX. — That to all oppositions de prevailed before the promidgatinn of the code of civU procedure : — Thrvt within four days after the return day of any writ of execution, and after the sheriff's return thereof, certifying that there are monies in his hands subject to the order of the court, the prothonotary shall prepare and file a report of distribution or col- location. XCI. — That the prothonotary shall prepare a list of all such reports filed, and that such list shall be posted up in some conspicuous place in the office of the prothonotary. XCII. — That any party intending to contest such report shall file his contestation at the office of the prothonotary, on or before the ex- piration of eight days next after the filing of such report ; provided always, that if the report of distribution be filed on any day other than a Monday, the delay for filing the contestation shall be computed from the Monday next following the day on which such report shall have been filed. C. P. C. art. 742. In the districti of Three Rivers, St. Fra}icis, Oaspi, Ottawa, Eamouraska, the following rule jyrevailed before the promulgatUm of the code of civU procedure : — That any party intending to contest such a report shall file his contestation (after a copy thereof has been served on the interested party^ at the office of the prothonotary, on or before the expiration of two days next after the filing of such report. XCIII. — That immediately after the delay for filing such contesta- tion shall have expired, if no contestation has been filed, the plaintiff may move that the said report be homologated with costs ; an I if the plaintiff omit to make such motion, on the juridical day next follow- ing the expiration of the delay for the filing of contestations, any other party collocated may make such motion. C. P. G. art. 749. —{Subsequent rule, June, 1854) : That immediately after the delay for tiling a contestation to a report of distribution shall have expired, if no contestation has been filed, the plaintiff may give notice that he will move on the first juridical day of the ensuing term, that the said report be homologated with costs ; and if the plaintiff omit to give such notice on the juridical day next 42 658 OFlKJSITIONS AND EXECUTIONS. li' following the expiration of the delay for the filing of contestation, any other party collocated may give such notice. That the said notice shall not be served on the parties ; but that the same shall be posted in the prothonotary's office, at least four days. — Ibid. XCIV. — That the rule obtained for the homologation of such report shall not be served on the parties, but that the same shall be posted in the prothonotary's office, as heretofore, at least four days. Ibid. - In the districts of Three Rivers, St. Francis, Oaspi, Ottaioa and Kamour- aska, the following rule prevailed before the promulgation of the code of civil proceedure. That the rule obtained for the homologation of any report or partial report shall not be served on the parties, but that the same shall be posted up by a bailiff of the court in the prothonotary's office, at least one juridical day. XCY. — That in every case in which a report of distribution shall be made and filed by the prothonotary, and a contestation of such report or of any claim or opposition on which such report shall be founded, shall be made and filed, such report, upon motion to be made as here- inafter mentioned, shall be confirmed and homologated, as to all uncon- tested claims and oppositions which shall precede in rank the claim or opposition which, by such contestation, shall be contested, and as to all other uncontested claims or oppositions (if any there shall be) which cannot be affected by such contestation ; and judgment according to such report, in so far as the same shall be so confirmed and homologated, shall be entered up and recorded, unless cause to the contrary shall be shewn. It being hereby provided that the rule for such partial homo- logation shall not be served upon the parties, but that the same be publicly affixed in the office of the prothonotary at least four days, and that the plaintiff shall have an exclusive right to more for the partial homologation of such report during the juridical day next following the expiration of the delay for the filing of contestations ; and if the plaintiff omit to move for the partial homologation of the report, with- in the said juridical day, immediately thereafter, any party collocated may move for such partial homologation. XCVI. — That none of the delays hereinbefore mentioned with re- spect to oppositions d fin de conserver, and reports of collocation and distribution, shall be held to run during the month of August. — Ibid. arts. 1, 463. INSCRIPTION EN FAUX. 659 «nte»tation, e Baid notice ill be posted ,f Buch report L be posted in B. Ibid.' In and Kamour- ^ of {he code of >gation of any ,B, but that the prothonotary's Ibution shall be of such report all be founded, e made as here- ^astoalluncon- Ink the claim or tested, and as to fe shall be) which ent according to md homologated, contrary shall be ich partial homo- that the same be Lat four days, and fe for the partial Iky next following [ions ; and if the the report, with- party collocated ientioned with re- [of collocation and Inth of August.— CHAPTER XIV. XCVII.— That any party requiring a notice of an application for a confirmation of title shall <^.jmand the same by praeipe. C. P. C. aria. 960, et aeq. CHAPTER XV. SAISIE ARRET AFTER JUDGMENT. XCVin. — That any party intending to contest the declaration of a tiers-saisi, shall file his contestation within eight days from the making of the declaration of the tiers-^aisi, if the attachment be an attachment after Julgment ; and if the attachment be an attachment before judg- ment, then within eight days from the rendering of the judgment in the original cause. C. P. C. ai-ts. 629, 864. XCIX. — ^That the rules, orders, and delays prescribed by law or by the court with respect to pleadings, enqvMes, and hearings upon de- mands in chief, shall be the rules, orders and delays with respect to aU pleadings, enquMes, and hearings upon the contestation of the decla- ration of any tiera-aaisi. C. P. C. arta. 627, 863. CHAPTER XVI. INSCRIPTIONS EN FAUX. C. — A party desirous of inscribing en /aux against an exhibit filed shall, by motion addressed to the court, pray leave so to do. C. P. C. arts. 159, et aeq. CI. — The motion for leave to inscribe en faux shall be signed by the party in whose name it is made, or by an attorney specially authorized 80 to do, and an authenticated copy of the power of attorney given shall be filed with the said motion. — {Siibaequent promulgation, June, 1864.) — That a motion for leave to inscribe en faux against an oxhibit tiled shall be made within four days of the filing of the exhibit, and not afterwards, unless allowed on special application for the same. Ibid, aH. 161. G60 INSCRIPTIONS EN FAUX. I/' -4 CII. — The party filing such exhibit shall, within a delay to be pre- scribed by the court, on motion of the plaintiff en faux, declare in writing whether he intends to avail himself of such exhibit in support of the allegations set forth in his pleadings. Ibid. art. 166. cm. — Should the party filing such exhibit omit to make such decla- ration in writing, signed by himself or his attorney ad lites, within the time prescribed, the said exhibit shall, by order of the court, on the motion of the plaintiff en /aiix, be taken off the files of the court, and shall thereafter be held and considered, to all intents and purposes, to have been withdrawn by the party who filed the same. Ibid. art. 166. CIV. — If the defendant en faux declares that ho does not intend to avail himself of such exhibit in support of his allegations, the said ex- hibit shall be taken off the files of the court, and shall be held and con- sidered to all intents and purpores, to have been withdrawn by the party who files the same. Ibid. art. 167. .^ \ CV. — If the defendant en faux declare his intention to avail himself of such exhibit for the purpose aforesaid, he shall file the minute there, of, if there be a minute, in the ofiice of the prothonotary, within such time as shall be prescribed by the court, and in default of so doing, the said exhibit shall, on motion of the plaintiff ev faux, be taken off the files of the court, and held and considered, to all intents and ])ur- poses, to have been withdrawn by the party who tiled the same. Ibid. ore. 167. CVI. — Two days after the plaintiff en faux shall have been notified of the tiling of the said minute at the ofiice of the said prothonotary, the said plaintiff shall file, under his own signature or that of his at- torney ad lites, his inscription en faux, containing all the moyens de faux, a copy whereof shall be served on the attorney of the adverse party. Ibid. art. 170. CVII. — If the said plaintiti' omit so to do, the leave granted to him to inscribe en faux shall, on motion of the adverse party, be set aside, and the plaintiff on the original demand allowed to proceed as if leave to inscribe eu/aua* had not been granted. CVI II. — When the wioi/e»M de /awic are filed, the defendant en /awe may move that the said moyens be declared irrelevant and inadmissible, on which motion it shall be competent to the court, if it reject the same, to declare the moyeiis de faux relevant and admissible, and o order the defendant en faux to file his plea thereto within a given de- lay, to be computed from the day of the making of the proc^ verbal next hereinafter mentioned. ADDITIONAL RULES. (Nl tobepre- declare in in support , Bocb decla- im within the ourt, on the e court, and purposes, to bid. art. 166. not intend to ,, the said ex- held and con- drawn by the io avail himself 5 minute there, ry, within such lit of so doing, «x, he taken off Intents and pur- he same. Ibid. ve been notified d prothonotary, that of his at- .fnoyemdefavx, adverse party. CIX. — That immediately after the rendering of the said judgment declaring the moyens de faitx relevant and admissible, the plaintiff or defendant en fmix may move that a prods verbid, descriptive of the exhibit filed, be made in the presence of the adverse party, or his at- torney ad lites. Tbid, art. 168. OX. — If the defendant en faux omit to file his plea, as ordered, the plaintiff e»i faux shall be allowed to proceed ex parte. CXI. — The plaintiff en /anx may, within two days from the day of filing of such plea, file a special answer thereto, if he think fit. CXII. — Either party may inscribe the cause on the r6le d'eiKpi^te for the adduction of evidence. Ibid. art. 172. CXIII. — The enquSte being closed, either party may inscribe the cause for final hearing. Ibid. CXIV. — The cause being inscribod on the role U'ewpiete, and subse- quently on the r6le de droit, the proceedings thereon shall be regulated by the orders and rules of practice of this court. Ibid. (Signed) Ed. Bowkn, Chief Justice S. C. Chas. D. Day. J. S. C. G. Van Felson, J. S. C. W. C. Meredith, J. S. C. Quebec, I7th Dec. 1850. Chas. Mondelet. J. S. C. E. Bacquet, J. S. C. J. Duval, J. S. C. ADDITIONAL RULES. e granted to him rty, be set aside, •oceed as if leave iefendanten/aii* "and inadmissible, J if it reject the ftdmissible, and o Hwithinagivende- )f the proc^ ««^^*' SUPERIOR COURT. It is ordered that in all suits in which the sum or the value of the thing demanded amounts to or exceeds $100, but does not exceed $200, to be instituted in the Superior Court under the Statute of the Province of Quebec, passed in the 34th year of Her Majesty's reign , intituled " An Act to amend certain Articles of the Code of Civil Procedure re- specting the p'*actice of the Superior and Circuit Courts," the fees to be allowed to thu counsel, advocates and attorneys engaged in the said suits, and also to the bailiffs employed therein, shall be the same as 662 ADDITIONAL RULES. \ ' / P' according to the Tariffs now in force, are allowed in action* of the same claaa in the Circuit Court, which said Tariffs in the particulars aforesaid, are hereby adapted and made Tarifis of the Superior Court applicable to the cases aforesaid. — Decembtr, 1870. It is ordered that the Rule of Practice of the 22nd February, 1870, fixing the 4th, 5th, 6th, 7th and 8th days of each month during the enquete as special days for proof and final hearing on the merits at the same time, be rescinded and annulled. — 17^ April, 1872. The prothonotary shall not place any case on the rAle for hearing on the merits without having previously ascertained that the record is complete, and for this purpose the inscription should be filed at the prothonotary 's office at least one clear day before the day fixed for the hearing.— 30, r XVIT. — That every such incidental cross>demand shall be consid- ered a distinct action, and shall not delay the proceedings on the prin- cipal demand. XVni. — That every notice of motion or rule niti shall be served one day in term and two days in vacation before the party can be called upon to show cause. . < XIX. — That of all motions for attachments two days' notice shall be given, accompanied by a copy of all affidavits to be filed in support of such motion. OF ENQUETBS. 665 the hour* of iBt of March L. M. and five ; leave of the orney he may, f. In default costs, «»«/ 4 »c tiff shall be al- J i.\ the came. d with the de- 99 et aeq., 1069, sousieing privi icument shall be Ibid. its with his plea, 1 unless allowed y take from the \ng privi, and the the same on the jontain an assign- with the defend- incidental orosB- shall be consid- ings on the prin- shall be served the party can be ays' notice shall be [filed in support of XX. — That all papers filed shall be regularly douketted by specify- ing the title and number of the cause, describing the paper filed, and stating by whom filed. ' ' " XXI. — That all applications for seo'irity for costs be made on or be- fore the second day after the day of return. Ibid, arts. 107, 1059. XXII. — That in computations of time Sundays and binding holi- days or holidays, fttes d'obligatioH, shall not be reckoned, unless other- wise provided by law. Ibid, art, 24. XXIII . — That when any delay shall expire on a non-juridical day, such delay shall be held to extend to the close of the next juridical day. Ibid. XXIY.- That the clerk shall not receive or file any pleading or paper- writing unless the fee allowed thereon be paid. XXV. — That no exception declinatoire, peremptoire d la forme^ or dilatoire be received unless the party offering such exception shall therewith deposit in the hands of the clerk the sum of one pound six shillings and eightpence for every such exception, to answer the costs of the adverse party, if such exception be dismisoed or withdrawn, in the proportion of six shillings and eightpence to the clerk and twenty shillings to the attorney. Ibid. 112, 1059. XXVI . — That every affidavit or certificate of service shall particu- larly describe the manner, place and time of service, in letters, and also the distance from the place of sr^rvice to the court house at which the party is required to appear. Ibid. art. 78, 1059. XXVII.— That it shall be the duty of the clerk to call the causes, each day, in the following order : 1. Causes returned. 2. Non-appealable causes fixed for final hearing, exparte. 3. Non-appealable causes in which one of the parties is to be heard on the serment dScisoire. ■ 4. Non-appealable causes contested. 5. Appealable causes, exparte. 6. Appealable causes contested. OP ENQUETES. XXVIII. — That the clerk shall keep a -/oil of all causes inscribed for the adduction of evidence. XXIX. — That of every inscription ou the role d'enquite one day's notice shall be given in term and four days in vacation. 666 OF 0PP08ITI0N&. t't iii:!\i W" S XXX. —That if the pluntiff or defendant u not ready to examine hia witneues on the day fixed for the enqutU, hia enqu«t« ahall, on motion, bo dejlared cloaed. XXXI. — That every application for an order or a oommiuion, in the nature of a eommittion rogatoire, for the examination of witneaaee be applied for within two days after iHue joined. XXXII. — That all interrogatoriea annexed to auoh oomminion, whether for the examination of witneues or of a p'rty on fait» et articles, shall be allowed by a judge before the party can be called upon to answer. XXXIIl. — That either party may, at any period, cause the return to a commission by him sued out to be opened, unless good cause to th«« contrary be shown. But the return to a commission sued out by a defendant shaU not be opened until plaintiff's enqudte has been closed. It £ 1 ROLE D£ DROIT. V feM Rf Wv '(\ XXXIV. — That the clerk shall keep a roll of all causes inscribed f " preliminary hearing en droit, and another roll of all causes inscribed fu^ final hearing on the merits. XXXV. — That of all such inscriptions one day's notice shall be given in term, and two days in vacation. XXXYI. — That either party may inscribe the cause for final hearing on the merits or for preliminary hearing en droit. * OF OPPOSITIONS. - f' . XXXVII. — All oppositions shall contain the reasons or moyena d'opposition, and none shall be admitted after the filing of any opposi- tion. XXXVIII. — Each opposition dfin d'annvllet otde dutraire shall be supported by an affidavit in the following form : Lower Canada, Circuit. A. B., r-laintiff; 0. D., Defendant A. B., of , being duly sworn, doth depose and say, that the facts articulated and set forth in the annexed opposition AfinW and each of them is, and are true, and that the said opposition is not Circuit Cotrt. m INSCRIPTION EN FAUX. «G7 to examine hia ftll, on motion, miuioD, in the dI witneMM be )h oonunuwion, rty on faiU et 1 be called upon made with any intent unjuatly to retard or delay the aale of the whole ur any part of the moveable or immoveable property, eeiied by virtue of the writ of execution in thia oauae iMued, but that the tame ia made in good faith, for the aole purpoae of obtaining juatioe. Sworn before me, at thia day of 18 . XXXIX. — No bailiff shall receive any of the oppoeitiona above men- tioned, unleas supported by auch affidavit ; but it shall be the duty of the bailiff to proceed as if no such opposition had been presented to him. ause the return s good cause to on sued out by a has been closed. uses inscribed f " .uses inscribed foi tice shall be given le for final hearing ■easons or nwytns ing of any opposi- dijtroire shall be and say, that the lition A fin d' id opposition is not INSCRIPTION £N FAUX. XL.— A party desirous of inscribing en/aux against an exhibit filed, shall, by motion addressed to the court, pray leave so to do. XLI. — The motion for leave to inscribe en faux shall be signed by the party in whose name it is made, or by an attorney specially author- ized so to do, and an authentic copy of the power of attorney given shall be filed with the said motion. XLII. — The party filing such exhibit shall, within the delay to be prescribed by the court, on motion of the plaintiff e» /aux, declare in writing, if he intends to avail himself of such exhibit in support of the allegations set forth in his pleading. XLIII. — Should the party filing such exhibit omit to make such de- claration in writing, signed by himself or by his attorney od Utea, within the time prescribed, the said exhibit shall by order of the court, on the motion of the plaintiff enfavx, be taken off the files of the court, and thereafter be held and considered to all intents and purposes, to have been withdrawn by the party who filed the same. XLIV. — If the defendant en /aitx declare that he does not intend to avail himself of such exhibit in support of his allegations, the said ex- hibit shall be taken off the files of the court and shall be held and con- sidered to all intents and purposes, to have been Mrithdrawn by the party who filed the same. XLV. — If the defendant en /aux declare his intention to avail him- self of such exhibit for the purposes aforesaid, he shall file the minute thereof, if there be a minute, in '-.he office of the clerk, within such time as shall be prescribed by the court, and in default of so do- ing, the said exhibit shall, on motion of the plaintiff en /aux, be taken off the files of the court, and held and considered, to all intents and purposes to have been withdrawn by the party who filed the same. 66H INHtRIPTION FN FAUX. Iv ■J '^r -r wyn.. XLVI. — Twndaja after the \Amini\ff *n fnur ■hall have been notified of the filing of the said minutu at thu ottioe of laid olerk, the Raid plaintifl shall file, under hia aignature, or that of hia attorney nd liten, '.ia inaoription ert /oiur containing all thu moyetude/aiu-, a copy where- of ahall be aerved on the attonioy of the adverae party. If the aaid plaintl? omit ao to do, the leave granted to him to inaoribe en faux ahall, on moti«>n of the adverae party, be set aaide, and the plaintiff, on the original demand, allowed to proceed aa if leave to inacribe en faux had not been allowed. XLVI I. — When the nutyeM , and the judgment and pro> ceedings in review. — October, 1873. Jt ^.'' -■,.'■ I ■■ 672 couKT OF queen's bench (civil appeal). m / RULES OF PRACTICE , OF THE ^ ' . COURT OF QUEEN'S BENCH, i^agHjiBaajlMHR' IN THE WF' r EXERCISE OF ITS CIVIL APPELLATE JURISDICTION. ' PBOMUI^ATED JULY TERM, 1860. I. — That this court, in the exercise of its appellate civil Ijurisdiction, be opened at the hour of ten in the forenoon of each of the juridical days on which the same is by law appointed to be held, unless an order or ad jonmment to the contrary be made. 11. — That the Queen's counsel and advocates, practising in this court, and the clerk of the court, when in the discharge of their respec- tive duties in court, be habited in black, and in robes and bands, as heretofore hath been used ; and that no Queen's counsel, or advocate, not so habited, and in such robes and bands, be heard in any cause. III. That all records, registers, books and papers, belonging to and filed in the court, be kept in the places assigned for the safe cur^tody thereof, in the court houses, respectively, at the places where this court is by law appointed to be held, and be not thence removed, or taken thereftom, on any pretence whatever, without the order of this court, or of one of the judges thereof, in writing. lY. — That the office of the clerk of this court, in what relates to its jurisdiction as a court of appeal and error, be kept in the apartments assigned for it in the court-houses respectively, at the places where this court is by law appointed to be held ; and that the said office, in the said court-houses respectively, during the present and every fuLore term, be open, and regular and proper attendance afforded therein, from the hour of nine in the forenoon until the hour of five in the af- ternoon of every day (Sundays and holidays excepted), and during the COURT OF queen's BENCH (CIVIL APPEALS). 673 CH, ISDICTION. Lvil Ijurisdiction, of the iuridical , unless an order jtising in this e of their recpec- jB and bands, as tsel, or advocate, rd in any cause. 1 belonging to and the safe curtody )laceB -where this lence removed, or the order of this nrhat relates to its „ the apartments J places where this [said office, in the and every fn-^e afforded therein, J of five in the af- fd), and during the vacation after each term from the hour of ten in the forenoon till the hour ot three in the afternoon of every day (Sundays and holidays excepted). v. — That there shall be prepared and kept by the said clerk of this court, in what respects its civil appellate jurisdiction in his office, a fit and proper book, in which shall be made the entries hereinafter men- tioned, that is to say : Every attorney of this court, before the first day of September next, shall make in the said book an entry, in writ- ing and to be signed by him, of his name and of his real and elected domicile, in the cities of Quebec and Montreal respectively, that is to say, of his real domicile in one or other of the said cities, if resident in either of them, and of Jus elected domicile in that in which he is not resident, or of his elected domicile in each of the said cities, if not resident in either of them, at which real or elected domicile all plead- ings, summonses, rules, orders and notices, of 'vhich the service on him may be required, may lawfully be made. And every attorney here- after to be admitted shall, on his admission and before he commences piuctising in this court, make in the said book a like entry. And as often as .tiuy attorney of this court shall change his real or elected domicile or domiciles, of which an entry shall have been made as afore- said, he shall make a like entry of such change ; and all pleadings, summonses, rules, orders and notices, which do not require personal service, shall be deemed and taken to be sufficiently served on such at- torney if a copy thereof be left at the place last entered by such at- torney as aforesaid, as his real or elected domicile, with any person of competent age and discretion resident at or belonging to such place. And if any such attorney shall neglect to make such entry as aforesaid, then the fixing up of any notice, pleading, summons, rule or order for such attorney in the said office of the said clerk of this court shall be deemed and taken to be service thereof, and as effectual as if the same had been served at such real or elected domicile as aforesaid. YI. — That a schedule of all suits depending in this court, specifying in each suit the names of the parties, the date of the writ of appeal or of the writ of error, the time when returned, or, if not returned, the fact of its not being returned, the names of the attorneys by whom appearances for the parties have been filed, and the date of such ap- pearance, and, if not filed, the fact that they have not been filed, the days on which the reasons of appeal and the answer thereto and the cases of the parties (if filed) have been filed, and, if not filed, the fact that they have not been filed, the day on which each suit, if inscribed on the roll for hearing, hath been so inscribed, and the day which by such inscription is fixed for the hearing of such suit shall be made 48 tftH,' 674 COURT or queen's bench (civil appeals). and kept by the said clerk of this court on the first day of the next and of every succeeding term ; and such schedule shall be deemed and tciken in all parts to bu an official certificate by the said clerk of this court of the state of such suits, severally and respectively, on the first day of the term, when such schedule shall be laid before the court as aforesaid. VII. — That no writ of appeal or writ of error shall issue from this court unless a prcecipe for the same, signed by the attorney suing out such writ, be first delivered to the proper officer, by whom the said writ is to be issued ; and every such writ shall be written on parch- ment and shall bear the signature of the attorney, upon whose pracipe the same shall be issued, and shall be made returnable at the place at which this court shall be held next after the issuing of such writ, within fifteen days from the date thereof ; except such writs of appeal and w.its of error as may be directed to the judge of the Su- perior Court for the district of Gasp^, which shall be made returnable within two calendar months from the date thereof. VIII. — That personal service of any writ of appeal or writ of error upon the attorney who has appeared in the court below, for the re- spondent or the defendant in error, as heretofore has been practised shall, in default of the legal service, be held and taken to be legal service. IX. — That the writs, pleadings, motions and exhibits, and other paper-vrritings, comprising any record to be hereafter transmitted to this court, shall, by the prothonotary of the court from which such record proceeds, at the head of each, be separately numbered respec- tively from number one to the entire number thereof, and that an in- dex of reference to the whole, by number, title and description, under the signature of such prothonotary, shall be by him annexed to such record. Y. — That the postage paid by the said clerk of this court on the re- turn to writs of appeal and writs of error, and the records accompany- ing them shall, on demand, be forthwith reimbursed to him by the at- torney of the appellant or plaintiff in error, and, if not so reimbursed, the payment thereof by such attorney may be immediately enforced, by resort to the summary jurisdiction of this court. XI. — That on every writ of appeal or writ of error hereafter to be issued it shall be incumbent on the appellant and respondent, or the plaintiff and defendant, in error respectively to anter his appearance in the office of the said clerk of this court on or before the eighth day next after the day on which such writ of appeal or writ of error has COURT OF queen's BENCH (CIVlL APPEALS). G75 { the next be deemed aid clerV of yely, on the ,re the court lue from this ley suing out hom the said ten on parch- whose pracvpe t the place at of such writ, ,t Buch writs idge of the Su- ^ade returnable or writ of error low, for the re- 9 been practUed jcen to be legal ibits, and other ,r transmitted to from which such ^ximberedrespec- i, and that an in- eacription, under ^ annexed to such |8 couri; on the re- Lords accompany 1 to him by the at- Lt so reimbursed, Ldiately enforced, [or hereafter to be Irespondent, or the Iter his appearance lore the eighth day r ^ritof error has been made returnable, and, in default thereof, shall ha precluded from entering an appearance in such suit, in which subsequent proceedings may be had ex parte against the party so in default as aforesaid. XII. — That the reasons of appeal or the assignment of errors, as the case may require, in every suit shall be filed within eight dr.;^ j next after the return of the writ of appeal or writ of error, as the case may be, and the transmission of the record and proceedings from the court below, and shall contain specifically thj several grounds and reasons of appeal, and the several errors for which the reversal of the judgment appealed from is sought ; and if the reasons of appeal or the assign- ment of errors be not filed within the time aforesaid, it shall be compe> teut to the attorney of the respondent or defendant in error, by notice in writing under his signature, directed to the attorney of the appel- lant or plaintifT in error in such suit, to demand the reasons of appeal or the assignment of errors, as the case may require, and, if the rea- sons of appeal or the assignment of errors be not filed within six days from service of such notice, every such suit in appeal or in error shall be dismissed with costs. XIII. — That the answers to reasons of appeal in every suit in appeal, and the joinder in error in every suit in error, shall be filed within eight days after the filing of the reasons of appeal or the assignment of errors ; and if not so filed it shall be competent to the attorney of the appellant or of the plaintiff in error, as the case may be, by notice iu writing under his signature, directed to the attorney of the respondent or defendant in error, in such suit, to demand the answers to the rea- sons of appeal or the joinder in error ; and if such answer or joinder in error, shall not, within four days from the service of such notice, be filed, the respondent or defendant in error, as the case may be, shall be wholly precluded from filing an answer to the reasons of "vppeal, or a joinder in error ; and the appellant or plaintiff in error may, after no- tice given to the adverse party of his intention so to do, proceed to a hearing of his suit in appeal or in error ex parte ; and to judgment therein, without the intervention of th^ respondent or defendant in error. XIV. — That the cases of the appellant and respondent or plaintiff and defendant in error, in every suit in appeal or error, to the number of ten on each side, shall be delivered by the appellant and respondent, the plaintiff and defendant in error, respectively to iuo aaid clerk of this court, to be by him filed, within ten days after the filing of the answers to the reasons of appeal or the rejoinder in error. And if the case of the appellant or the plaintiff in error be not so delivered and filed the suit in appeal or in error, of such appellant or plaintiff in error, r ^ ■% 676 COURT OF queen's bench (civil appeals). ■hall be deemed to be deserted, and on motion of the respondent or defendant in error, shall be dismissed with costs. And if the cases of the respondent or defendant in error be not delivered and filed as afore- said, such respondent or defendant in error shall be deemed to have deserted such suit in appeal or error, and the same may be heard ex parte, on the part of the appellant or plaintiff in error, and judf^ment rendered therein, without the intervention of the respondent or defend- ant in error. XV. — That when and so soon as the answers to the reasons of appeal, or the joinder in error, as the case may require, shall be tiled, it shall be competent to either party, by whom cases have been filed, to set down such suit for hearing, by inscribing the same on a docket roll to be kept by the said clerk of this court for that purpose, in vacation or in term, of which inscription two days' notice shall be given to the ad- verse party. « XVI. — That after the inscription of a cause for final hearing, it shall be the duty of the said clerk of this court, without delay, to deliver to the judges, respectively, printed cases, making part of the cases, which have been filed as aforesaid in such case, and furrish the attorney of each party, who shall have filed his case, on his demand, with a printed copy of the case of the adverse party, and he' shall retain and file of record one of the printed cases of the said parties respectively. XVII. — That it shall be lUe duty of the said clerk of this court to prepare and keep a docket roll of the causes which have been inscribed for hearing, in the order in which they have been inscribed ; from which docket roll the causes to be heard shall be called on each day, in the order in which they stand on the said roll. XVIII. — That in cases where a suit in appeal or in error, having been inscribed forbearing, and being called from the roll, the appellant and respondent, or the plaintiff and defendant in error, shall not ap- pear, or shall not be ready to proceed, every such suit shall be struck from the roll ; and in cases where a suit in appeal or in error, having been inscribed for hearing, and being called from the roll, the appel- lant or plaintiff in error, shall not appear, and the respondent or de- fendant in error shall appear, every such suit shall be dismissed with costs to the respondent or defendant in error ; and in cases where a suit in appeal, or in error, having been inscribed for hearing, and being called from the docket roll, the respondent or defendant in error shall not appear, and the appellant or plauitiff in error shall appear, and be ready to proceed, every such suit shall be heard on the part of the appellant or plaintiff' in error, so appearing, ex parte, and such COURT OF queen's BENCH (CIVlL \PPEAL8). 077 ident or cases of as af ore- > to have beard ex ,r def end- j of appeal, ed, it Bhall led, to set jket roll to vacation or a to the ad- i .' ft ring, it sha^ to deliver to cases, which B attorney of rith a printed in and file of vely. this court to ,een inscribed [scribed ; from on each day, I error, having ll, the appellant V, shall not ap- shall be struck L error, having froU, theappel- Lpondent or de- dismissed with in cases where a lor hearing, and Ijf endant in error ror shall appear, fd on the part of parte, and such order and judgment thereupon made and rendered as to law and justice shall appertain, without costs in such case to the respondent or de- fend-uit in error. XIX. — That in all suits which shall hereafter be pending in this court, no more than two counsel shall be heard in opening, or in ans- wer, and one only in reply. XX. — That when this court shall be moved in any suit, upon any special matter, not appearing upon the record or proceedings filed in such suit, such special matter shall be previously authenticated by affi- davit; and a copy of the affidavit, and two days' notice of such motion served on the adverse party. And no such motion shall be received, until such affidavit, and an affidavit of the service of notice as afore- said, shall be read and filed. XXI. — That every motion for an appeal from an interlocutory judg- ment, shall be accompanied with copies of such interlocutory judgment and of the pleading filed in the suit, together with copies of such ex- hibits and proceedings therein as may be material and necessary in support of any such motion. XXII. — That a copy of every judgment of this court, by reason whereof the record in any suit in this court shall be remitted to the court below shall be annexed to the record, and transmitted with the same under the certificate of the said clerk of this court. XXIII. — That in the computation of time, the common rule dies a quo non computahir termiiio shall be observed ; and in ail cases in which a prescribed delay or period, within which something is reqxiired to be done, shall expire on a Sunday or holiday, the same shall ipto jure stand and be enlarged to the then next juridical day. XXrV. — That all rules and orders heretofore made for regulating the practice in appeal and in error, and now in force in this court, be and the same are hereby rescinded and annulled. (Signed) J. Stuart, C. J., J. R. ROLLAND, J. B. R., Phi. Panet, J. B. R., T. C. AVLWIN, J. Quebec, 12th July, 1850. iif'^'' w 678 COURT OF queen's BENCH (CIVIL APPEALS). ADDITIONAL RULES. That for the future, in appeals from the Circuit Court, the parties shall each produce a printed factum, in the same manner, within the /"' same delay, and subject to the same penalties as are prescribed and established by the rule concerning appeals from the Superior Court. Experience having shown that the paper covers heretofore in use are insufficient to protect the records of the court from injury, it is hereby ordered, pursuant to the statute in that behalf, that, for the future, the clerk do provide proper wrappers or external covers in parchment, for each record ; and to defray the expense thereof, the sum of one shilling and three pence shall be paid to him over and above the other sums now payable upon the suing out of any writ of appeal. It is further ordered .\at, instead of the present number, for the future there be filed in the office of the clerk twenty-five printed copies of cases on each side, in appeal ; and that the said cases be printed, as heretofore, in paper in folio form. (Llih July, 1857.) Doubts having arisen whether the additional niunber of cases in ap- peal made requisite by the rule of the 11th July last, should be liable to the payment of any fee or charge, it is hereby ordered that no fee or charge whatever shall be demanded or paid in respect of such ad- ditional cases. (I2th October, 1857.) For the future, in appeals from the Circuit Court, the parties shall each produce a printed factum in the same manner, within the same delay, and subject to the same penalties as are prescribed and estab- lished by the rule concerning appeals from the Superior Ccurt ; and the party appellant will not, for the future, be obliged to furnish copies of his petition in appeal. For the future, in every appeal, as well from the Superior as from the Circuit Court, the evidence taken in the suit is to be printed and to form part of the factum, that is to say, that the appellant shall have printed, with his factum, the evidence adduced by him in the court of original jurisdiction, and the respondent that adduced by him. {6th December, 1859.) The appellant in each cause shall insert in his factum a true copy of the judgment appealed from, and both parties, appellant and respon- dent, shall endorse on the said factum the name of the court from whose judgment the appeal has been instituted. (9th December, 1861. ) Hereafter, communication of the record in each cause shall be given to the attorney of either party, on his receipt filed with the clerk of the t;ouRT OF queen's bench (civil appeals). 679 the pwrtie* within the icribed and Lor Court. >fore in vm injury, it i» that, for the lal covers in thereof, the ?er and above rit of appeal, nber, for the printed copie* as be printed, ) of cases in ap- liould be Uable ed that no fee lotof suchad- le parties shall ithin the same [ibed and estab- ior Court; arid lo furnish copiea Lperior as from . be printed and eUant shaU have in the court of by him. (6*'' |m a true copy of at and respon- the court from \ December, 1861.) LeshaU be given fh the clerk of the court, and that the order of this court or of one of the judges thereof, required by the third Rule of Practice, be dispensed with. {6th June, 1862.) At the expiration of each term, the clerk of this court shall give to each judge a list of the cases in which an appeal has been allowed to Her Majesty in Her Privy Council. Immediately on the transcript of the record being transmitted to the first clerk of the Privy Council, the clerk of this court shall inform each judge thereof, (ith Juiie, 1864.) Appeals from judgments in actions of ejectment brought under the Lessors and Lessees' Act shall, as to hearing, have precedence in this court before other cases. {9th March, 1865.) No barrister, attorney, prothonotary, sheriff, crier, bailiff, sheriff's officer or officer of this court shall be bail or surety in any action or proceeding cof^izable by this court or by any judge thereof. {9th June, 1865.) The clerk of this ccart, immediately upon the receipt of the papers transmitted in a case reserved for the opinion of the court, shall set down such case for hearing on the first juridical day of the then next ensuing term. The plaintiff in error in all criminal cases, shall file an assignment of errors on the first juridical day after the day of the return of the said writ. ' . The joinder in error shall be filed on the first juridical day following the filing of the assignment of errors. The clerk of this court, on receiving the joinder in error, shall forth- with set down the cause to be heard on the errors assigned, {lat June, 1867.) Friday, the Sixteenth day of March, otie tho'n^and eight hv/ndred and seventy-seven. Present : T, The honourable Mr. Chief Justice Dorion, Mr. Justice Monk, Mr. Justice Ramsay, Mr. Justice Sanborn, Mr. Justice Tessier. , REGUL^ GENERALES. On the first day of each term, the Clerk of Appeals shall lay before the Court a list of all oases pending before the Court, in which no pro> l( (( « (( (( (< (( (( i,'j f H'.ii F |( COURT OF queen's BENCH (CIVIL APPEALH). oeedings have been had for more than a year, indicating the name of the parties and of their respective counsel, the nature and date of last proceeding hud in such case ; and such cases shall be considered to have been deserted, and the court may without any demand to that ef&ct onler the records to be transmitted to the court below. This rule to be enforced in cases now pending as well as to future cases from and after the tint day of March, one thousand eight hun- dr«d and seventy-eight. In all cases of appeal and error, the parties may in lieu of factums as now required, file a special case setting forth the judgment or judg- ments appealed from and so much of the pleadings, evidence, docu- ments and ortlers in the cause as they may deem necessary to enable the Court to decide the questions at issue, together with such proposi- tions of law or fact as may be relied upon by the parties respectively, and Ruoh special cases shall be considered as common to both parties and will entitle the counsel engaged in the case to the same fees as if separate factums had been filed. The cases or factums shall be printed on paper of eleven inches by eight inches and a half, the type to bo small pica leaded face, and every tenth line numbered in the margin. (Certified) L. W. MARCH AND, Clerk of Appeals. iM.^ ). he name of 1 date of last «)n«dered to land to that low. I aa to future jd eight hun- 1 of f actums as ;ment or judg- vidonoe, docu- Bsary to enable h Buch propoBi- es rsBpectively, to both partieB same fees as if HER majesty's PRIVY COUNCIL. 681 RULES OF PRACTICE ov HER MAJESTY'S PRIVY COUNCIL. JUDICIAL COMMITTEE, Appeuute Jurimoiction. ileven inches by eaded face, and HAND, erfc of Appeals. At the Court at Buckinohah Paiace, The 13th day of June, 1853. Present : The Queen's Most Excellent Majesty. His Royal Hiohness Prince Albert. Lord President, Lord Steward, Duke of Newcastle, Duke of Wellington, Lord Chamberlain, Earl of Aberdeen, Earl of Clarendon, Viscount Palmeraton, Mr. Herbert, Sir James Graham, Bart. Whereas, there was this day read at the board a report from the Right Honourable the Lords of the Judicial Committee of the Privy Council, dated the 30th May last past, humbly setting forth that the Lords of the Judicial Committee have taken into consideration the practice of the committee with a view to greater economy, dispatch and efficiencyin theappellate jurisdiction'of Her Majesty in Council, and that their lordships have agreed humbly to report to Her Majesty that it is expedient that certain changes should be made in the existing practice in appeals and recommending that certain rules and regulations therein set forth should henceforth be observed, obeyed and carried into exe- cution, provided Her Majesty is pleased to approve the same : Her Majesty having taken the said report into consideration, was pleased 082 HER majesty's privy COUNCIL. by and with tho advice of Her Privy Council, to approve thereof, and of the rules and regulatiuna aet forth therein, in the wurda following, vutelieet : I. — That any former uaago or practice of Her Majesty '■ Privy Coun- cil notwithstanding, an appellant who shall succeed in obtaining a reversal or material alteration of any judgment, decree or order ap- pealed from shall be entitled to recover tho coats of the appeal from the respondent, except in cases in which the Lords of the Judicial Committee may think tit otherwise to direct. II. — That the registrar, or other proper officer having the custody of records in any courts of special jurisdiction, from which an appeal is brought to Her Majesty in Cotinoil, be directed to send by post, with all possible dispatch, one certified copy of the transcript record in each cause to the registrar of Her Majesty's Privy Council, White- hall, and that all such transcripts be registered in the Privy Council Office, with the date of their arrival, the names of the parties, and the date of the sentence appealed from ; and that such transcript be ac- companied by correct and complete index of all the papers, documents and exhibits in the cause ; and that the registrar of the court appealed from, or other proper officer of such court, be directed to omit from such transcript all merely formal documents, provided such omission be stated and certified in the said index of papers ; and that a special care be taken not to allow any document to be sut forth more than once in such transcript ; and that no certified 0(>[)ies of the record be transmitted to agents in England, by or on behalf of the parties in the suit ; and that the fees and expenses incurred and paid for tho preparation of such transcript be stated and certified upon it by the registrar or other officer preparing the same. III. — That when the record of proceedings, or evidence in the cause appealed has been printed or partly printed abroad, the registrar, or other proper officer of the court from which the appeal is brought, shall be bound to send home the same in a printed form, either wholly or so far as the same may have been printed ; and that he do certify the same to be correct, on two copies, by signing his name on every printed sheet and by affixing the seal, if any, of the court appealed from to these copies with the sanction of the court ; and that in all cases in which tho parties in appeals shall think fit to have the proceedings printed abroad, they shall be at liberty to do so, provided they cause fifty copies of the same to be printed in folio and transmitted at their expense, to the registrar of the Privy Council ; two of which printed copies shall be certified, as above, by the officers of the court appealed <\ HER MAJJaiTY .4 PRIVY C:«>UNCIL. (iH.S 1 thereof, »ni\ rdi {oUuwing, '■ Privy Coun- n obtaining a le or order ap- le appeal from I the Judicial { the custody of ihich an appeal o send by post, ansoript record Council, White- ) Privy Council parties, and the transcript be ac- ,pers, documents le court appealed ,o omit from such imission be stated cial care be taken lan once in such be transmitted in the suit ; and he preparation of registrar or other ence in the cause , the registrar, or ppeal is brought, ,nn, either wholly that he do certify iis name on every ,urt appealed from that in all cases in ve the proceedings rovided they cause ■ansmitted at their ro of which printed the court appealed fn>m ; and in this case no further expense for copying <>r printing the n«ord will be incurred or allowed in England. IV,— That on the arrival of a written* transcript of apiwal at the Privy Council Oflioe, Whitehall, the appellant, or the agent of the ap- lM>llant prosecuting the same, shall bo at lilnirty to call on the regis- trar of the Privy Council to cause it, or such jMirt thereof as the res- pondent, or his agent may require, to be printed by Hvr Majnsty's printer, or by any other printer on the same terms — the appellant or his agent engaging to pay the cos i of preparing a co^.y for the printer, at a rate not exceeding one shillnig per briuf s^oet — and likewise the cost of printing such record or appendix ; and that one hundred copies of the same be struck off, whereof thiny copies are to bo delivered to the agents on each side, and forty kc.)t for th . aso of th Tudicioi Com- mitvee ; and that no other fee for solicitors' copies o> \ \e transcript or for drawing the joint appendix bo henceforth all« i' o '., the solicitors on both sides being allowed to have access to the original papcrP' it the council office, and to extract or cause to be jx ,: tcted and copiau, such parts thereof as are necessary for the prepa atiot) of the petition of ap- peal, at the stationer's charge, not exceeeding one shilling per brief sheet. v. — That a certain time be fixed, within which it shall be the duty of the appellant, or his agent, to make such application for the printing uf the transcript, and that such time bo within the space of six calen- dar months from the arrival of the transcript and the registration there- of, in all matters brought by appeal from Her Majesty's colonies and plantations east of the Capo of Good Hope, and from the territories of the East India Company, and within the space of three months in all matters brought by appeal from any other part of her Majesty's domi- nions abroad ; and that in du i<'^t of the appellant or his agent taking effectual steps for the proseci.t:F ea not exceed $400. Curatelle. not otherwise apeci- ACTIONS NOT CONTE.STED. TO PtAIHTIFF'8 ATTORNIV. lataasi. SndCUss. 1. If the action be settled before return 918 00 $14 00 2. If the action be settled, or if the defendant confess judgment on the day of the return, or on the next following juridical day 20 00 16 00 3. If the action be settled or if the defendant confess judgment, after the delay mentioned in the next preceding number, but before plea filed, or in- scription for proof, or inscription for final hear- ing on the merits where no enquSte is necessary. 22 00 18 00 4. If the action be settled after the inscription on the roll for proof, but before the closing of the en- qu6te, or if the action be settled after the in- scription for final hearing on the merits where no enquete is necessary, or if judgment be rendered on such last mentioned inscription 25 00 20 00 5. If the action be settled after enqufite closed, or if judgment be rendered in such action after en- quete 30 00 24 00 6. In any of the above cases in which the defendant may have appeared by attorney, to defendant's attorney on actions returned, or on ctmgi difaut. 6 00 6 00 ACTIONS CONTESTED. nitST CLASS. SKCOND CLA8S. Pltfl. Defdt. Pltff. Defdt. 7. If the action be settled after the filing of any plea other than a plea to the merits and without en((udte on such plea, or if the actioli be dismissed on such plea and without enquete $30 00 $25 00 $25 00 $20 00 8. If the action be settled after the filing of a plea to the merits but before the inacription on the roll for proof where an en- ({u6te ia neceaaary or before the inscriptioii for final hearing where no enqufite is necessary 40 00 30 00 30 00 25 00 9. If the action be settled after the inscription on the roll for proof but before the inacription for finalhearing 60 00 40 00 40 00 36 00 -i^m 688 ADVOCATES FEES IN THE SUPERIOR COURT. XJtT CLA8B. WItfl. DeMt. ■MV?^' 10. If the action be settled after the inscription for final hearing, or if judgment be rendered on such hearing ^)0 00 ^ 00 BKCOHD CLASS. Pltff. Detdt. $50 00 840 00 11. The costs in actions in revendication for moveables to be taxed as against the plaintiff according to the value of the property claimed, and as against the defendant according to the value of the property for which judgment is rendered. 12. Hjrpothecary actions and actions for seigniorial dues where the title of the seignior is not contested, are to be considered in respect of costs as merely personal actions. 13. The costs in actions to account to be taxed as against the plain- tiff according to the amount demanded, and as against the defendant, according to the amount for which he is accountable. 14. In any action of ejectment iinder the Lessor and Lessee Act, not including actions in which either rent is or damages are sued for (which actions are provided for by statute), the costs to be as in a personal action (in the Superior Court or Circuit Court, as the case may be), for a sum of money equal to the value of the premises leased for the year current at the time of the institution of the action, or if the lease shall have expired, then for the last year to which the lease extended. 15. In action of damages for personal wrongs (except in actions in which the court or jury shall find the damages to be under forty shil- lings sterling), the costs to be taxed as of the class to be determined by the final judgment. 16. In actions for sums of money under f 200 instituted by writ of capias ad reapotidendmn in the Superior Court, the costs to be as in actions over $100 in the Circuit Court. 17. In any case where the defendants sever in their dc Fence, the plaintiff's attorney shall receive, on each additional issue, one half of the sum which he would have received had there been but one issue ; the whole amount to be payable in equal proportions by the party or parties to each issue. ADDITIONAL FBE8. , 18. For the second and every additional copy of the plaintiff's declaration $1 GO advocates' fees in the superior court. 689 00 »40 00 8 to be taxed lerty claiined, ©property for lues where the ,d in respect of ainst the plain- ; the defendant, ind Lessee Act, ges are sued for ,ts to be as in a ourt, as the case premises leased the action, or if which the lease eept in actions in under forty shil- to be determined Lituted by writ of costs to be as m J their defence, the I issue, one half of leen but one issue; Ls by the party or le plaintiffs 19. Affidavit to obtain writ of cajnas ad respondendumy attach- ment in revendication, simple attachment before judg- ment, attachment for rent, eeHiorari or other preroga- tive r/rit — when an affidavit is required and the action is commenced by such process — (thin fee not to be al- lowed for any affidavit referring in general terms to the facts set forth in the petition or pleading in support of which such affidavit is made) $3 00 20. If a writ of eapiaa ad respondendvm or any writ of attach- ment against moveables be sued out at any time after the institution of the action (affidavit included) : — To the attorney suing out the same — In actions of first class 12 00 In actions of second class 10 00 21. On any declinatory or dilatory exception, exception to the form or demurrer over-niled ; To the plaintiff's attorney 8 00 To the defendant's attorney 6 00 22. On any other plea overruled after law issue raised upon it : To the successful party 8 00 Tu the opposite party 00 23. On any dilatory exception maintained — To the plaintiff's attorney 10 00 To the defendant's attorney 16 00 24. If the plaintiff be permitted to amend his declaration after the filing of an exception to the form — To the defendant's attorney 7 00 25. If the plaintiff be permitted to amend his declaration after *he filing of a demurrer — To the defendant's attorney 10 00 26. For all proceedings on any petition, motion or rule, not specially provided for, upon which costs are ordered to be paid — To the party to whom costs are awarded 3 00 CSame fee on motion or other proceedings to call in cre- ditors, including affidavits.) 27. For putting in security for costs — To each attorney 3 00 28. For all proceedings respecting the putting in of security in any case not otherwise provided for — To each attorney 5 00 29. Enqu6te fee in any contested cause tried by jury or judge, to counsel (other than attorney of record,) filing appear- ance at, and actually conducting enqufite 10 00 44 690 ADVOCATES FEES IN THE SUPERIOIl COURT. 30. In caees to be tried by junr — To each attorney for llio pvepcnt.tion of factum 88 (Xt To each attorney for B),!itt)r.)..:nt vi f.w)i',t, re juired by art. 353 C. C. P. , includiiiff c«ii>;; fur advorae part^ 3 (X) 31. In every ca** of trial by jury, where a u;ot, < n is made for a new trial, or in wiOBt ol jut^giiieni, • r ■ jr judgment lij^n obstanU veredicto , or for non suit, u-here all or any of those reiAicdies ar>.' sought, one fee only to be allowed foi' the whole of the proceedini^s in each such case up to judgment therein— To each attorney (if action of l^t das*,; 14 (Xt To each attorney (if action of 2iid cUuis) 10 0(» 32. On any hearing on the merits . )ered in a contested ac- tion — To each attorney 10 00 33. On any re-hearing ordered upon any pleading — To each attorney c (K) 34. On any re-hearing ordered upon any rule or other proceed- ing not specially provided for — * To each attorney 3 OO 35. For all proceeduigs on a continuance of suit (reprise d'in- stance,) by petition or motion — To the attorney continuing the suit 10 00 To the attorney of ndverse party 5 00 Costs as in action of second-class, if the continuance of suit be contested or if it be made by action, and also on proceedings to have judgment declared executory or jwfe- ment commun. 36. On every copy of subpojna certified by the attorney lo 37. Suing out a writ of execution 2 0(» 38. Suing out a writ of attachment after judgment if declara- tion be not contested — If action of 1st class 10 0() If action of 2nd class 7 00 39. For every garnishee above three 1 0(> If contested, the costs to be the same as in a contested personal action, the class to be determined by the amount of the judgment against the garnishee, if the costs be pay- able by him, and by the amount claimed by the contesta- tion, if the costs be payable by the party contesting the declaration. 40. For all proceedings for a coercive imprisonment, or for the imprisonment of any party, or for a writ of poasession, or mh IT. advocates' fees in the superior court. 691 88 0 a contested the amount !08t8 be pay- .le contesta- (Dteating the it, or for the loBfleBsion, or for an order for re-sale in consequence of a false bidding, or for the affixing of seals, or for the removal thereof, and for all proceedings on any application oither before or after judgment to liberate any person arrested for debt other- wise than by giving bail, or to obtain possession of pro- perty seized, or contesting attachment before judgment on the ground that the allegations of the affida\.£ :ire untrue, or in cases of rebellion d jtutice : To the attorney of appUcant if no cause be shown 86 GO If cause be shown but without enquete — To the attorney of applicant 10 00 To the attorney shewing cause 6 00 41 . If it be necessary to take evidence on any of the proceed- ings mentioned in the foregoing number, or upon any preliminary plea, or upon any other incidental proceed- ing not specially provided for — To each attorney an additional fee of 8 00 42. When the proof in any contested cause is continued, the party bound to proceed not being ready, fee to adverse party (where costs are ordered to be paid) 2 00 43. For cross examining every witness over five on each side, in any contested case 2 00 44. Preparing statement of facts 6 00 Preparing answer ... 4 00 46. For the special application required by art. 218C. C. P.... 6 00 46. To any proof commissioner for performing all services in any case referred to him, not exceeding the exami- nation of three witnesses 10 00 For each witness over three 2 00 47. For all proceedings for bringing to sale the property of minors 20 00 48. For prosecuting to judgment a report of distribution not contested 10 00 49. For all proceedings upon a contestation of a report of distribution if the contestation be not withdrawn or acquiesced in before the inscription for final hearing on the merits when the amount of the collocation con- tested is above $400 : To the attorney of the party contesting 18 00 To the attorney of the creditor claiming 14 00 60. If the amount of the collocation contested exceed 8200, and do not exceed 8400 • To the attorney of the party contesting 15 00 :^^y J t, I') H 692 advocates' fees in the superior court. I "'1 -ll)-. {:•:■ ''%:. >■«•■. Mi To the Attorney of the oroditor claiming $10 00 51. If the amount of the ooUooation contested exceed 980 and do not exceed 8200. To the attorney of the party contesting 10 00 To the attorney of the creditor claiming 8 00 62. If the amount of the collocation contested do not exceed m-. To the attorney of the party contesting 8 00 To the attorney of the creditor claiming 6 00 63. If the contestation be withdrawn or acquiesed in before the inscription for final hearing on such contestation ' one-half of the above fees according to the class. 54. For all the proceodings after judgment ordering an account to be rendered in any action to account, if the account be acquiesced in without d6bata : To each attorney 10 00 55. If the account be contested, the costs to be the same as in a contested personal action, the class to be determined by the amount for which the accounting party shall be declared accountable beyond the amount admitted to be due by the account filed, if the costs bo payable by the accounting party, and by the amount claimed by the dibata de compte if the costs be payable by the aryant compte. 56. In actions for separation of property or for separation from bed and board, for all proceedings to liquidate the matrimonial rights of the plaintiff : If not contested, to plaintiff's attorney. 10 00 If contested, to each atto vney 20 00 57. For all proceedings to cause a curator to be appointed to a d&aiatement in any hypothecary action 5 00 58. Costs on interventions and incidental cross-demands to be the same as on original demands of the same class. 59. For all proceedings on a licitation of one succession or more after judgwient rendered 40 00 60. On a disavowal, petition in revocation of judgment, or tiers opposiUon, costs to be the same as in original de- mands of the same class. 61. On oppositions for payment not contested, — '^ If the sum do not exceed $80 8 00 If it exceed 880, and do not exceed $200 10 00 If it exceed $200, and do not exceed 8400/ 14 00 If it exceed 8400, 16 00 advocates' fees in the superior court. G!>9 . . ^10 00 10 00 8 00 leed 8 00 6 00 sfore ktion x)unt x>unt 10 00 as in aained lallbe I to be by the py the aryant uration ^te the ... 10 00 20 00 ;ed to a 6 00 la to be as. or more 40 00 ent, or inal de- 8 00 10 00 14 00 16 00 02. If contested, ooati to be the Mine at in penonal actiena for the MRie amount in the Superior Court or Circuit Court, aa the case may be, excepting that the coata upon the contestation of any oppoaition for a sum not exceeding 860 shall be the same aa in contested act^ ns in the Circuit Court, above $00 and under 8100. 63. Oppositions to annul, to withdraw, or to secure charges, or any other opposition, if not contested 915 00 64. If contested, costs to be as in actions of the second class. RATIFIOATIOX OF TITLE. 65. For all proceedings to obtain a sentence of ratification of , title, — To the petitioner's attorney, if the purchase money do not exceed $400 14 00 If purchase money exceed $400 and do not exceed $1 ,000, or if the consideration be not of a pecuniary nature 20 00 If purchase money exceed $1,000 25 00 66. Fees on oppositions to sentence of ratification of title, and on contestations thereof to be the same as on oppositions to executions and contestations thereof. ~ EXPUOFRIATIONS. 67. For all proceedings on behalf uf a proprietor expropriated, to obtain an order for the payment over of the monies : If the value of the property expropriated exceed 8400. . . 16 00 If it does not exceed 8400 12 00 For opposing successfully the homologation of a report of commissioners, where a written appearance for that pur- pose shall have been put in and allowed — "Where the value of the property respecting which the ob- jection arises exceeds 8400 40 00 Where it does not exceed 8400 30 00 WRITS OF OKBTIOBABI. 68. If settled before the filing of such writ, — To petitioner 10 00 If writ refused, to party showing cause.... 6 00 69. If not settled before the filing of such writ, — Topetitioner 16 00 To respondent 10 00 IP' 1 ^fl 694 advocates' fees in the superior court. fOMMIHHIONH ROOATOIRBM AND 0RDBB8 FOR THE EXAMINATION OF ^ WITNBHHCS. 70. Tu the attorney auing ont thu same 86 00 For the drawing of intorrogatories or oroia interrogatories 4 00 For taking instructions, examining the papers, t&c. , &o. , to each 5 00 For examining or cross-examining any witness 2 00 To the attorney prosecuting the execution of the writ or order, an additional fee of 4 00 PROBATEB, HABEAH CORPUS, ETC. 71. For all fees to obtain probate of a will or writ of habeas corpus without enqueto 10 00 If an enqu6te takes place an additional foe of 8 00 72. For all fees to obtain the appointment of tutors to minors, or curators to persons or property, or for removal of interdiction, or for emancipation or any other such pro- ceeding : If not contested 5 00 If contested, — To petitioner's attorney 15 00 To adverse party 12 00 If enquSte necessary on such contestation. . . . , 8 00 73. On petition of curator, &e. , to render an account, includ- ing notices 4 00 EVOCATIONS. 74. If maintained, the costs to be the same, as in actions of second class, which costs shall include all services in both courts. If rejected, to each attorney 5 00 mmoBATiom {inscription en faux). ' ' • 75. To the attorney for directions for drawing a power of at- torney 4 00 Attendance at drawing up of descriptive statement of document impugned 4 00 If settled before articles of improbation are filed, each motion required by the Rules of Practice, and also the declaration to be made by the defendant in improba- tion as to whether he intends to avail himself of the - '^' document impeached, shall be taxed as a motion ac- cording to the foregoing, No. 26 3 00 ADVOCATES* FKES FN TIIK SUPERIOR COURT. CM tATioN or $6 00 ones 4 00 5 00 .!.... 2 00 rrit or 4 00 habeas ... 10 00 ■ 8 00 ninorfl, jval of ich pro- 5 00 16 00 ..... 12 00 8 00 includ- 4 00 actions rvices in 5 00 er of at- 4 00 «nient of 4 00 lied, each . also the improba- )lf of the ' • '' lotion ac- 3 00 If settlen>bati(>n aro tiled, but before the answer, the fees of the attorney of the plaintitf in improbation shall be ns in No. I of the Tablo, and the fees of the attorney of the defendant shall bo as in No. 6 of the Table, and if the settlement take place at any Bubsecitient sta(;e of the prooeedini<, or if judg- ment be rendereil on such improbation, the costs shall be as in the original demand, if settled at a like stage. CASES IN REVIEW. 76. Under 8400— If settled before hearing, tu each attorney 61 <'> 00 Af tfer hearing, to each attorney 30 00 77. In cases of 8400 or over — If settled before hearing 20 00 After hearing 40 00 78. Factum in Review, to each party 6 00 79. On appeal from Trinity House or other tribunal to the Su- perior Court, if contested — Attorney for appellant 20 00 Attorney for respondent 12 00 If not contested — Attorney for appellant 12 00 W. C. Meredith, Chief Justice S. C. * Charles MoNDELET, J. J. Short, J. C. S. A. POLBTTE, J. C. S. r A. Stoaht. J. H. Berthelot, J. C. S. T. J. J. LORANGER, J. C. S. L. V. fcitCOTTB, J. C. S. F. G. Johnson, J. S. C. J. T. Tasohereau, J. C. S. . . , c. Jos. N. BossE, J. J. Maocire, J. S. C. F. W. Torrance, J. S. C. Quebec, 30th December, 1888. Published in open Court, registered and entered at Quebec, the 30th day of December, 1868. Fiset «fc Burroughs, P. S. C. 600 ADVckATKh' FEErt IN THE CIRCUIT fOURT. ADVOCATES' FEES IN THE CIRCUIT COURT. It U ordered that thu fuUowing feos be alluwed tu the oouiisel, ad- vocates and atturueys practiaing in the Circuit Court in aotiuna to be instituted, and upon other proceedings to be connnencod from and after the day on which the present tariif shall bo entered by the Clerk of the Court in the registers of the same as by law directed ; and the Tariff of Fees for counsel, advocates and attorneys practising in this Court, the original whereof was entered in the registers of the Superior Court at the City of Quebec, on the 2Uth day of July, 1862, is hereby repealed in so far as regards actions to be instituted, and other pro- ceedings to be commenced, from and after the day on which the pre- sent Tariff shall be so entered in the registers of this Court. Vide, ante. C. C. P. art. 1059. In ccLsea over 860. ACTIONS NOT CONTESTED. KiaST CLASa. Over 8100. Pltff. Oelt 1. If the action be settled before the return 810 00 — 2. If the action be settled, or if de- fendant confess judgment on the day of the return, or on the iiext following juridical day 12 00 — S. If the action be settled, or if de- fendant confess judgment after the delay mentioned in the next preceding numb<^r but before plea filed/or inscription for en- quete or inscription for final hearing on the merits where no enquSte is necessary 15 00 — 8IC0ND CLAIM, Over 860 to $100 Pltff. Deft. 86 00 — 8 00 — 10 00 — T. advocates' fees in the CIUCL'IT COURT. 6l>7 he oouHBol. ad- in aotioiiB to b« oMcod from and rod by the Clerk rected ; and the )racti»iiig in this rsof theHuperior , 1862, is hereby 1, and other pro- ,n which the pre- Court. niWt CLAM Uver f lOO. I'UII. Ucll 4. If the action be aottlod after the inncription on the roll for proof but before the olountj of thv un- 4ii<^te ; or if the action be set- tled afterthe inscription forbear- ing on the merits where no en- qu^tu is necessary, or if judg- ment be rendered on such Inst mentioned inscription 910 00 — 6. If the action be settled after en- qxxHo closed, or if judgment be rendered in such action after enquOte 20 00 — ti. In any of the above cases in which the defendant may have ap- p«ared by attorney, to defendant's attontoy on actions returned, or on conyi di/uut — 400 AOTIONM CONTE8TKD. ■BioNI) CLAM uv«r mo to 1100. ntff. Lhift. 812 00 - 30 00 — 3 00 BBCONU CLAM. Over WO to »100 Pltfl. Deft. 86 00 — 8 00 — 10 00 — 7. If the action be settled after the filing of any plea other than a plea to the merits and with- out enqu6te on such plea or if action be dismissed on such plea without enqufite 820 00 815 00 812 00 810 00 If there be an enqu^te on any • t such plea, an additional fee of 84 to each attorney. 8. If the action be settled after the filing of a plea to the merits, but I before the inscription on the roll for proof where an enquSte is necessary, or before the in- scription for final hearing where no enqu6te is necessary 24 00 20 00 15 00 12 00 9. If the action be settled after the inscription on the roll for proof, but before the inscription for final hearing 28 00 22 00 18 00 14 00 098 ADVOCATES FEES IN THE CIRCUIT COURT. nnsT CLASS. Over $100. Pltff. Deft. SRCOSD CLAftS. Over «flO to *100. Pltff. T/cft. 10, If the action be settled after the inscription for final hearing, or if judgment be rendered on such hearing ^ 00 824 00 820 00 016 00 In any case where there are more defendants than one, and where they sever in their defence : to plaintiff's attorney on each additional issue one-half of the sum he would have received had there been but i)ne issue, the whole amount payable in equal proportions by the party ur parties to each issue. The costs in actions to account to be taxed as against the plaintiff according to the amount demanded, and as against the defendant ac- cording to the amount for which he is accountable. In actions of damages for personal wrongs (excepting in actions in which the court shall find the damages to be under forty shillings ster- ling) the costs to be taxed as of the class to be determined by the tinal judgment. In any action of ejectment under the Lessor and Lessee's Act, not including actions in which either rent is, or damages are, sued for (which actions are provided for by statute) the costs to be as in per- sonal actions for a sum of money equal to the value of the premises leased for the year current at the time of the institution of the action, or if the lease shall have expired, then for the last year to which tnc lease extended. In suits in this court, under $1 00, for fees of office, duties, rents revenues or sums of money payable to the Crown, or which relate to any titles to lar^s or tenements, to seigniorial or other annual rents, and such like matters and things, whereby rights in future may be bound, and in hypothecary and mixed actions under $100, there shall, except when otherwise expressly provided for, be the same fees as in merely personal actions, according to the amount or value of the thing awarded, unless there be an evocation by either of the parties, and then the fees on the evocation shall be the same as in actions of the second class in the Superior Courts, which costs shall include all ser- vices in both Courts. ADDITIOyAt FEES IN ALL CASES OVER §60. IST CLASS. 2nd. class. Over $100. Ov. $00 to 8100 11. For the second and every additional copy of the plaintiff's declaration 8100 §100 ADVOCATES FEES IN THE CIRCUIT COURT. ()99 BRCOSD CLAHB. aver «"0 to «100. Vltfl. I>eft. 20 00 816 00 le, and where ach additional :here been but iB by the party ,t the plaintiff ( defendant ac- ig in actions in ,y shillings ater- ned by the final lessee's Act, not 3S are, sued for to be as in ptr- of the premises on of the action, ear to which tne ice, duties, rents [r which relate to jier annual rents, future maybe JlOO, there shall, [e same fees as in -alue of the thing the parties, and [ill actions of the ill include all ser- 560. J8T CLASS. 2SD. CLASS. CereiOO.Ov.SMtoSlOO m 00 SI 00 IRT CLASS. 2nd CLASS. . Over #100. Ov.tfiO to «00 12. For affidavits to obtain simple attachment be- fore judgment, attachment in revendication, - "' or attachment for rent when affidavit required and action commenced by such process : this fee not to be allowed on any affidavit refer- ring in general terms to the facts set forth in the petition or pleading in support of which such affidavit is made ^ 00 13. If any writ of attachmefit against moveables be sued out at any time after the institution of the action. To the attorney suing out the same (i 00 14. On every declinatory or dilatory exception, vr exception to the form, and on every demurrer over-ruled. To the plaintiff's attorney 4 00 To the defendant's attorney 4 00 15. On any other plea over-ruled, :.Iter law issue raised upon it, To the attorney of the successful party 4 <» To the opposite party 4 00 10. To the defendant's attorney on every dilatory exception maintained . . o 00 4 To the plaintiff's attorney 3 00 2 The fees allowed in the foregoing numbers 14 and 16 are exclusive of the fee allowed when the enqufite takes place upon a prelimi- nary plea, 17. If the plaintiff be permitted to amend his de- claration after filing of an exception to ,the form, To the defendant's attorney 2 00 2 00 18. If the plaintiff be permitted to amend his de- claration after filing of a demurrer, To the defendant's attorney 4 00 4 00 19. For all proceedings on any petition, motion or rule not specially provided for, upo)i which ccts are ordered to be paid. To the p<*rty to whom the costs are awarded 2 fM) 1 00 dame fee on motion or other proceeding to call in creditors, including affidavits. 82 00 4 00 2 00 2 00 2 00 2 00 00 00 700 ADVOCATES FEES IN THE CIRCUIT COURT. iBT CLASS. Over $100. 20. When the enqu^te in any contested case is continued, party bound to proceed n«t be- ing ready, , , To adverse party 81 00 21. For all proceedings respecting the putting in of security, To each attorney 2 00 22> On any re-heaiing upon the merits ordered by the Court in any contested case, , To each attorney 5 00 On any re-hearing ordered upon any pleading — To each attorney 3 00 On any re -hearing ordered upon any rule or other proceeding not specially provided for — To each attomi v 2 00 23. For all proceedings in continuance of suit (re- prise d'iiistmice,) by petition or motion of the reprenant Vinstance — To the attorney continuing the suit .. 5 00 To the attorney of the opposite party 3 00 Costs as of the original action, if the con- tinuance of suit be contested, or if it be made by action, and also on proceedings by action to have judgment declared executory or jitgement commun. 24. On every copy of subpoena, certified by attor- ney 10 25. For all proceedings on suing out a writ of exe- cution 1 00 26. For all proceedings on suing out a writ of at- tachment after judgment, if the declaration of the garnishee be not contested 5 00 And for every additional garnishee above the number of three.. 1 00 If contested, the costs to be the same as in a contested personal action, the class to be de- termined by the judgment against the garni- shee, if the costs be payable by the garnishee, and by the amount claimed by the contesta- tion if the costs be payable by tKe party con- testing the declaration. 2nd class. O\.»60tther inci- dental proceeding, there shall be i llowed to each attorney 6 00 29. For prosecuting to judgment a report of dis- tribution not contested 5 00 30. For all proceedings upon a contestation of a report of distribution which sliall not be withdrawn or acquiebced in before the in- scription for final hearing; on the merita, when the amount of the c /'AfCation contested exceeds 8100 — To the attorney contesting 10 00 To the attorney claiming 8 00 31. When the amount o' the collocation contested does not exceed SiOO — To the attorney contesting — To the attorney of the party claiming — 32. If the contestation be withdrawn or acquiesced in before the inscription for final hearing on the merits, one-half of the above fees. 33. For all proceedings after judgment ordering an 'j,ccount to be rendered in any actiun t j account, if the account be not contested — To each attorney , 6 00 34. If the account bo contested, the costs to be the same as in a contested personal action, the class to be determined by :he amount for which the rendant compte shall be declared Skd clam. Ov.960 to «10O 83 UO 00 00 4 00 3 00 6 00 4 00 4 (X> 702 ADVOCATES FEES IN THE CIRCUIT COURT. |8T JLAIW. 2.ND CLAftH. Over «100. Ov.gOO U) il(K> accountable beyond the amount admitted to be duo by the account iiled if the costs be payable by the rendant compte ; and by the amount claimed by the dibaU de compte if the coats be payable by the uyant compte. 35 . For all proceedings to cause a curator to be appointed to a delaissement in an hypothecary action ^3 00 And to the curator 3 00 INTERVENTIONS, ETC. 30. Costs on interventions and incidental cross de- mands to be the same as on original demands of the same class. 83 00 3 0< ) OPPOSITIONS FOR PAYMENT, ETC. 37. If not contested 6 00 38. If contested, costs to be the same as on an ori- ginal demand for the same amount excepting that the contestation in the appealable side of the Court, of any opposition for a .sum not exceeding 360 shall be the same as in a con- tested action for a sum exceeding 860 and under 0100. 39. Ou any opposition to withdraw or to annul, not contested 6 00 40. If contested, the same fees as in the original action. 4 00 4 Ot COMMISSIONS ROGAIOIRES AND ORDER.S FOR THE EXAMINAT.ON OV WITNESSES. 41. To the attorney suing out the same 2 00 2 (Hi 42. For drawing interrogatories or cross-interroga- tories — To the attorneys engaged where the writ or order is executed — 3 00 3 IKi 43. For taking instructions, examining papers, &c. , &c. , — To each attorney 400 4 W 44. For the examination in chief or cross-examin- ation of each witness ' 1 00 1 00 IT. ^88 2SI> CLASS- rtOO. Ov.«00to«100 ioo saw 300 ^^ 6 00 4 Ott 6 00 4 U<> 2 00 2 (H. 3 00 4 00 1 00 3 U 3 00 And to the defendant's attorney 2 00 1 50 3. 4 00 2 00 2 00 1 30 1 50 1 00 2 00 1 00 * The following items of the Tariff of December 24th, 1857, are not abrogated by that of December 30th, 1868:— 1. For any 8tat«>juent {articulation) ot facta 84 00 2. For the answer thereto 3 00 + See D'Anwur et al v. Bourbon, under (ft. 91, C. C. P, ante. . '••-.■ advocates' fees in the circuit court. 705 CLAHS. 3RD CliAM. or under, «25 or un- but der. «2S. gi 50 SI 00 2 00 I 50 1 50 1 00 3 00 \ 50 2 00 1 00 I7, are not abrogated 84 00 3 00 'X 10. 11. 12. i;v 2 00 1 50 2 50 1 50 3 00 4 00 knte. , In CI.AH. 2IID CbAU. 3llD CLAHH. 160 ur under, 140 or under, 9% or nil- but but der. •bove 940. above 125. On the same, in actions setteld or dis- continued after contestation, — To the plaintift's attorney 5 00 3 00 To the defendant's attorney 4 00 2 50 On the same, when the judgment shall be given after contestation, — To the plaintiff s attorney (i 00 3 50 To the defendant's attorney 5 00 3 00 In all hypothecary or mixed actions settled before return an additional fee, — Tc the plaintiff's attorney 300 300 If settled after enquete, or if judg- ment be rendered, an additional fee — To the plaintiff's attorney 400 400 In actions of damages for personal wrongs, (exceptitig in actions in which the court shall find the dam- ages to be under 40 shillings ster ling,; the costs to be taxed as of the class to bo determined by the final judgmeiU, unless otherwise ordered by final judgment. On each opposition to withdraw, to annul, or to secure charges, or other oppositions or interventions not contested 3 00 2 50 160 On all oppositions (excepting opposi- tions for payment), and interven- tions when contested, the same fees as in the original actions to which the same shall be incident. On oppositions for payment, if con- tested, same fees as in original ac- tions for a like sum. On attachment after judgment unci>n- tested 2 00 150 100 If the garnishee's declaration be con- tested, same fees as in original actions K* H like sum. . "I '■ 1 ■% 70G advocates' fees in the circuit court. 1st clau. -Id d clau. 3h u r l aud. 100 or under 940 or under :filt or lui- but but (ler. above #40. above 9!!6. 14. On 8uiiig ont any writ uf attachment in revendicatiun ur simple attach ment before inf^^"..^ut or on any special declaration ro(iiiired by the Court — To the plaintiff's attorney 2 .00 1 50 I ()(> 15. For each copy, more than one of any declaration, petition, intervention or opposition 75 5U '2.') 16. In all incidental cross-demands, the same fees that are allowed in original actions for a like sum. 17 . For each plea required to be in writ- \ ing ordered by the Court, including ' copy- To the defendant's attorney 160 100 51 • 18. On each proceeding to continue the suit, or to declare a judgment execu- tory or for coercive imprisonment, or in any case of rebellion A j^mtice, or to set aside an attachment on the ground that the allegations of the aftidavic are untrue — To the attorney prosecuting the same, if contested 4 00 3 00 2 IXt If uncontested 3 00 2 00 100 And to the attorney resisting the ap- plication 3 00 2 00 160 19. On a commission for the examination of witnesses, and on all proceedings relative thereto — To the attorney suing out the same . 3 00 2 00 1 50 And to the attorney of the opposite party 3 00 2 00 1 5(i To the attorney employed by either party to attend to the execution of such commission 3 00 2 00 2 20. On any demmurer maintained 2 00 1 50 1 .50 ,T. ADVOCATES FEES IN THE CIUCUIT fOUHT. 707 CUAM. SHUrtAM. r um\er >»«> '"• ""• but ''" ,ve •26- 1 50 100 » ()«» % •» 3 00 2 00 2 00 iV> 2 W 1 Ot^ 1 50 21. Whon the enqudte in any contested case us continued, party bound tu pro- ceed not being ready — To adverse party IWt CLAM, 'JNO clam. iHO (.'LAM. leonruntler, fiOortiiKlor, t°26 or un- but t)iit (ior. abuve $40. itlxive tHi. 1 00 76 5(» W. C. Mkredith, Chief Justice S. 0. ClIAKLBS M'»NDELKT, J. K. Shobt, J. S. C. . V,; A. POLBTTE, J. C. 8. '" A. Stuart. J. A. Berth E LOT, J, C. S. ' • T.J. J. LoRAKdER, J. C. S. L. V. SiCOTTE, J. C. S. F. G. Johnson, J. 8. C, J. T. Taschereau, J. C. S. Jos. N. BossE, J. J. Maguire, J. S. C. F. W. TORRANOE, J. 8. C. Quebec, 30th December, 1868. Published in open Court, registered, and entered at Quebec the 30th day of December, 1868. FisET & Burroughs, P. S. 0. 2 00 1 50 2 00 1 .^0 2 00 2 0<) 1 50 1 50 f FORMS CONNECTED WITH THE CIVIL CODE. 709 APPENDIX. ■fRST PART. FORMS C'.nNJNE«jTED WITH THE CIVIL CODE. No. I. In connection with article 1834, Lower Canada, District of } We, of in , {Oroeers) hereby certify that we (have carried on and), intend to cairy on trade and business, as (Oi'ocerM), at , in partnership, under the name and firm of {or as the case vuiy be,) or I (or we) the undersigned, of hereby certify that I (or we) (have carried on and) intend to carry on tmde and business as at in partnership with C. D. of and E. F. of , and that the said part- nership hath subsisted since the day of one thousand , and that we (or I or we and the said C, D. and E. F.,) are and have been since the said day, the only members of the said partnership. Witness our (or any of our) hands at this day of one thousand (w as the case may he). ^^* ^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 ^ ^ 122 £ |j£ 12.0 u ■: HiolDgraphic Sdences Corparation A'.^ ^ 23 WIST MAIN STMET VMUTH.N.Y. 145M (716) •72-4503 710 FORMS CONNBCTED WITH THE CIVIL CODE. No. «. In connection with article 2299. NOTING FOB NON-ACCEPTANCE. (Copy of Bill and Endoraements.) On the 18 , the above bill was by me, at the request of , presented for acceptance to E. F., the drawee, personally (or, at his residence, office or usual place of business in the city, (town or village) of ,) and I received for answer, " " ; The said bill is therefore noted for non-acceptance. A. B., Not. Pub. 18 . Due notice of the above was by me served upon 4 q jJ' > ^^^ {eXreer,{ P«™onaUy, on the day of (or, at his residence, office or usual place of business in , on the day of ,) or, by depositing such notice, directed to him, at , in Her Majesty's Post Office in this city, (town or village,) on the day of , and prepaying the postage thereon.) A. B., Not. Pub. 18 . No. 3. In connection with article 2203. PROTEST FOR NON-ACCEPTANCE OR FOR ^^ON-PATMENT OF A BrLL PAYABLE OENF^RALLT. (Copy of Bill and Endorsements) On this day of , in the year 18 , 1, A. B., Notary Public, for Lower Canada, dwelling at )D£. FORMS CONNECTED WITH THE CIVIL CODE. 711 J by me, at the ce to E. F., the or usual place ,) and I The said bill is A.B., Not. Pw6. ( A. B, \ «pon\c. D.J day of business in ■ by depositing in Her Majesty's In the day •n.) A. B., Not. Pub. ^03. )N-PATMENT OF A its) le year 18 , 1, A. lUing at in Lower Canada, at the request of , did exhibit the original bill of exchange, whereof a true copy is above written, unto E. F., the •! -^1^!^- [ thereof, personally, (or, at his residence, office or usual place of business in ,) and, speaking to himself (or his wife, his clerk, or his serv- ant, &c.) did demand | ^^^ } thereof ; unto which demand -Jul- answered, " ." Wherefore I, the said Notary, at the request aforesaid have protested, and by these presents do protest against the acceptor, drawer and endorser (or, drawers and endor- sers) of the said biU, and other parties thereto, or therein concerned, for all exchange, re-exchange, and all costs damages and interest, present and to come, for want of ( acceptance | ^j ^^^ .^ ^.^ { payment ) All which I attest under my signature. (Protested in duplicate.) -,■.>..',:- A. B., ■ Not. Pub. No. 4. In connection with article 220S. PROTEST FOR NON-ACCEPTANCE OR FOR NON-PAYMENT OF A BILL PAYABLE AT A STATED PLACE. (Copy of BUI and Endorsements.) On this day of , in the year 18 , 1, A. B., Notary Public for Lower Canada, dwelling at , in Lower Canada, at the request of , did exhibit the original bill of exchange whereof a true copy is above written, unto E. F., the I ^'^^f ^ I thereof, at , ' ( acceptor ) • 1^. •J ■, 1: i 712 FORMS CONNECTED WITH THE CIVIL CODE. being the stated place where the said bill is payable, and there, speaking to , did demand | p^''^^^"^® } of the said bill; unto which demand he answered, " Wherefoit) I, the said Notary, at the request aforesaid, have protested, and by these presents do protest against the acceptor, drawer and endorsers, {or, drawer and endorsers) of the said bill, and all other parties thereto, or therein con- cerned, for all exchange, re-exchange, and all costs, damages and interest, present and to come, for want of < *®^®P ^^^ j. of.the said bill. All of which I attest under my signature. i 11 r.j. ;,a,; ^ (Protested in duplicate.) /',, » ' ''•■•■ ' '^ -- ^ ■ ■• -■--- ■■■■>-■•■ A. B., • ^ , > , Not.Pub. I > t. Li'' ■ ' ■■' No. S. In connection with article 2320. PROTEST FOR NON-PAYMEF" TESTED, FO ^^ A BILL NOTED, BUT NOT PRO N-ACCEPTANCE. If the protest is r\ade by the same Notary who noted the hilly it should immediately follow the act of noting and mmioramd/wm of service thereof, beginning with the w&rds " And afterwards on, &c.," continuing as in the last preced- ing form, hut introducing between the word " did exhibit." the word "again;" and, in a parenthesis, between the words " written, unto," the words ("and which bill was by me duly noted for non-acceptance on the day of last." .^'.^nr> ■,.. . ■ But if the protest he not made by the same Notary, then if should follow a copy of the original bill and endorsements and noting marked on the hill, — and then in the protest 3DE. FORMS CONNECTED WITH THE CIVIL CODE. 713 Etnce mt and \ of the lest aforesaid, eat against the and endorsers) or therein con- costs, damages ( acceptance | \ payment ) ite.) A.B., Not. Pub. to. BUT NOT PRO- who noted the of noting and with the woi'ds the last preced- [d " did exhibit." etween the words was by me duly ly of Notai-yythem'd id endorsements [n in the protesf introduAX in parenthesis, between the words " written, unto," the words (" and which bill was on the day of last, by , Public Notary for Lower Canada, noted for non-acceptance, as appears by his note thereof marked on the said bill.") No. 6. • .>-v: ... . ij 1 In connection with article 2320. PROTEST FOR NON-PAYMENT OF A NOTE PAYABLE GENERALLY. ' " {Copy of Note and Endoi'sevients.) On this day of , in the year 18 ,1, A. B., Notary Public for Lower Canada, dwelling at ,' in Lower Canada, at the request of , did exhibit the original Promissory Note, whereof a true copy is above written, unto , the promisor, personally, (o?* at his residence, office or usual place of business, in ,) and speaking to himself {or his wife, his clerk, or his servant, &c.,) did demand payment thereof; unto which demand {^^«} answered," ■ ,»'*•.'::. Wherefore I, the said Notary, at the request aforesaid, have protested, and by these presents do protest against the promisor and endorsers of the said Note, and all other parties thereto or therein concerned, for all costs, damages and in- terest present and to come, for want of payment of the said Note. AU which I attest under my signature, (Protested in duplicate.) A.B., Not. Pub. 714 FORMS CX)NNECTED WITH THE CIVIL CODE. I. No. 7. In connection with article 2320. PROTEST FOR NON-PAYMENT OF A NOTF PATABtE AT A STATED PLACE. (Copy of Note and Endorsements.) On this day of , in the year 18 , 1, A. B., Notary Public for Lower Canada, dwelling at , in Lower Canada, at the request of , did exhibit the original Promissory Note whereof a true copy is above written, unto , the promisor, at ^ being the 8tat«d place where the said Note is payable, and there, speak- ing to , did demand pa}rment of the said Note, unto which demand, he answered, " ." Wherefore I, the said notary at the request aforesaid, have protested, and by these presents do protest against the promisor and endorsers of the said note, and all other par- ties thereto or therein concerned, for all costs, damages and interest, present and to come, for want of payment of the ■said note. All which I attest under m)r- signature. (Protested in duplicate,) ''"'■' '"'"' "' ,'""'■" ]^ A. B. ""^"" ^ * '' ' '" ' ■ Not. Pub. f,f <£i D£. FORMS CONNECTED WITH THE CIVIL CODE. 716 S AT A STATED J year 18 , 1, ling at I lid exhibit the copy is above ^ being the id there, speak- t the said Note, juest aforesaid, ttest against the ^ all other par- damages and payment of the A. B. Not. Pub. Form No. 8. In connection with articles 2303, 2326. NOTARIAL NOTICE OF A NOTING, OR OF PROTEST FOR NON- ACCEPTANCE, OR OF A PROTEST FOR NON-PAYMENT OF A BILL. {PUice and date of noting or of protest.) \ 1st. \^ To T. Q., (the drawer.) . .,, , .' • at days Sir, Your Bill of Exchange for $ , dated at the , upon E. F., in favour of C. D., payable after ! j^, ' j- was this day, at the request of , .„ f noted ) u ^ ^ ( non-acceptance. ) ^"*y i protested | ^^ ™^ ^°^ \ non-payment. } A. B., Not. Pub. (Place atid date of noting or of protest.) 2nd. To C. D. (endorser) (or F. G.) at Sir, "' Mr. P. Q's Bill of Exchange for S , dated at the , upon E. F., in your favour (or in favour of C. D.,) payable days after 4 j?^^^ ' [ and by you endorsed, was this day, at the request of , duly f noted ) , c ( non-acceptance. ) ( protested j ^ ( non-payment. ) A. B., Not. Pub. 716 FORMS CONNECTED WITH THE CIVIL CODE. !s; FOBM No. ». In connection with articles 2303, 2326. NOTARIAL NOTICE OF PROTEST FOR NON-PAYMENT OF A NOTE. (Place and date ofpi'otett) To at Sir, Mr. P. Q's Promiasory Note for $ , dated at {days \ months > after date to on j IE F i **' order, and endowed by you, was this day, at the request of , duly protested by me for non- payment. ^ ' ■ * Noi.Puh. '' No. 10. In connection with articles 2803, 2326. ' ; t ACT OF NOTARIAL SERVICE OF NOTICE OF A PROTEST FOR NON-ACCEPTANCE OR NON-PAYMENT OF A BILL, OR OF NON-PAYMENT OF A NOTE (to he subjoined to tJie Pro- , teat). . « ■'■■.-(■•- •'■! ...f;^ :' : n, ■ ii V^'--; ■ ■ And afterwards, I, the aforesaid protesting Notary Public, did serve due notice in the form prescribed by law, of the foregoing Protest for{:™n- } of the {™ } thereby protested upon | ^; g- 1 the | ^^f^^ } pei-son- ally, on the day of - (w, at his residence, CODE. POHMS CONNECTED WITH THE CIVIL CODE. 717 ]|"' za26. lENT OF A NOTE. , dated at hs latter date to was this day, at 5d by me for non- A. B., Not. Puh. 3,2326. . T A PROTEST FOR OF A BILL, OR OF joined to tfve Pro- ng Notary Public, ■ed by law, of the o^*^« I note ) drawer | pgi^son- jndorsers ) '^ cw,athis residence, oHice, or usual place of business in , on the ; or, by depositing such notice, directed to the said -j p' j^' [at , in Her Majesty's Post Office in this city, (town or village), on the day of , and prepaying the postage thereon. In testimony whereof, I have, on the last mentioned day and year, at aforesaid, signed these presents. A.B. Not. Pub. No. II In connection with articles 2304, 2305, 2320, 2327. PROTEST BY A JUSTICE OF THE PEACE (WHERE THERE IB NO NOIaRY) for NON-ACCEPTANCE OF A BILL, OR NON- PAYMENT OF A BILL OR NOTE, t {Copy of a Bill or Note and Endorsements.) On this day of , in t' year 18 I, N. 0., one of Her Majesty's Justices of the i'oace for the District of , in Lower Canada, dwelling at (or near) the village of , in the said District, (there being no practising Notary Public resident at or near the said village, (or any other legal cause,) did at the request of and in the presence of , a house- holder in the said District, well known unto me, exhibit the original ^ „* f whereof a true copy is above written ( drawer ") unto P. Q., the -< acceptor > thereof, i)er8onally, (or, at his (promisor j residence, office, or usual place of business in ,) and speaking to himself, (his wife, his clerk or his servant, 718 KORMH CONNRCTEI) WITH THE I'lVIL CODE. &c.,) did demand < ^^^^vmenT*' > thereof unto which demand Wherefore I, the said JuHtice of the Peace, at the reijuest aforesaid, have protested and by these presents do protest i drawer and endorsers \ against the < promissor and endorsers V of the said ( acceptor, drawer and endorsers j I note ! *^"^ *^' other parties thereto and therein con- cerned, for ail exchange, re-exchange, and all costs, dam- ages, and interest, present and to come, for want of f *^.^*^P^_T ! of the said -i^'AL \ . \ { payment j ( note. J All which is by these presents attested under the signa- ture of the said (Hie ivitnesa) and under my hand and seal. ' ' ' (Protested in duplicate.) {Signature of the tvitness,) i (Signature and seal of the J. P.) 'H • :V .:,,:■ No. 19. ■ • r\. In connection with article 2337. SCHEDULE OF FEES AND CHARGES. For presenting and noting for non-acceptance any Bill !$ cts. of Exchange, and keeping the same on record 1 00 Copy of the same when required by the holder 50 For noting and protesting for non-pajrment any Bill of Exchange or Promissory Note, Draft or Order, and putting the same on record 1 00 CODE. which (lemanayinent to the snid C. D., his heirs, executors, curators, administrators, or assigns, of the sum of . dollars, and lawful interest, as in the said deed is expressed ; which said deed is witnessed — (specify here the names of the witnesses as in form 14) And the same deed is hereby required to be registered by the said C. D. As witness his hand, this day of. Sic. CD. Signed in the presence of E. F., G. H. No. 16. In connection with articles 2098, 2139. MEMORIAL OF AN ONEROUS DKED OF GIFT INTER VIVOS. A memorial to be registered of a notarial copy of a deed of gift inter vivos, bearing date at on the day of in the year of our Lord , made between A. B. of, &c., (and C. D., his wife by him in this behalf duly authorized), of the one part, and E. F. of, &;c., of the other part, (A full description of the parties to he inserted, as in the deed ;) before G. H., public notary and witnesses, (m* before J. K., and another, public notaries, as the case may be,) by which said deed of gift, the said A. B. and C. D., his wife, did give, grant and confirm into the said E. F., his heirs and assigns, all that, &c., (Insert a description of the pro- perty conveyed hy the deed of gift) to hold to the said E. F. his heirs and assigns for ever ; subject, nevertheless, to a certain life-rent, consisting of &c., (Here insert the particu- lars of which the life-rent is composed) which said life-rent 46 722 FORMS CONNKCTED WITH THE CIVIL CODE. is payable by the said E. F., to the said A. B. and C. D., his wife, each and every year during the term of their natural lives, and in the said deed of gift inter vivos, is expressed : And the said deed of gift is hereby required to be registered by (the said E. F.) As witness his hand, this day of E. F. Signed in the presence of :-- N. p. - ■,. - f^-.v^: ..•.. No. 17. In connection with the articles 2098, 2139. 1 ,3' MEMORIAL OF A WILL, OR OF A PROBATE, OR AN OFFICE COPY, OR A NOTARIAL COPY THEREOF. A memorial to be registered of the probate (or, of the original will, or an office or notarial copy, or as the aise may be,) of the last will and testament of G. H., late of bearing date, &c., by which will the said testator did give and devise uuto, &c. (as in the will,) to hold, &c. ; which said will was executed by the said testator, in the presence of A. B. of, &c., 0. D. of, &c. : And the probate of the said will, (or the original, or an office or notarial copy, or as the case may be,) is hereby required to be registered by (O. P., one of the devisees therein named). As witness his hand, this day of -,-V- r.. _ Q p Signed in the presence of S R. S. T. V. >DE. Bind C. D., his their uatural is expressed : ) be registered B day of E. F. 8, 2139. OE AN OFFICE aHEOF. bate (or, of the . (18 the ci 1 1 i t. 1 r ' t J twenty-one years, issue of the marriage of the late Q. H., (the name of the father) deceased, with the late J. K., (the name of the mother) also deceased, which appointment was made by and under the authority of L. M. (Insert the name a/nd description of the Judge by whom the appointment has been made ;) at, &c., (the pkuce where the appointrnent was made) on the day of , in the year of our Lord : And the said appointment is hereby required to be registered, for the preservation of the hypo- thec resulting therefrom, on the real estate of the said A. B., situate in the of (t?ie name of the Regis- tration covmty or division within which the registration is to he Tfiade, and describe the property) by N. O., of &c., (Insert the name and description of the person requiring the registration). As witness his hand, this day of ,&c. N.O. Signed in the presence of O.P. Form No. In connection with articles 2121, 2139. MEMORIAL OF A JUDGMENT. A memorial to be registered of a judgment in Her Ma- jesty's Court of , at , in the year of our Lord , between A. B., of , &c., plaintiff, and C. D., of , &c., defendant, for dollars, with interest from, &c., and costs taxed at dollars; which said judg- ment was rendered on the day of the said month of , and is hereby required FORMS CONNECTED WITH THE CIVIL CODE. 725 3DE. be late G. H., late J. Km (''i* )ointment was isert the name pointment was the year of our ment is hereby n of the hypo- of the said A. me of the lUg^- > registration is y N. O., of &C., zraon requirvag day of N. 0. 2139. lent in Her Ma- at between A. B., , &c., interest from, &c., which said judg- day of the said s hereby required to be registered by (the said A. B.). As witness his hand, this day of , &c. A. B. Signed in the presence of J. F. T.P. ' ' Form Na «!. In connection with article 2151. CERTIFICATE OF DISCHARGE FROM A JUDGMENT WHICH HAS BEEN REGISTERED. To the Registrar of I, A. B., of, &c., do hereby certify that C. D., of, &c., hath paid me the sum of money due upon a judgment recovered in Her Majesty's Court of %% in the year of our Lord by me, the said A. B., against the said C. D., for dollars, debt, and dollars, costs, which judgment was regis- tered on the day of in the year of our Lord ; And I do hereby require an entry of such payment to be made, in the register wherein the same is registered, pursuant to law. As witness my hand, this day of in the year of our Lord, &c. A. B. Signed in the presence of J. K., of ,&c. L. M.. of , &c. FORMS CONNECTED WITH THE CIVIL CODE. [3f Is '^ 726 Form No. In connection with article 2151. A CERTIFICATE TO DISCHARGE A MORTGAGE. To the Registrar of I, A. B., of, &c. (the mortgagee in the deed or his heirs, executors, curators or administrators), do hereby certify that C. D., of, &c., hath paid the sum of money due upon a deed or mortgage, bearing date the day of in the year of our Lord made between the said C. D., of the one part ; and me, the said A. B. (or E. F., as the case may be), of the other part ; which was registered on the day of in the year of our Lord ; and I hereby require an entry of such payment to be made in the register wherein the same is re- gistered, pursuant to law. As witness my hand, this day of III the year of our Lord - Signed in the presence of 0. P., of, &C. R. S., of, &c. A. B. DE. ADDENDA. OAOE. i (yr his Mrs, by certify that le upon a deed £ in itween the said B. {UTt or of » Judge I oonditioiui as the hiB oMe or faotam e the caM is called INDEX. iasea filed from and date all other rules eaent rules shall be AROHAND, Ckrh of Apptals. Abamdonmkmt of Pbopibtt : By debtor arrested under Capia$ Means of effecting Notice to be given Plaintiff. Debtor admitted to bail must file statement within 30 days from judgment . . Party condemned to pay more than $80 bound to make statement, if required, after discusftion df his property Debtor in jail may file statement at any time Appointment of Curator Form of notice of application for appointment Any party may take proceedings to appoint Curator if Plaintiff neglects to do so Notice of appointment and form Curator takes possession of and administers pro- pOrC^ aa •• •• •• • -i •• •• Rights of Curator Delay for oontestine declaration of debtor. . Contestation must be proved within the same delay Debtor bound to attend before Court or Judge to be examined Imprisonment of debtor if he fails to attend or an- swer, or if plaintiff succeeds Liability of sureties if debtor be not enrrendered . . Discharge of debtor if the contestation fail, effects of Effects of abandonment Discharge of debtor Rights of Bailleur de Fonds upon . . 33 V. o. 10 ABANDONinNT Or 8UIT : During jury-trial (See Discontinuanob). Aebrbviationb : Table of Arrooation : Of laws of procedure by Code Absbntkb : Service of summons on If in any other province Service of proceedings on Service of triplicate of seizure on AHV. 763 764 765 766 766 767 768 769 770 .395 PAOI. 393 393 394 394 394 395 395 396 397 397 776 399 217 vu 640 7ao INDEX. h* !'■* m 5 H f AmtmtM—conHnutd. ART. PAOl. Service of seizure by gamiBhment when defendant WM ■ummoned an an 615 3t3 Servion of attachment before judgment 862 447 Service of faiU et articlea on 223 166 Power of attorney may be required from a plaintiff who is an . . 120 90 In improbation 161 140 None required in recusations 183 146 Delay upon execution of judgments against Opening of doors, &o., where debtor is absent 652 290 669 303 Security for costs by . . 128-9 97 AOOOUNTANTS AND PbaCTITIONKRS : Reference to — powers of 340 200 Remuneration of 344 202 Motion for adoption of report 345 202 Reception of report May be appointed in actions to account 346 203 531 283 Accounting : Judgment ordering an account must tix delays to render it . . 521 281 To whom made — must be sworn to and fyled with vouchers — extension of delays . . 622 281 Form of 623 282 Receipts 524 282 Expenditure 626 282 Execution may issue for excess of receipts, if any 626 282 Contestation 527 282 Same attorney to be named by all contesting parties 628 283 Delay to answer contestation and to reply . . 529 283 Failure to fyle contestation, answers, &c. 630 283 Proof or reference to arbitrators, &o. . . 631 283 Judgment on account 632 283 Failure to make account by defendant 633 283 Accounts : Judgment, by default, on detailed . . . . . . 91 70 Acts : 8: probation In /(frt>\a panperU Creditor in»y not divide debt . . Court cannot go beyond ooncluaions of Possessory »3id petitory Adjocknmbnt : Of courts Of examination of witnesses . . Of seizure of moveables Adjudication ; By sheriff's sale (see Execution) Administration of Justick : Division of Lower Canada Officers in the new districts for . . Admission : Presumed when fact is not denied . . Notes to be taken at enquete of In non appealable cases, defendant is called on to make Adverse Title : Defendant may plead . . Advertisement : Of sale of moveables in Quebec and Montreal cities Of sale of immoveables by sheriff How printed in Oazette — Form Deposit with sheriff for Of sale by lioitation . . Advisement : Change of status of parties does not stay case when under Discharge in Q. B. of Advocates (see Attorneys). Affidavit : Commissioners for receiving . . Who may receive in circuit court Must accompany denial of signature, &c. . . Of jurors as to verdict cannot be received . . To accompany petition in revision of judgment by default And oppositions to judgment by defendant Or by third parties And oppositions to seizure of moveables Except in certain cases And of immoveables To accompany bids at sheriff's sales . . And registrar's certificate sometimes For Capias Where debtor is insolvent and refuses to assign art. 23 176 31 16 17 946 1 279 574 684 1365 1367 144 266 1098 1110 573 648 649 647 929 434 1171 30 1060 145 428-9 PAGE. 87 143 32 90 23 483 17 181 306- 366 637 640 120 176 637 540 305 339 340 339 476 228 573 30 526 121 326 486 264 4H6 264 511 278 583 308 684 310 661 343 666-7 851 701 365 798 406 799 418. 782 INDEX. By ^' 1*)' f ft f 11 t!|. ■f i^i ■ i.' 1' Arn DAVIT— eotUittiMd. AHT. PAOI. When debtor deteriontM ftn hypotheoated im- movMble 800 419 Where okim ii for dMnasee unliquidated 801 419 By whom made and reoeived 807 422 Form for warrant of arrest 424 Tranamiuion to S. 0. by OommiHioner 816 426 For attaehtnmt be/on jtulgmtnt 834 435 Where olaim ia for damages unliquidated 836 441 Cleric of the 0. 0. may receive 839 442 To obtain warrant of attachment 443 For judgmant by default 91 70 To accompany petition for habecu eorfnu 1041 617 606 Or injunction 41 V. c. 14 609 Aooompunies^Iat when aummons ia baaed on it 16 22 ArriKMATioN : Inlieuofoath ( 30 (666 30 175 Affixino Sbalb (see Seals) 1279 618 AuAH Writ of Bxboction (see Exkoution) 679 306 At.ibnation of Minor's Propkrtt : Order of court neceaaary 1267 611 And advice of family council, and report of ezperta 1268 611 Nomination of ezperta 1269 611 Dutiea of experts 1270 613 Failure of experta to agree 1271 614 Report submitted to family council . . Judge fixes upaei price 1272 614 1274 616 Reaaona of judge to allow sale form part of record 1275 615 Publication of sale 1276 615 Private Bale may be efiected in certain cases 1277 616 Where immoveable is held undividedly by tutor and minor 1278 616 Where value of immoveable is under 9400 . . 35 V. C.7 616 Allow ANCB : To Jurors 416 221 To party imprisoned 790 402 Debtor cannot be re-taken if discharged upon de- fault to pay 796 404 Ambmdmbnt : Of writ and declaration 53 47 After exception fyled 117 88 After proof 320 192 In jury trials 420 222 Of return 80 04 Delay to plead in case of allowance of 142 120 Of register of judgment 474 247 Amiablbs Compositeurs («ee Arbit&atiox) 1341 632 Animals : Justice of the peace may hear actions for damages to 1216 693 INDEX. 733 ART. ?*<»■• lim- 800 801 807 815 834 836 830 01 1041 7. 0. 6 . 0. 141 It 16 419 419 422 424 425 435 441 442 443 70 617 605 509 22 ( 30 1 30 I B66 176 1279 618 679 1 306 1267 1 expertol 1268 i "^^ ' 1269 1 1270 1271 1272 1274 r«»rd 1 m5 1277 *°''"^'' 1278 .l35V. C.7 611 611 611 613 614 614 615 615 615 615 616 616 416 790 ipon de- MIlBgM tol 1216 Annul : OppoBitioiu to Annullino : Lett«n patent . . Anhwrkm : To preliminary pleai . . To pleas to the muriti To article* of improbation To articulation of facta To fait* et articUa Default to make . . Vivd voce Refuaal to make . . Form of Party may refrain from using Division of To contestation of account To proceedings by garnishment To reasons of appeal . . Appkal : Lies from judgments of the Superior Court Notice of — from judgment on report of distribu tion 36V., 0. 14, s. From iuugment of distribution From judgment on capiaa — by defendant . . By j^aintiff Oases where it may be had from final judgment of the S. C Brought to Montreal or Quebec From interlocutory judgments Motion necessary for leave to appeal in latter case Service of motion for leave to appeal Delay for bringing Writ Extension of delay for returning writ Service of writ, and return Giving of security Before whom received Completion of record, preparation of transcript and transmission of papers to the Court of Ap peals Proceedings upon failure to return writ Judgment of non pros Appearances of parties Motion by respondent to quash To reduce security . . Cross appeals may be joined . . Reasons of appeal must be filed within eight day from return Delay where demurrers are produced Answers thereto Effect of failure to answer . . ART. PAOI, 667 34(1 1U34 514 1()8 79 138 116 171 143 211 152 2ti4 158 225 158 226 160 226 UK) 228-0 161 230 161 231 161 529-30 283 616 323 1136 560 513 270 380 761 392 822 428 823 429 1115 542 1117 546 1116 544 1119 547 1120 548 1118 546 1121 548 1122 550 1123 551 1124 551 1125 555 1126 6.56 1127 .556 1129 f.57 i 1128 556 1 1130 668 1131 66!» 1132 559 1133 659 1134 660 1136 560 1138 560 734 INDEX. Appial — rrmttniMf/. Delay* may be prolonged DiamisMl of «^|>eal upon default to fil* . . Election of domicile in Filinu of Faetntn .< Inacnption for hearing Frum Circuit Court; Lies in certain oaaea . . Heoiirity to b«< ^iven One surety sufHces . . When security for costs only is necessary Drought by petition — delay for servinu it Delay for return of writ, filing of petition, and transuiission of record Appearance . . Failure to send up record . . Hearing of oisu after filing ot factum Forfuiture of right of appeal By whom it may be taken If one of several parties to the suit dies, proceed- ings may be continued Quorum. Routine business . . Recusation in . . Incompetency of judge who sat in Court below . . When incomjivtency ap[)enrB on record Notice of leave of absence of judges Recording of fact where judge cannot sit . . Ropliiuing of judgen by those of the Superior Court Return of judge replaced, &o., does not afifect powers of replacing judge Order for the completion of the record may issue Interventions, disavowal and other incidental pro- ceeMngs may bo tiled in appeal. . Discontinuance in Peremptions in . . Presence of parties to be heard Rendering of judgment, absence of judges Discharge of advisement Adjournment of court to a day in vacation Where judgments may be rendered... Form of ji'dgment Taxation of costs Exocutiori of judgments Powers of court, tariff of ff^er,. rilia f practice From judgment, on oppi . inn to luomage. . In proceedings referring to corporations and public oflices From judgments concerning letters patent. . In proceedings relating to the illegal detention of township lands .. .. Not allowed from judgment on certiorari . . To the Privy Council (aee Privy Council) . . To the Circuit Court from judgments of commis- sioners or justices ART. 1130 1137 1130 1140 lUl 1142 1143-4 114A U4 1150 iiol 1152 I 116a 11&4 iir.5 UM 1167 1168 1160 IIUO 1101 1102 1163-4 11G5 1166 1167 1168 1160 1170 1171 1172 1173 1174 1176 1170 1177 996 1033 1037 1113 12:i4 1178 PAOI. 660 560 6410 661 661 661 664 6t.^ 665 ban 6<)7 5(i8 o60 r.60 670 670 670 670 670 670 671 .-»71 671 572 672 672 673 673 673 674 574 574 676 676 577 497 514 515 541 601 577 1057 523 INUKX, 1U PAOB. and irooeed- ilow lor Court affect ay iMue ntal pro- 1163-4 1166 stice iA public tention of 1033 1037 commw- 1057 Appialahli Cahbh, '^'h<'uit Court : | Certain provitiont relating to 8. 0. apply to ContttUttitm in Proof OontMtod oaaea. are inaoribed fur prtMif and hearing at the lame time . . Notice of inaoriptiun Taking of vvidence Proof taken duwn in writing Suinuiona uf witneisea Keterration of argument on dvinurrur till finni hearing Proof may oe had or witneaaes ntay be exam- ined in another circuit by order of the court JttdtfnxtnU and cuata Absence of judge and tranamiuion of decision . Ej-taition againat moveablea in anydiatriot, to whom addressed . . Another writ may be had for another district when nu effects are found where judgment was rendered . . All oppositions to executions are within the jurisdiction of the court Stay of proceedings Affainst immoveables in default of moveables. . VVrit is addressed to sheriff and roturiied to 8. (J. Issue of writ de terris immediately in certain cases Proceedings on seizure and sale of immoveables Other formalities similar to those in 8. C. Transmission of record to 8. C. where an execu- tion against immoveables haa been re- turned to that court . . Remedy agaittat jvdymenta, by review And appeal . . Apveakance : liow and when fyled In the Circuit Court In non-appealable cases in term In vacation In proceedings against corporations illegally formed In actions under Lessors' and Lessees' Act . . In appeal from the S. C. In appeal from the C. C. In certiorari Appellant (see Appbal). Akbixhation : Submission WIkj may enter into . . A{»{)ointn)ent of arbitrators by the court . . Deeds of submission out of court Must be in writing Arbitrators must hear the parties and the proof, and deoiilu, -swearing of witnesses aw. lOM 1070 1071 1072 l(»73 1074 1075 1076 1077 1078 1070 lOHO 1081 1082 1083 1084 1086 1086 1087 1088 1080 1090 lOUl 1092 83 1069 1093 109!) 1001 891 1128 1160 1231 1341 1342 1343 1344 1346 1346 fMM. 5H0 MO 581 631 631 631 632 632 632 632 632 632 633 634 634 634 634 534 534 536 536 635 636 636 66 630 636 637 499 465 556 567 600 0:'2 632 «;« 632 632 633 736 INDEX. / Abbitration — wnMnued. Revocatioa of appointment of arbitrators . . In what cases the submission becomes inoperative Recusation of arbitrators Appointment of a third arbitrator Agreement of two necessary . . . Award is in notarial form Execution of extra-judicial awards Proceedings to obtain judgment on an award Abbitratobs : Reference by court to . . In Commissioners' Court Need not be sworn Proceedings and powers of . . Cannot award costs Remuneration of Motion to homologate report of and for judgment Reference in matters of accounting to (liifee Arbitration.) Array : Challenge of (see Jury-Trial) Arrest : Of debtor (»ee Capias) . . Of judgment (see Jury-Trial) Arret : BaW<*-arr^i simple (see Attachment before Judg- ment) En mains tierces Articulation of Facts : When they should be filed . . Form of . . . . . . Service of Written proof must accompany Answers to When facts set forth therein are held to be ad mitted Adjudication of costs when exhibits are not filed with Costs, when facts are proved which are denied by Costs, when party fails to file May be dispensed with Trial proceeded with after delay for filing . . Delay for inscribing if no articidations are produced Assault and Battery : Incompetency of Commissioners' Court to try suits for . . . . . . . . . . Assessments : Appeals to C. C. from judgments for Municipal . . No appeal to the Q. B., from the 0. C. in matters concerning school, church and parsonage . . > Jurisdiction ol Commissioners' Court . . . . i Oppositions not required in sheriff's sale for . . i ART. 377 785 422 834 865 207 208 209 210 213 211 212 213 214 215 217 220 360 118'J 1057 i 1142 1190 719 PAGE. 1347 634 1348 634 1349 635 1350 6:J5 1351 635 1352 635 1353 636 1354 636 341 200 1208 691 342 201 342-3 201 343 201 344 202 347 203 531 283 213 401 223 435 449 150 151 152 152 152 152 153 154 153 154 155 205 587 523 501 587 374 INDEX. W$" ABT. 1347 1348 1349 1350 1351 1352 1353 1364 341 1 200 ,208 591 34*2 201 342-3 201 343 201 344 "-^02 i. 1 'U? 203 ^e«t--l Sll 283 401 223 5 JODG- 834 855 435 449 212 1 1»2 be ad-1 217 220 produoedl 360 try suite ^ aicipal • matteraj 118y 1057 tor Attachmknts befork Jddombnt : May be issued during long vacation . . May be servecl by bailiff out of district Execution against absentees cannot issue durint( year on Commissioners' Court may issue Simple : May issue in certain oases Affidavit for Judge's order requisite if claim be for dam- ages unliquidated Writ ^ Endorsement of Issue, form, and attestation of May be issued for S.C. by Clerk of C.C, who may receive affidavit Addressed to sheriff or bailiff if issued by clerk of CO Clerk of C. C. acts as officer of S. C. . . Seizure effected as on executions May be made in another district Warrant may be issued by Commissioner . . ! Form of I Form of affidavit j Effects seized can only be detained 12 days . . Transmission to S. G. or C. C. of certificate of proceedings, etc Bailiff must make return and deliver effects to sheriff Officer may demand prepayment of costs uf safe- keeping And may renew demand, if necessary Return of writ with inventory Service of writ and declaration Appointment of guardian Service of defendant who is absent or conceals himself Defendant may obtain possession of effects within 48 hours on giving security Contestation of . . Proceedings after judgment to bring effects to sale By Oaniishment : May issue in certain cases How effected Wr.i, addressed to sheriff or bailiff "'''ormalities of . . . j^ndorsement of Contents of Service of To obtain default, service must be personal 47 ART. I PAGE. 1 I 17 461 ! 241 552 290 1191 587 834 435 834 406 835 836 837 838 441 442 442 442 839 442 840 443 84U 443 841 443 84) 143 842 443 843 443 444 844 445 845 445 846 445 847 445 848 445 849 445 850 445 851 447 862 447 853 447 864 448 676 306 855 449 856 449 867 , 449 858 ' 449 859 • 450 859 450 614 322 859 450 615 323 859 450 615 323 iS" m 738 INDEX. z' n r Attaghmbntb BBFUBE JuDOMKNT— continued. By Oarnishmeni — contiivued. Answer by defendant Effect of Service un defendant Declaration of garnishee Creditor may be present and question garnishee Taxation of garnishee's expenses, and execu- tion therefor. . Service and execution of judgment Order of priority where several are made on the same garnishee . . If debt be conditional, or not yet due. . Default of garnishee and relief therefrom Judgment on declaration : effect of Orders deposit of titles or sale of effects Distribution of proceeds . . Discharge of garnishee who owes nothing, audi costs ... Where the decliiration is not contested . . j Contestatwn — Service of . . Subject to ordinary rules . . . . | Foreclosure of plaintiff upon his failure to con- test, and relief therefrom . . By defendant In revendwaiion — Who may issue . . Writ, endorsation of Procedure on Defendant may obtain possession of effects And so may plaintiff Inventory of effects may be required before delivery Where neither party applies for them, they re main with the guardian or a sequestrator. . May be sold if perishable . . . . ! By wife demanding separation . . . . I Far rent — Owner or lessor may seize and follow by, recaption effects liable for rent . . Seizure effected as on executions — ofhcers may seize in another district Effects cannot be left with defendant without | security May be joined with action to rescind lease . . ' ART. 864 805 866 867 868 869 869 PAGE. 450 323 450 324 450 323 450 324 450 325 450 326 450 327 450 327 450 328 450 328 450 329 450 333 450 334 450 334 450 450 451 451 451 452 455 455 455 455 870 I 456 871 872 988 873 874 841 875 888 456 456 495 457 458 443 458 464 INDEX. 739 ling, and retocon-| ^^^ 8G5 I "J 866 1 ..| 867 .1 868 .1 869 M 869 .dbeforel ^^^ Iffects 1, they re Bstrator . . 1 follow byj iRceraniay lit without! lease ■ • 451 451 452 455 455 455 455 456 871 872 ' 988 1 873 1 <874 ; I 841 875 888 456 456 495 45V 458 443 458 464 Attachments after Judgment : May be served out of district by bailiff May issue against defendant's property . . (iSee Execution.) Attobnet : . . May represent parties to a suit Who may act in Commissioner's Court as . . Tariff of fees may be made by judges Disavowal of (see Disavowal). Must give notice if desirous of ceasing to represent a party Not bound to reveal what has been told him profes- sionally Change of Proceedings when he ceases to practise If party fails to replace Must notify adversary of his client's death May obtain distraction of costs May represent party on requite civile without new: power . . . . . . I Parties contesting an account must name the same.. | Election of domicile by, in Superior Court . . . . ; in Circuit Court . . . . j in Queen's Bench . . . . ' Power of — Maybe demanded when plaintiff is absent' In improbations . . In recusations . . . . . . . . i In disavowals Required to offer decisory oath . . AtJTHENTic Document : Judgment on, by default . . Denialof Improbation of (see Improbation) Authentication of Registers . . Award of Arbitrators (see Arbitrators) Of amiables Compositeurs (see Arbitration) Bail : Discharge of defendant arrested under ( 'apias In cases of Habeas Corpus . . In appeal Bailiff : Cannot make services when interested in the suit Return of, contents Contestation oi . . Amendment of Incompetency of as a witness . . May serve papers out of district Writs may be addressed to . . 33 V. c. 1 May use necessary force on executions Proceedings of, on execution of writs of possession, ART. 1 tk'.::-. 461 241 663 290 23 27 1203-5 690 29 1 29 192 1 147 201 149 275 179 202-6 149 202-3 149 204 ! 150 436 I 229 482 259 508 ; 276 528 283 35 38 1059 525 1139 560 120 90 161 140 184 146 194 148 444 232 90 70 122 96 159 139 1236 602 •Ml 203 1344 632 824 429 1046 519 1124 551 74 60 78 61 6 807 808 809 810 811 812 813 814 815 816 bl7 818 819 820 821 822 823 824 826 PAOE. 481 482 482 482 514 49 17 i'.93 406 406 418 419 419 420 420 421 421 421 421 432 422 423 423 423 423 424 424 426 426 426 426 426 426 428 428 428 429 429 432 * 941 481 742 INDEX. n ;i Capias ad Rbspondbnd^m — continued. Notice of giving bail required . . Sureties must justify but not on real estate . , Provisional discharge before return uf writ . . Form of bail bond Responsibility of sheriff Assignment of bond Surrender by sureties Written requisition to sheriff necessary Forcible assistance may be had if sureties apprc' hend resistance Action of damages if it issues without probable CAuSO •• •• •• •• •• Causes of Action : Joinder of several Writ or declaration must contain Certificatk : Of opposition to judgni nt being filed Of acte of foreclosure . . Of registrar — form and contents Contestation of, (see Execution) Cebtiorari : Circuit Court has jurisdiction in certain cases No appeal ur review from judgment on . . < When judgments may be revised by Causes giving rise to . . Is granted on motion supported by affidavit Notice of presentation of motion Service of notice suspends proceedings Motion is presented to the court or judge — adverse party may appear and object orally thereto . . Form and contents of writ Endorsation of . . Service and effect of service Duty of those to whom writ is addressed Failure to comply with writ entails imprison- ment . . Appearance of adverse party and inscription for hearing Drafting and service of judgment Does not lie in cases of judgments of the vice-admi ralty court Chalienoe of Array {see Jury) . . Of Jrirors (see Jury) . . Change of Attorney (see Attorney) Charges : Opposition to . . Opposition to secure . . Cheque : Judgment by default on Denial of signature to ABT. PAOI. 826 432 827 432 828 432 433 829 434 830 434 831 434 832 436 833 435 796 405 15 20 50 43 488 265 137 115 700 362 738-9 381 1056 523 1115 542 1234 601 1220 594 1221 596 1222 697 1223 598 1224 598 1225 598 1226 598 1227 598 1228 698 1230 600 1231 600 1232 600 1233 600 1235 601 377 213 382 214 202 149 660 348 669 348 89 70 145 121 INDEX. ^P^ ART. TAOfc 826 432 827 828 829 830 831 832 432 432 433 434 434 434 435 'P'M 833 I 435 ^*^^*' 796 1 405 15 50 20 43 488 i 266 137 IIB 700 362 1738-9 I 381 1056 ■ 1115 1234 523 542 601 1220 594 1221 ■ 1222 1223 1224 adverael terete. 1225 ' 1226 1227 1228 1230 596 597 598 598 598 598 598 598 600 *P™"°il231 600 kion for B-admi- 1232 1233 1235 377 382 202 660 659 600 600 601 213 214 149 348 348 I Oourt for aueas-i 89 ; 70 146 121 Ghicoutimi : Exceptionftl proTisions for Appeals from Cbikf PiiAOK : Of various districts Ghubches : Jurisdiction of 0. C. in suits for the building andj repairing of Jurisdictio.i of Commissioners' ments for . . CiRccr Court : Uluiaate jurisdiction . . Orij^nal jurisdiction . . Evocation from Commissioners' Court Concurrent jurisdiction with S. C. over dacisions of Commissioners' Court and of justices by means of certu)ran Appellate jurisdiction . . . . Proceedings to obtain evcHsation : cases when at lowed Rules of S. C. apply to .... Powers of S. G. and its officers conferred on Clerk may administer oath Commissioners of the S. C. may receive affidavits to be used in C. C Local jurisdiction, and place of holding of . . Costs cannot be greater than if defendant had been summoned before circuit of his own county Designation of . . Suspension of holding . . . . . . 35 V. c. 6 Jurisdiction of circuit for a connty. . Two or more judges may sit simultaneously in sep- arate apartments if .lecessary . . (Ordinary procedure — Summons Delay upon When served in another district In default and ex/)ar^ suits Contestation . . Proof and hearing . . Judgments.. Execution Remedies against judgments Non-appealable cases (see Non-Appbalable Cases).. Suits between lessors and lessees Suits for illegal detention of township lands Appeals from Civn. Status : Registers of Claims : Filing of, to moneys levied AKT. ) 1 / 27 1117 1355 1142 1170 1063 1054 1055 1056 1067 1058 1059 1069 1059 1060 1061 1061 1062 1003 1064 1066 1066 1067 1069 1070 1071 1079 1081 1091 1093 1105 1107 1142 1236 604 PAOR. 17 S8 646 637 661 573 621 621 {,03 523 623 624 625 625 625 52C 526 626 526 527 527 527 628 629 529 530 630 531 532 633 636 636 639 540 661 602 318 u mi' ' 744 INDEX. Clbrk of Ciuouit Court : May order doors, e ., to be forced in oasea of Behure of immo /eablea May iuuo capiat ... Acts in such case as an officer of the S. G May issue simple attachment for S. C. Powers of ... ... Liability in case of failure to transmit record to the Court of Appeals Code : Authentic copies of Proclamation of Act respecting codifying of laws of procedure Diilerence in versions of Coercive Imprisonment (see Imprihonmknt) Collocation and Dihtribdtion (nee Execution) Commencement of Proof in Writing ; AnsTers of party may serve as Commissioners : To receive affidavits, appointment of Powers of as to C. C. . Taking of evidence by consent, before 33 Y. c. 18 May receive affidavit for captaa Warrant of arrest may be granted by Form of Transmissior of proceedings to S. C Warrant of attachment before judgment ii.ay be granted by Form of Transmission of proceedings to 8. C. or C. 0. Commissioners for Takino Evidence : Court may appoint Form of rule appointing Must be sworn Must notify parties May summon and swear witnesses .... May summon parties to answer on /atfo et artielea... Return of proceedings Commissioners Court : When and where held . . May sit during long vacation Guided by Equity Has power to keep order and enforce its decisior.s Recusation of Commissioners... Transmission of case to nearest Court if all thf members are recused Ultimate jurisdiction of Cases where it has no jurisdiction . . Powers as to issuing of writs. . Writs may be executed beyond the limits of the districts Declaration of garnishee how made 37 V. c. 11 AKT. PAOK. 669 303 810 423 811 423 839 442 1069 625 1161 668 26 28 13 3 1361 641 781 400 724 325 261 173 30 30 1060 526 166 807 423 812 423 813 423 815 425 842 443 843 443 845 445 300 187 301 187 302 187 303 187 304 187 306 188 306 188 1183 585 1 17 1183 585 1184 685 1186 685 1187 585 1188 686 1189 6t? 1191 587 il»2 587 688 INDEX. 745 ART. PAOB. of 669 810 811 839 1069 303 423 423 442 625 the 1161 568 26 1361 781 724 28 13 3 641 400 325 251 173 B. 18 30 1060 807 812 813 815 h»y ^1 c. 0. rticlM... 842 843 845 300 301 302 303 304 305 306 1183 1 1183 lecisior..! 1184 30 526 166 423 423 423 425 443 443 446 187 187 187 187 187 188 188 585 17 585 585 585 ftll th»l U of the 1187 llb8 1189 1191 of lhe\ . c. 11' 585 586 btl 587 587 588 Cohmibhiunbrh' 0>VHX—euntiniteil. '^"^" Minora may aue for wages in . . . . 1 19:i 588 Delays upon ■ummona . . 1194 688 Coutenta and form of writ of aummons 1196 689 Ordinary writa may be served ' y a hailitf or militia aergeant 1196 589 Attachments can be served by a bailiff only . . 1197 589 Evocation to C. C. in certain cases 1198 589 Improbation of an Act has the effect uf an evocation 1 UK) 589 Transmission of record in such cases 1200 589 Failure to give security in case of impmbntion . . 1291 590 Hearing of case after evocation 1002 590 Who may act as attorney before 2013 590 Pimishment of parties receiving fees for acting as attorneys other than advocates . . 1204 5iK) Clerk cannot act as attorney 1205 600 Hearing of case 1206 590 Reference of case to arbitrators . . . . 1207 501 No written pleadings necessary 1208 501 Oral testimony received in all cases, competency and sufficiency of witnesses 1209 591 Court may compel attendance of witnesses. . . . 1210 591 Condemnation to costs .. .. .. ..1211 591 Execution of judgments . . . . . . . . 1212 592 Opposition to ' ..1213 592 Hearing of 1214 592 Emoluments of clerk, etc. 1215 592 Revision of judgments by certiorari . . . . . . 1220 594 COMHISMIONERS : For affixing seals 1280 618 COMMISSIoy-RoOATOIBE : May issue in certain cases 307 188 When application must be made for . . . . 308 188 Choosing of commissioners . . 309 180 Court fixes number .. .. 310 189 Swearing of witnesses 310 189 Interrogatories must accompany 311 190 And instructions to guide commissioners . . . . 312 190 R«tum of 313 I 190 Party obtaining must see to return 314 { 190 Where both apply for . . . . 316 190 Eflfect of failure to return ."-16 190 In jury trials 402 , 218 COMM0NIOAT1OM : | Of minutes by notary, obligatory 1 245 606 Community : Right of wife demanding separation, to accept on renounce i 979 493 Who may demand and take part in inventory of . . j 1 804 623 OoMPAinr (see Cobfokation). ■ Compensation : Of costs 478 249 May be ordered on incidental demand .. ..' 151 134 74C INDEX. CoMPKTRNtrr : Of witncsMB (nee Witnrmh). OoMrLAiirr : A{{ainst usurpation of public office . . CoMPCLMORY EXIOOTION (««« KxRUUTION). Partition (m« Partition). CoifOLlTHIOIfB ! How atat«d Court cnnnot go beyond CowrEHflioir OP Judumbnt (tee Jcdgment) GoNPiRMATioN OP Titlb : Mav be obtained in certain cases Lodging of title, notice to that effect, and calling in of creditors Publication of notice Form of . . Where proceedings are had in cases of Immoveables by fiction . . Presenting of applioa/on Certificate of registrar >o accompany application Who should file oppositi^ins . . Who need not do so . . Bidding . . Outbidding Applicant may retain property at the amount of the highest bid Fixing of price in default of outbidding Deposit of price Appointment of experts to determine value of pro perty Excess of value to be deposited Certain provisions not to apply to public expropri priations . . Judgment May be rendered subject to charges Registration of judgment Distribution of price deposited Meaning of word " Hypothec" CONQE-DEPAnT : How obtained . . In appeal : . Consorts (see Husband and Wipe). Contempt op Court : •■ By disturbing, &c. , sittings . . By non-compliance with writ of Habeas Corpus Contestation : Upon the merits («ee Pleas) Of acc(»mt rendered Delays may be extended for .... Default of filing, and its results Of oppoaitiona to seizures of moveables, subject to ordinary rules AKT. 1016 20 17 04 949 950 961-2 953 054 956 967 968 959 960 961 962 963 964 965 960 967 968 970 969 971 82 1129 7-8 1044 136 527 627 630 PAOI. 601 24 32 73 484 484 485-f all papers filed must be servud on opposite party! 462 Of writ and declaration corrected, may bo served . . 118 Of authentic act may be deposited in certain cnses to take the place of a lost original . . 1252 Coroner: If sheriff be interested, writs are served by . . 466 Must keep a register of deeds 1243 Corporate Office : Usurpation of {see Quo Warranto) . . 1016 Corporations : Actions by . . . . . . . . . . 14 Plead in corporate name . . 19 How indicated in writ. . 49 How served with summons , . 61-3 Mode of answering /aifo et articles . . . . . . 224 And decisory oath 446 Peremption takes place against . . 456 Declaration as garnishee by . . . . 617 Seizure of shares in {see Execution). . . . . 666 When a mandamus may issue against . . 1022 Foreign, how served . . . . . . 64 May sue here 14 Illegally formed, or violating or exceeding their powers: Duty of the Attorney-General to prosecute . . 997 A special information to precede summons . . 998 Writ of summons, — service of . . 999 Delay upon summons . . 1000 Appearance by defendant . . 1001 Special pleas, delay to file 1002 Proof 1003 Rebuttal, and hearing on the meritb . . ' 1004 Extension of delays ' 1005 FAUK (320 1330 382 382 383 383 384 384 385 386 386 428 448 228 (287 )288 572 400 241 89 607 244 606 501 20 23 41 52-3 158 232 237 324 302 504 64 20 497 498 499 499 499 499 499 499 60a 74H INDKX. Iff'' OoHPoKATioNH — eontinwd. IVulimiiwry pleaa, aiid dennirrum may >>•) Hlud 0(mU on juditment Jud|(inent — nAming of nurator Duties of curator. Notice of his appointment Diath jution of proceeds of sale Bale of immoveable property. . Effecta of sale by curator Curator must account . . OOHTH : On declinatory exception discretionary Security for may be demanded Application for Default to furnish When party is forced to plead to merits after filing a preliminary exception . . When exhibits are not filed with articulations Where facts denied by articulations are proved Where no articulations aro filed Special application in such case to obtain , . Court adjudges . . Jury cannot pronounce on . . Of faita et articles Where party answers after being in default Arbitrators cannot award Must be paid on filing discontinuance On peremption . . Of service of papers out of district . . Losing party pays Taxatioti of Revision of does not delay execution . . Of witnesses summoned from beyond jurisdiction. Where defendant or witness is summoned out ( Province . . Distraction of . . On requite civile On tender and deposit . . On uncontested opposition to a seizure of moveables Of sale of moveables, taxation of Ranking of On contesting garnishee's declaration Sheriff may retain, out of moneys levied . . On opposition for payment . . Order of collocation . . On contestation of report of distribution . . On sub-collocation In actions to obtain partition . . In appeal . . In Commissioners' Court In certiorari . . •Security on appeal from C. 0. to be given for .\HT. PAOB. . llXMi 500 . 1007 600 . 1U08 600 . 1000 500 . 1010 501 101 1 601 .'1012-3 501 . 1014 601 . 1016 501 115 HI . 128 l>7 . 120 102 120 102 ! 132 103 213 153 . 214 153 . 215 163 218 154 . 211» 154 . 410 222 . 232 163 . 225 158 343 201 460 233 460 241 461 241 . 478 249 479 267 479 267 . 480 < 269 . 481 269 482 259 . 609 276 644 286 8 586 310 600 316 . 606 319 . 631 334 . 705 367 . 721 376 . 728 376 . 74.5 384 . 765 391 . 918 474 . 1175 375 . 1211 691 . 123:i 600 . 1143 564 INDEX. 140 KMNl 1007 1008 10(W 1010 1011 noo b0«) &00 500 r»oi 601 loia-a Boi 1014 1 wn 1015 1 601 U8 128 120 120 132 213 214 216 218 I 21U I 410 232 225 I 343 I 450 I 460 I 401 ; 478 1 479 479 480 81 \n 102 102 103 163 163 163 154 154 222 163 158 201 233 241 241 249 267 257 259 ea 481 482 609 544 586 600 606 631 706 721 72H 745 755 918 1175 1211 123:> 1143 259 259 276 286 310 316 319 334 367 376 376 384 391 474 375 591 600 , 664 Council : .. Appeal u> PriTy Familv, when nuoesMrj How convened and oompowd Diligence in ■umiuonini; rolativea iiiuat be ihown ' Relatioim and frienda must bo swurn . . Signature of minutei of meeting Jurisdiction of Courts and Judges in matters re- quiring advice of Application must remain of record Powers of prothonotary . . Review of decisions , , Courts ; Regulations cunceming their sittings And the maintenance of o.der thereat May pronounce orders, etc . . May ru(|uire and adminintor oath Cannot udjiulicato beyond conclusions Jurisdiction of rafioiie {oci May order extraordinary investigation May order proof to be taken elsewhere before a jadge Orobh-Exahination of witnesses (see Evidbncb). In exparte cases Crown : Preference of, on proceeds of sale of moveables Appeal in suits relating to fees, &c., due the CUHATOU : Pleads in his own name Must take oath that he will do his duty Appointment to S^irrender, — powers and duties To abaruionment of property Notice of appointment . . Administers property Rights of . . May be imprisoned in default of paying bal- ance of account To dissolved corporation Appointment of . . Duties of . . Notice of appointment . . Distribution of moneys . . 8ale of immoveables if any debts are due . , Sale of immoveables if no debts are due Effects of Sale , Must account To absentees, emancipated minors, interdicted persons appointment of . . Family council's advice necessary . . Prothonotary may appoint Must be present at removal of seals . . ART. FAOB. 1178 677 1266 (MM 1267 •WW 1268 6(".» 1269 (KtO 1260 60'.) 1261 (K)0 1338 631 13:<<.> o:n 1340 (-»:ii I 17 4-rt 18-10 9 19 11 20 17 22 :i4-42 34-39 321 193 241 317 )607 1 611 1142 19 1266 637 768 770 771 772 783 1008 12(i4 1009 1010 1011 1012 1013 1014 1015 1262 1256 1339 1299 168 191 319 320 561 23 610 2^4 395 397 398 398 401 500 610 500 501 501 501 501 601 501 610 608 631 622 760 INDEX. CuRATOB — cmiti/mied. ABT. page. Appeals may be instituted by person gui j%iria with- out the aid of a Curator, though he may have been cUieiU jwria during the pendency of the case in the Court below 1154 569 To substitutea . . 1266 608 To vacant siuxesaiona, appointment of 1332 630 Advice of creditors, &o., taken 1333 630 Duties of 1334 630 Cannot sell immoveables 1335 630 Must render an account 1336 630 Must be named where beneficiary heir has a claim against the succession 1326 628 Damages : For proceeding without probable cause against de- fendant 796 405 Capias for unliquidated 801 419 Attachment before judgment for unliquidated 835 441 Arising from the illegal detention of township lands 1108 540 Caused by animals may be recovered before justices 1216 693 Witness neglecting to appear, liable for 249 172 Trial by jury in actions for 348 203 Judgments must contain a liquidation of . . 471 247 Costs awarded on judgments for 478 249 Deaf Mutes : Evidence may be given by 261 175 Death : Of party to a suit, (see Reprise d' Instance) . . 434 228 Judgment cannot be stayed by 468 245 Of plaintiff during execution . . . . . . i . 547 288 Of defendant 546 287 Of attorney during suit 200 149 Of parties in appeal . . 1155 569 Registration of 1236 602 Debt : Creditor cannot divide 15 20 Deoisoby Oath : Court may order it to be taken elsewhere before a judge 241 168 Party whose case is not proved may offer 443 231 Special power of attorney required . . 444 232 Offer must be in writing 444 232 Service of rule . . . . 445 232 Default or refusal to answer . . 446 232 Offered to corporations 446 232 Reference back to party offering 447 232 Declabation : Must set forth the cause of action . . 50 43 And the object of the demand 52 46 May be amended ( 53 )117 47 88 Corrected copy must be supplied 118 89 INDEX. Wi ABT. PAGE. with- havel f the 1164 1266 1332 1333 1334 1336 1336 669 608 630 630 630 630 630 claim 1326 628 nat de , ■ 796 801 ;d ..1 835 p lands 1108 iustices 1216 * ' 249 348 471 478 406 419 441 640 693 172 203 247 249 261 176 434 468 647 646 200 1156 1236 15 228 245 288 287 149 669 602 20 .xu« - .^^^ 168 443 231 444 232 444 232 446 232 446 232 ■. 446 232 . . 447 232 50 43 62 46 53 47 88 .. .. 118 89 Declaration — continued, Ofjvdge recused (see Reouhation) Of gamiahee to be made at prothonotary's office When it must be made . . Contentaof Relief from default to make Effect of judgment Contestation of Procedure on By head of department where salary of public servant has been seized 38 Y. c. 12 Of abandonment of property . . Service of, in capias . . In attachments before judgments Demurrer to . . Declinatory Exceptions (see Exceptions) Dbfactlt : Against defendant In the Circuit Court appealable Non-appealable Relief from Judgment on notes, &c. , by . . On authentic deeds On verbal agreements Procedure to obtain Plaintiff may renounce . . In the Circuit Court Execution against absentee of To answer faits et articles 'Co proceed at enqufite To appear at jury trial Actions by — evidence taken before Commissioner No notice required in Revision of judgments by Putting in (see Tender) Of garnishee to declare — relief therefrom In actions between lessors and lessees Defendant : Description of in writ . . Summons of (see Summons) . . Delay : Runs on dies-non On summons May be extended To account To plead after amendment After demand of security . . 35 V. , c. 6 How reckoned in matters of pleading For filing declaration of abandonment of property In non-cuntentious proceedings ART. 179 617 618 619 624 625 626 627 764 804 851 147 113 86 1069 1099 87-8 89 90 91 92 93 1099 562 225 ( 283 ( 299 394 239 465 483 638 624 891 49 34 PAOI. 145 324 325 325 328 329 329 330 331 393 421 446 125 80 69 530 637 69 70 70 70 72 73 537 290 158 182 186 216 166 243 262 285 328 465 41 34 i 24 27 463 242 75 60 141 119 522 281 142 120 98 463 242 766 394 1337 631 it' H> 752 INDEX. .^ Demand of Plea : ART. PAOK. Where preliminary pleas are filed 131 103 Effect of 137 116 In appealable cases 0. 1070 531 Unnecessary in non-appealable suits. . 1099 337 Of rrahons uf appeal • •• ■ •• 1133 559 Of answsbs to . . 1135 560 Demurrer : May be pleaded in certain cases ... 147 125 Inscription in 0. 0. on merits and . . 1077 532 To writ of appeal 1130 568 Denial : Of documents must be supported by affidavit 145 121 Deposit : Must accompany preliminary pleas . . 112 80 And motion for jur^ trial . . 365 210 And oppositions to judgments And bids at sheriffs' sales 486 264 677-81 364 In review . . 497 270 Of judgments on capias . . 823 429 May be required by arbitrators, etc. . 344 2oy < )f copy of authentic document which has been lost 1252 607 Defohitary (see Guardian, Sequestrator^ • • ■ • 560 299 Deposition of Witnesses : Swearing of witness • • • ■ 256 175 Examination on voir dire . . ( 259 |268 2C1 176 177 Of deaf mutes ■-■■ fl 176 At length— opening • • . • 288 184 Contents.. .. • ■ • . 289 184 Noting of objections • • • • 290 184 Closing . . . . • • a • 293 185 Additions to . . , 294 185 By stenography 35 V. c. 6 217 Before Commissioner, and at any time by con- sent 33 V. c. 18 166 Notes of evidence by Judge . . 265 176 Detention : Of township lands illegally . . 1107 540 Differences In the versions of the Code . . 1361 641 Dilatory Exceptions (see Exceptions) . . 120 30 Disavowal : May be filed in certain cases. . 192 147 Before or after judgment 193 148 By whom it may be made 194 148 Power of attorney required to file . 194 148 How made 195 148 Proceedings must not be delayed 196 148 Suit suspended 197 148 Procedure same as in ordinary suits. . 198 148 Consequences of 199 149 In appeal 1166 572 INDEX. 753 ABT. PAO«- 131 137 1070 1099 1133 1135 103 116 631 537 669 560 147 I 126 1OT7 632 1130 I 658 146 1 121 112 1 80 366 210 486 264 "1677-81 354 ••' 497 1 270 823 344 en lostl 1262 ' 560 429 20'i 607 299 256 J 269 268 , 2C1 288 289 290 293 294 V. c. 6 175 175 177 175 184 184 184 185 186 217 »V con-, , „„ ^- c. 18 IJS ' 266 1 17b 1107 1 640 1361 641 120 I 30 192 193 194 194 196 196 197 198 199 1166 147 148 148 148 148 148 148 148 149 672 Discharge Of party imprisoned, petition . . Grounds for Must be ordered by judge Effect of Of debtor arrested under capiat Of dilibiri in appeal From h3rpothecs (see Confirmation of Title) DiSCONTlNCANCB OF SuiT : During jury trial May be made at any time before judgment How effected . . Costs thereon must be paid before party begins new proceedings In appeal Discussion : Exception of . . Of moveables before sale of immoveables Distraction of Costs : . ■ May be obtained DiBTElBUTION : Of funds levied by sale of moveables (see Execution) Of funds levied by seizure by garnishment . . Of proceeds of sale of immoveables (see Execution)] Of moneys in cases of licitation And of confirmation of title . . Districts : Judicial diatriots of Province. . Documents : Improbation of (see Impr )Bation) . . Inspection of (see Inspect tojj) Hi)W restored when originals are lost Domicile . Election of By advocates In oppositions for payment In oppositions to judgments by defendant And by third parties In oppositions to the seizure of moveables In the Circuit Court Tender at elected Service of summons at Droit de Suite (see Attachment for Rent) . . Ejectment (see Lessors and Lessees) . . Election : Of domicile, none required by creditor in seizure of immoveables (see Domicile) Of officers of a corporation may be ordered Elector : Competent witness in municipal ciises Emancipation : Of minors 48 art. 792 7»3 794 795 819 1171 946 396 460 451 453 1167 130 654 482 601 630 724 939 969 1355 159 1245 1252 84 85 722 485 511 583 1069 640 57 873 887 Appeal : Writ of • ■ • ■ 1114 642 Tribunal before which it may be brought . . 1117 646 Delay for proceeding . . • • • > 1118 646 Writ • • • • 1121 648 Return 1122 650 Service . . 1123 651 Security • • • • 1124 661 Failure to niiike return . . • • • • 1127 656 Cross proceedings 1132 669 Assignment of error * • • • 1133 559 Failure to produce • • • • 1137 560 Answers thereto 1136 660 Failure to produce • • 1138 660 Delays may be extended . . • • 1136 660 Factums . . 1140 561 Evidence ; Before arbitrators, accountants, &c. . . 340-1 200 Commisaaire-enqueteur . . ■ • • ■ 300 187 By Commmion Rogatoire • • ■ • 307 188 Before viewers, experts • ■ > • 335 199 Jury • • • • 397 217 By stenography 35 V. c. 6 217 Before prothonotary . . . ■ 285 183 Before Commissioners by consent . . 33 V. c. 18 166 Of consorts 35 V. c. 6 174 Deaf mutes.. . . 261 176 Bailiffs who have served writs . . • • • • 262 175 party does not avail himself, but may be used against him . • ■ • • 251 173 in exparte cases . . • ■ ■ • 317 191 Amendments allowed . . . . 320 192 Extraordinary investigation may be '> rdered 321 193 Of Witnesses ; must be in writing . . • > ■ • 236 166 Otherwise no appeal on facts . . . . 1142 661 About to depart . . • • • • 240 167 May be ordered elsewhere before a Judge . . 241 168 Swearing or affirmation . . . • (255 (305 176 188 Refusal to swear . . .. 257 176 Punishment . . 277 181 Cannot claim expenses . . • ■ a • 258 176 May not withdraw ... 278 181 . (259 175 Voir dire • ■ •• . ^267 177 (268 177 Form of oath may be changed . . 1 256 176 Exclusion of other witnesses . . . 254 174 INDEX. 755 ART 1 **«■• 234 I 164 295 1 186 1114 1117 1118 1121 1122 1 1 1123 j 1124 1127 ; 1132 , 1133 ' I 1137 1135 '■ 1138 .i 1136 .1 1140 542 546 546 548 660 651 661 666 669 659 660 660 660 660 I 56L 340-1 200 300 1 187 . c. 6' _ .1 c. 18 c. 6 used 307 335 397 285 261 262 188 199 217 217 183 166 174 175 176 251 317 32C 321 236 1142 240 241 1 \ 256 •1)305 .1 267 .! 277 i 258 .1 278 ' ( 259 ..!<267 1(268 ..' 256 ...1 254 173 191 192 193 166 661 167 168 175 188 176 181 176 181 175 177 177 175 174 EviPBNCE — continued. Voir dire — '.ontiniied. Need not answer certain questions Examination of Leading questions ... Cross-examination Re-examination .. .. Counter proof Failure of party to proceed Rooms assigned for enqnete ... Judge takes notes if required {repe(ded) Proof and hearing Special days for Objections to Prothonotary may preside in certain cases... Objections noted in such case ... Admissions taken down Inscription .. In Circuit Court . . Postponement ... In Commissioners' Courts In lessors and lessees coses In suits concerning corporations (See Proof.) Evocation : From Commissioners' to C. C. From Circuit to Superior Court luiprobation in Commissioners' Court necessitates. From other minor courts .. Examination : Of witness ... On the contestation of a report of collocation Examiner appointed by Court (see Commission kks) Exceptions, Preliminary : Delay for tiling Where security for costs is required. . . Delay for answering Delay for further pleadings Foreclosure if pleadings be not filed Deposit must accompany Defl'">atory c')urt may suggest Costs on ... . . To the form Amendment of writ NVaived by appearance . . Dilatory ... Galling in warrant irs ART. PAOE. 274-5 179 263 176 270 177 271 178 272 178 282 298 182 ... 186 <283 I 299 182 ... 186 ... 286 183 ... 266 176 .. 1 243 168 . J 243 168 ! j 263 176 •■• { 290 184 ... 284 183 ... 284 183 ... 266 176 234 164 1071 531 216 164 1209 591 8% 465 1003 499 1 1055 523 1198 589 1058 524 BS. 1199 589 1220 694 263 176 741 382 300 187 107 78 . . • 128 97 .. 109 80 110 80 111 80 112 80 113 80 • •• 114 81 116 81 * • • 116 81 117 88 119 89 120 90 122 96 756 INDBX 1'-*% \ Exceptions, Prbliminaby— con 319 S 607 1 319 / 611 320 . 608 320 609 320 610 320 612 321 632 334 632 334 633 335 634 336 m INDEX. Ex EcrnoN— continmd. Seizure of Imuoveablbs — catitimied. Rfsideiit bailiff to be employed in certain cases .... Where property lies in several districts Debtor is asked to point out his property Procis-verbal — Contents None retiuired in certain cases. ' ' Elected uomicile of creditor ... ' Mention of ground rents and charges Oppositions for certain rents do not retard sole — are returned by sheriff Sheriff cannot seize property already seized — subse- quent writs Continuance of proceedings for second creditor if first discontinue . . ' ' Alienation by debtor of property seized Debtor remains in possession until adjudication — appointment of sequestrator Deterioration of property punisliable Prepayment of certain charges tn sheriff Advertisement of sale . . Form Notice to hypothecary creditors . . 41 V. c. 15 Publication at church doors Continues notwithstanding opposition . . Stayed by judge's order or opposition (see Opposi- tion) Suspension of sale— exceptions Return of writ on filing of opposition Proceedings after judgment on opposition — Vendi- tioni exponas . . Contents of venditioni exponas . . Publication Staying of sale Bidding and Sale — Bids in writing in sheriff's oflice. Affidavit should accompany bids by creditor.... ' Afiidavit and security may be required from one who is not a creditor Form of bid Endorsation and return of List furnished officer selling Sale —place of . . Sale may not take place on Sunday Procedure . . Declaration by bidders . . Conditions of sale Who may not bid Bids by proxy Deposit with bid required in some cases / Failure to make deposit May be dispensed with ART. 635 336 636 336 637 336 638 336 641 337 639 337 640 337 640 642 PAOK. 337 3? 643 338 644 338 646 339 646 339 647 339 648 339 649 340 341 660 342 653 344 651 343 653 344 665 345 662 349 663 349 664 350 664 360 665 351 666 361 667 351 668 362 '369 352 670 352 671 362 672 363 673 363 674 353 675 353 676 303 677 364 678 364 680 354 682 354 681 364 *^*\ INDEX. 760 ART. PAaE. Be- •Vf a — 1 15 P08I- 636 636 637 638 641 639 640 640 642 643 644 645 646 (547 648 649 I 660 1 653 661 653 655 335 335 336 336 337 337 337 337 3? '.}idi- 662 1 663 1 664 ! 664 1 Iflice.i 666 , fr ...| 666 ; ^'""' 667 i 668 <)69 670 671 672 673 674 675 676 677 J 678 )680 1 682 ' 681 338 338 339 339 339 339 340 341 342 344 343 344 345 349 349 360 360 361 361 351 352 352 362 352 363 363 353 9S» 353 354 354 354 364 364 ExRC'UTioN — continmd. Srizukk or Immovrableb — continued. RefundtMl after sale Duration of bidding — all hids to be recuived . . Adjudication to highest bidder Duty of bidder by proxy after sale Obligation of purotuwer . . May Rometimes ret&in price . . Deed of sale- -contents . . Resale for false bidditig : — petition . . Who may file Procedure summary Purchaser may set up the nullity of the sale . . < Where purchaser fails to pay moneys after re- ' port of distribution Liability of false bidder . . May, by payment, prevent Insufficiency of price realized . . Imprisonment Vend. ex. necessary to effect Return of Writ — Form Certificate of hypothecs must accompany If Sheriff cannot obtain it in time Meaning of " Hypothec " Form Duty of registrar if books do not supply infor- mation . . And where property formed part of another div- ision Contestation of . . Governor may change form of certificate None required on a folle eii^hire if one vas obtained at first sale . . Registrar is an officer of the court Retention of fees out of moneys by sheriff . . Effect of sale- -not perfect until payment, conveys ownership Purchaser takes property in it^ actual condition No warranty, all rights conveyed Servitudes are not discharged thereby . . Nor certain Seigniorial hypothecs, emphyteu- sis, dower, substitutions All other real rights discharged ^ Proceedings to put purchaser in posses-sion . . W^rit of possession Vacating sheriff's sale . . Petition Delays upon . . J Nullity may be invoked by fanx enchirisaevr . . I Collocation and distnbution — delay for preparing! scheme . . Contents . . ABT. PAOB. 4Ui3 366 684 355 685 355 686 365 687 366 688 35 Writ .. May issue immediately without disciisaion of move ables in some cast'H Procedure same as in S. C. . . Return of writ to S. C. Of judgments in appeal . . Prevented by appeal to Her Majesty III the Commissionors' Court Of judgments of separation Executors : Must be present at removal of seals, aixl makiniL; of inventory May demand the aiRxing uf aeiils Or making of inventory Exemption : From acting as juror . . From seizure — moveables Immoveables From arrest Exhibits : Must be tiled with return And not afterwards, without notice . . Filing of private writings Cannot be .emoved from office Must be returned by those having possession them Plaintiff cannot proceed until he files Are common property Copies may be taken of Cannot be filed in blank Accompany intervention Or articulations of facts Consequences if not filed with articulations In the Circuit Court . . ExPARTE : when plaintiff may proceed . . Judgment on notes, &c. On authentic deeds AkT. PAoa 1081 533 I(t82 U)84 1102 KMo 1()H6 1087 1088-9 lUOO 117t 1179 I 1212 : 981 1298 1281 1304 J 360 / 376 102 < 103 ( 141 104 105 106 155 210 213 1069 j 8(i U43 89 90 534 r>.')4 534 5.38 534 5:vi nM 535 536 676 581 592 4«3 622 618 623 208 213 ( 656 295 <7-8 298 (028 330 632 3134 805 421 99 75 106 78 100 77 101 77 77 77 119 78 78 78 i3e 152 163 530 69 120 70 7a h ^^ if. 762 INDEX. EXPARTB— f(illn verbal agreeineiita Pri)oedure to obtain Plaiii*'ff may ronounoo . 0|)|KMiitioiu to Iiinoriptiun fur proof . . Notice Evidunoe in cases Kuinains of record Cross-examination by defendant In jury trials \\\ lessors and lessees' oases . . In the Circuit Court . . Hearing in appeal EXPBRTH AND ViKWEKH: Appointment Three must act unless by oonHeut Entry of consent Nommation of .. Recusation Orounds for Proceedinifs Neglect to be sworn or to act Oath in writing Before whom Receives necessary papers Fixing of time and place and notifying parties of meetings Parties must be heard Examination of witnesses Report Must be made on day fixed — contents Delaying or refusing to file Need not be accepted Motion to adopt . . Reception thereof . . May demand remuneration . . Named to liquidate judgment ordering restitution of rents Or to value immoveables in order to facilitate the preparation of a report of distribution In cases of licitation and partition . . And of confirmation of title . . In cases of the sale of real property belonging to minors . . Appointment Duties Report Failure to agree Submitted to the family council AHT. 01 92 93 484 \ 2311 1317 317 317 318 317 394 892 toon 1140 rAOi. 70 72 73 202 10(1 VM 101 101 101 101 210 405 530 501 322 103 323 104 324 IIW 325-0 104-5 320 I'.»5 327 105 32H 105 320 105 330 105 331 107 332 107 333 107 334 108 336 190 330 100 337 109 338 200 330 200 345 202 340 203 344 202 475 248 736 380 022 475 964 400 1268 611 1260 611 1270 613 1270 613 1271 614 1272 614 ■■■» INDEX. 763 AHT. 01 92 o:» 4H4 123U I 317 317 317 318 317 I 304 892 I ioe9 1140 PAOI. 70 72 73 2«2 l«m 191 191 191 191 191 216 465 630 661 irtiea of 322 323 324 326-0 326 327 32H 329 ;i:jo 3:u 332 333 , 334 336 336 337 338 339 345 346 344 193 194 194 194-5 I'.lo l'.»5 195 195 195 197 197 , 197 ! 19« 1 199 I 199 199 200 200 •J02 203 202 ttitution ftte the' [nging to 475 I 248 736 I 380 922 475 964 I 490 1268 611 1 1269 611 1 . 1270 613 1 . 1270 613 1 . 1271 614 I . 1272 614 1 Factum : 111 jury triala In api'oni — dulay Utiles of Fnctioo . . From Circuit Court Faith kt Aktiolbh : Party may bu exaroinud during trial on I'iiui iH>ce Huninioning of party . . Hurvice of rule . . Appearance in iKtrsoii Anttwers by corporations Consequences of default Ktilief from default •Fudge deterniin*'^ pertinency of Refusal to answer Form of rule — and of answers When taken pro cunfeasu . . < Party may refuse to put, or to avail himself of Divisibility of answers Expenses taxed Party served may di-mand . Hut cannot refuse to answer if in Court Taxation of and execution for . Court may order examination to be taken elsewhere before a judge Before Cummissaire EnquSteur In jury-trials Falsk Hiddinu (see Execution) . . Family Council (see Council) Febs : Promulgation of tariffs 111 the Circuit Court Must be paid before revocation of manditt will he received Experts, etc., may demand that report be not opened until after payment of . . •Jury, before rendering verdict, may demand Punishment of any one other than an advocate re- ceiving fees in the Commissioners' Court Actions for those due Crown subject to appeal to Queen's Bench And to the Privy Council And may be evoked Fiat: For summons . . Folle-Enchkre (see Execution) Foreclosure : On preliminary pleas . . Where defendant seeks to call in warrantors AM. PAOI. 303 216 1140 661 727 1162 668 221 166 226 160 222 166 223 166 224 16H 224 168 22.-. 168 226 168 225 158 2'M 160 227 161 225-11 16H 229 161 305 188 2:10 161 231 161 232 163 233 163 233 163 23:{ 163 241 168 305 188 402 218 «1M) 357 1266 608 29 29 1177 676 206 150 344 202 416-7 221 1204 590 1142 661 117H 677 1054 621 44 40 690 357 111 80 134 104 764 INDEX. J I I II y ■,■' I t.i F0HRCLO8CRK — continiied. From pleading to merits, after filing preliminary pleas From pleading to merits Whi>rc exhibits are not filed . . Complete issues. . At enquete Foreign CoRPOiuTioNa (see Gorporationh) Form : . • Exception to the {see Exception) No particular form required in pleading (No. 27) Of affidavit of service in Upper Canada (No. 28) Of plainti£f, for judgment by default 29) Of one who is not the plaintiff 30) Oath to be administered to experts 31) Certificate thereof . . 32) Oath administered to witnesses by experts (No. 33) AfiSdavit of an opposant to judgment (No. 34) Advertisement of sheriffs sale . . (No. 35) Writ of summons in the Circuit Court (No. 36) Certificate of registrar (No. 37) Affidavit of witness attesting truth of facts contained in registrar's certificate (No. 38) Order to creditor to answer contestation of his claim (No. 39) Demand of statement of abandonment of property (No. 40) Notice of application for appointment of a curator . . (No. 41) Notice of appointment of curator (No. 42) Affidavit for warrant of arrest by Commia- sioiier .. (No. 43) Warrant of arrest (No. 44) Bail-bond to sheriflF (No. 45) Affidavit to obtain warrant of attachment. (No. 46) Warrant of attachment (No. 47) Notice of petition of sale of immoveables of which the owners are unknown ^No. 48) Writ for the sale of such immoveables (No. 49) Appearance in such case (No. 50) Confirmation of title (No. 51) Notice in cases of licitation (No. 52) Nomination of experts in case of the sale of immoveables belonging to minors (No. 53) Nomination of experts by a notary in like cases (No. 54) Oath of experts iNo. 55) Report of experts No. 56) Application for homologation of report Those connected with the Civil Code are in the Ap pendix to this volume ART. PAOB. 131 103 37-40 116 141 119 148 131 283 182 299 186 14 20 116 81 20 24 144 120 69 57 91 71 91 71 330 196 330 190 334 198 480 264 649 340 1065 528 700 363 76(5 395 768 396 77U 397 812 424 812 424 828 433 843 443 843 444 903 467 905 469 908 470 950 929 1269 1270 1270 1272 485 477 1269 611 612 ()13 613 4)14 7()9 INDEX. 765 ART. 1 PAOK, 1 trypleas 131 J 103 1 ..137-40 115 1 . . 141 119 I . . 148 131 I ( 283 \ 299 182 1 186 1 . . 14 1 20 1 116 81 •• 'i 20 24 144 1 120 anada . . 69 67 iiilt 91 i 71 91 71 ts 330 196 1 330 196 IT* "^ '^ 649 340 Court .. 1065 628 .700 363 th'of facts .. 701 360 mtestation .. 761! 387 lonment of . . 760 395 intment of 768 396 or" .. 77U 397 yCommis- ' 812 424 812 i 424 828 i 433 ttacliment. 843 443 ... 843 444 oveables of 903 467 veabluB . ■ ■ 905 i 469 908 : 470 950 48.i 929 i 477 of the sale 1269 611 tary in like 1 ! 1269 ' 612 .. . 1270 613 ".".. 1270 i 613 I report . 1272 \ 614 B in the Ap * i 709 , abt. FAOI. FoKMA Paupkris C^M In FoKMA Pauperis) 31 32 FUTORE RiOHTS : if vocation of auits affecting 1068 624 Appeal to Q. B. therein 1142 561 And to the P. C 1178 677 Garnishee («ee Garnishment). Garnishment : Attachment before judgment (see Attachment) ... 866 449 Seizure by — when adopted 653 612 290 321 Form of writ 613-14 322 Service 615 323 No condemnation unless service is personal 616 323 Answer by defendant 616 323 Effect of. 616 324 Declaration — how made 617 324 At what time 618 325 Contents of 619 326 Presence of creditor at 619 326 Objections to questions by creditors at 619 326 Judgment if uncontested 621 327 Service and execution of 622 327 Expenses of garnishee — taxatior — execution there- for 620 326 Preference where several seizures are made 622 327 Where the garnishee only owes conditionally Default to declare— relief therefrom. . 623 328 624 328 Effect, of judgment 625 329 Contestation of declaration 626 329 Filing of — delay . . 626 329 Procedure upon . . 627 330 Seizure of salaries of public oflicials . . 38 V. v,. 12 331 Judgment orders deposit of titles or that movenbles be sold ' 629 333 Distribution of moneys levied 630 334 Discharge of garnishee if he ov^es nothing — costs . . 631 35-1 In the Circuit Court . . 1089 535 Gaspe ; Exceptional provisions for . . 1 \ ^ (27 17 28 Appeals from . . 1117 546 Chi'f-lieu of 1355 637 Guardian : To moveables seized . . 560 25!» Who may and may not be . 5(50 299 Signs procis verbal 560 i 299 Receives triplicate thereof . . 661 i 301 May remove effects or place guards over them : 562 1 30'. Replacement of 562 i 301 Receives notice of sale 571 1 304 Even where things were attached before judgmen L 576 300 766 INDEX. li ■' OuABDiAN — continued. ART. PAOB. In case of aeoond seizure, creditor must name the same 577 306 Must produce effects at salj 590 313 If he fails to do so, may be imprisoned 597 314 Discharge of . . . . 596 314 Taxation of fees . . 600 316 In seizures by garnishment garnishee becomes 616 324 In attachments before judgment 851 447 * 'abeas Corpus : Ad testificandum 253 174 In other than criminal suits — writ -contents — who may apply for 1040 516 Application co le supported by affidsivit 1041 517 Form of writ . . 1042 518 Service and return . . 1043 518 Hule for contempt in case of non-compliance with writ 1044 518 Proof and decision on. . 1045 518 Prisoner may be admitted to bail — security 1046 510 Transmission of papers to Court— decision . . 1047 519 Written issues may be ordered — trial 1048 519 Proceedings to controvert umth of return similar in Q.B. and S.C 1049 519 Costs 1050 519 Renewal of application after refusal 1061 519 Party imprisoned for debt or under process in civil matters cannot be discharged upon 1052 520 Heabino : Notice of inscription . . 462 241 In jury trials . . 403 219 In review . . . . .500 272 In appeal — inscription . . 1141 561 From Circuit Court . . 1162 568 In non-appealable cases, C. C. 1099 637 In appea able cases, C. C 1073 531 In Commissioners' Court 1208 699 Heirs : Attend removal of seals 1298 622 May demand sale of property of succession lin5 626 Under benefit of inventory . . 1321 628 Hoi,iDAY.«, (see Non j jbidical Days) 2 18 Homologation : Of report of arbitrators 347 203 Of collocation and distribution scheme, («ee Execu- tion) 749 38() Husband and Wife : Service of summons in suits against or between . . i 35 )67 38 55 Competent as witnesses 35 v. c. 6 174 Declaration where wife wishes to carry on trade . . 981 493 Separation of property 972 491 From bed and board 985 494 INDEX. 767 ART. I PAOlt. ne the! )B 677 590 597 596 600 616 851 306 313 314 314 316 324 447 253 174 ;S — who ice with) imilar int IS in civil 1040 1041 1042 1043 1044 1045 1046 1047 1 1048 1049 1060 1051 516 617 518 518 518 51b 510 619 619 619 619 619 1052 ' 520 « BXBCU- 462 403 500 , 1141 1152 I 1099 1 1073 i 1208 : ! 1298 ; 1216 I 1321 1 2 j 347 : 749 ! 241 219 272 561 668 537 531 599 622 626 628 18 203 38b iween . . ; 35 V. c. 6j trade . . 35 67 38 55 174 981 i 493 972 491 985 494 Husband and Wife — continued. Entitled to notice of preparing inventory . . And to custody of inventoried effects Hypothecary Recourse : Against immoveables of which the owners are un- certain or unknown, petition tor sale Purport of petition Accompanied by affidavit Proof and notice to answer demand Publication of notice . . Failure of owner to appear, decision and order foi sale . . . . . . . . . . . . j J ud(;ment need not be served Writ of execution — contents Appearance of owner —proceedings t uereaf ter Of several claiming ownership . . Where some of the joint owners only are known, creditor may sue them and proceed against others under preceding ai-ticles Hypothecs : Certificate to be obtained by sherifl'from registrar,! (see Registrar) . . Discharge by confi.Utnued. **^' Judge's order Tec|uired to obliije them in othor oawB— exoeptioiu 1246 Order of inapeotion upon refusal : 1247 Purport of order j 1248 Service ! 1249 Mention thereof in copy granted by Notary . . ', 1250 Non-oomphanoe punished | 1251 Loss of original — deposit of copy . . . . I 1252 Application to compel party holding a copy to de- posit it in like cases . . . . 1263 Service of petition .. .. .. .. 1254 Order of deposit 1265 Interdictbd PEKaoxs : Advice of family council to appoint Curator to . . 1256 Judge's order to sell immoveables of . . 1267 Interest : Order of collocation 734 Interpretation : Of rules of procedure . . . . . . . . . . 21 Of code where a difference exists between the two versions . . . . . . . . . . . . 1361 Interpreter : May be appointed by Court . . . . . . . . 10 iNTERBOaATORIBS : On facts and articles (see Faits et Articles) . . 221 Accompany Commission Hogatoire . . . . . . 311 Intervention : By whom it may be filed . . . . . . . . 154 Procedure to be followed , . . . . . . . 155 Exhibits must accompany . . . . . . 155 Does not stay proceedings unless allowed . . . . 156 Suspends suit if allowed . . . . . . . . 157 Must be answered after service . . . . . . 168 Contestation subject to ordinary rules 158 Of creditor sued for separation of property . . 492 In appeal 1166 Inventory : Benefit of (see Benefit of Inventory) . . . . 1321 Of moveables seized {see Proces-vbrbal) . . . . 559 In attachment by revendication . . . . . . 870 Of successions or community dissolved by death . . 1304 Upon the removal of seals it will be ordered . . 1297 Who may demaid and take part therein . . . . ; 1304 Presence of parties required . . . . . . . . 1305 Choice of notary . . . . . . . . . , 1306 Must be in authentic form 1307 Form and contents . . . . 1308 Recording of protestations . . . . . . . . 1309 Petition to obtain entry of protestations . . . . 1310 Judge may order exclusion of parties having no rights PAOB. 606 607 607 607 607 607 607 607 608 608 608 611 380 25 641 19 155 190 136 136 136 136 137 138 138 975 572 628 298 456 623 621 623 624 624 624 624 026 625 1311 625 i 772 INDEX. Inventory — eontiiMed. By consent sale may be proceeded with at onoe Custody of effects inventoried Provisions applying to all oases where inventory is required — notice of sale Of property belonging to a corporation in liquida- tion Staying of proceedings until delays expire to make Investiqation : Court may order extraordinary Issues : When completed on merits . . On incidental demand On interventions . . On improbation . . On disavowal When preliminary pleas and pleas to merit« are filed — proof had on all And so in jury trials . . Delay to complete In the Circuit Court Joint Stock Company (»ee Corpoeation) Judge : Meaning of the word in the Code His orders muat be obeyed . . May require oath And receive it . . Recusation of {see Recusation^ Evidence taken before (see Evidence^ May extend delay for pleading Sittings of, when there are more than one in a dis' trict Must paraph jud^^ent Judgment may be pronounced in his absence Or after his promotion, &o. . . And so in review . . And in Circuit Court, appealable And non-appealable And in appeal Incompetency of — in review . . In appeal Province of, in jury trials Replaced by prothonotary in vacation At enquete And in non-contentious proceedings ... Judoment : Default and exparte 87-93 Revision of 483 Opposition to 484 In the C. 0. non-appealable ... 1099 art. 1312 1313 1314 100» 120 321 148 163 158 172 198 132 418 139 1070 61 5 6-8 11 \ 30 176 266 141 464 473 469 468 502-4 1080 1094 1170 495 1158 406 466 284 1339 PAOI. 626 626 626 500 90 193 131 135 138 143 148 103 222 118 530 52 18 18-19 20 20 30 143 176 119 243 24? 245 245 273-4 532 536 573 269 670 219 243 183 631 69-73 262 262 537 [^;« INDEX. 773 ABT. 1312 1313 ' 1314 uida-l lOW makel 120 FAOI. 626 626 626 600 90 filed 321 1 193 131 135 138 143 148 103 222 118 530 62 148 153 158 172 198 132 418 139 1070 61 5 i 18 ^-8 18-19 11 I 20 dis- \ 30 176 265 141 464 473 469 468 502-4 1080 1094 1170 495 1158 406 466 284 1339 20 30 143 176 119 243 2*7 245 245 273-4 532 536 573 269 570 219 243 183 631 87-93 169-73 483 I 262 ■.'.1 484 262 ..I 1099 1 537 J u DO M ENT— corUinued. ABT. PAOI. On ounfession 94 73 Acceptance of 96 74 Non-acceptance 97 74 Where there are several defendants 98 76 In Circuit Court 1095 636 On declaration of garnishee 621 327 On report of arbitrators &o 347 203 Ordering restitution of rents &o 475 248 On an account 532 283 Ordering restitution 634 281 Ordering security to be put in 614 280 In hypothecary actions where owner is uncertain . . . 906 469 Of partition of township lands held in oommun ... 910 474 In ictiona en partage 922 475 In lioitations 927 476 En bonuige 942 481 In confirmation of titlo 967 490 In action for separatio.a between consorts 977 492 Oncertiorwri 1232 600 Of non-suit when securiiy for costs is not furnished. 120 90 Motion for, on verdict... 421 222 Inarrestof 424 223 For, non-obstante veredicto or new trial 423 223 By prothonotary in vacation 465 243 By judge promoted &c 470 M46 In the Superior Coui-t 468 245 Cannot be stayed by change of status 468 245 Rendered in open court 469 245 For damages contains a liquidation thereof . . . 471 247 What must be set forth in 472 247 Must be entered into register 473 247 Difference between draft and register 474 247 Need not be served U77 (906 249 469 I Execution of (a6« Execution) 546 287 Revision of 494 266 Appeal from 613 1114 279 642 In the Circuit Court 1079 632 In review 502 273 In ap^oeal 1170 673 In Co,nmisaioner^ Court 1206 690 JUBISDICTION : In personal actions 34 34 In real or mixed actions 37 38 In suits between consorts 35 38 In matters of succession 39 39 In suits for damages against public ofiScers . . 36 38 In suits in warranty and in continuance of suit . . 40 39 Where there are several defendants 38 38 Where immovable is included in several districts . . 41 39 774 INDEX. «i JcMiflOKTioir — eontmiud. ART. rAOi. Where sole judge m lublo to be reouaed . . 42 30 OoiirU may suggest want of 114 81 In suits between lessors and lessees In capias 887 1106 462 639 806 422 Of the Superior Court 28 29 Of Uie Circuit Court {see Circimt Coukt^ . . 1063 621 As to suits concerning township lands 1107 640 As to oppositions to seizures . . 1083 634 Of the Court of Queen's Bench 1114 642 Of Privy Council 1178 677 Of Commiasioners' Courts 1188 686 Of Justices of the Peace 1210 r93 Of Recorder's Court 1217 693 Of Trinity House JuBORB (see Jury). 1218 593 Jury : What cases triable by 348-9 203 Option for trial by 350 206 CompoBition of . . 351 206 Asbignnient of facts 362 206 Statement of facts for Judge 363 206 May be dispensed with . . 354 206 Venue of trial 355-6 206 Prothonotary to prepare list 367 207 Revision thereof . . 361 209 Qualification of jurors 358-9 207-8 Who need not act „„ 360 V. C.13 208 213 Fixing day to strike panel .362 209 Striking panel 367-92 11 Failure of party to attend . . 370 211 Failure of party demanding trial to proceed 371 211 Summons of jurors, in mercantile cases 363 210 De medietate linguae . . . . . . 364 310 venire facias 372 212 Notice to jurors . . , . 373 212 Service of venire facias . . 374 212 Return 375-7 212-8 Motion to fix day for trial 366 210 Formation of junr — challenge of array , Decided by Judge 378 379 213 214 If allowed . . 380 214 Impanelling . . . . .t 381 214 In mercantile cases 382 214 Challenge for cause 382 214 QroundB f or . . 383-5 214-8 Examination of Juror 388 216 Founded on judicial condemnation 389 216 Fining of Jurors {376 |409 213 220 INDEX. 775 ART. 1 FAOl. 42 I 114 ' 887 1106 808 I 28 I 1063 i 1107 I 1083 I 1114 I 1178 1188 1210 1217 1218 39 81 462 639 422 2« 621 640 634 642 677 686 .93 693 693 348-91 203 360 1 206 .1 361 . 352 .1 363 364 206 206 206 206 . 365-6! 206 .. 357 207 361 209 ..i 358-9 207-8 360 I 208 33V.C.131 213 . 362 I 209 . . 367-92 11 J 370 1 211 1 371 211 ..I 363 1 210 364 I 210 372 212 373 212 374 212 376-7 212-8 365 210 I 378 213 I 379 214 1 380 214 1 381 214 I 382 214 1 382 214 I 383-6 214-8 1 388 215 1 389 215 I 5 376 213 1 ^ 409 I 220 Jury — cotiHmw*/. Tales Hweariii^ of Jurun Factum to Ihj furninhed Default of pHrtiea co appear ... Flaiiititr may abandon suit No pai>er to lie read without leave lo Evidence of witnesses . Notes to be taken and copy prepared Hy stenography . . . . 36 By commission . . Faita et article,t . . Limited to facts assigned Where uo facts are assigned . . Right to begin and to reply . . Summing up Objections to charge Province of judge and . . Retire if they cannot ivgreo May be permitted to separate May re-examine witness Verdict — agreement of nine sufiices. . Case of disagreement Registering of Where it must be special Where it may bo general . . Need not be pronounced till fees are paid Execution for fees On all issues Cannot pronounce on costs Motion for judgment on verdict How opposed Nun obstante veredicto How and when made May be granted in certain oases In arrest of judgment How and when made When granted For new trial . . How and when mode May be granted for certain causes Must be granted in certain cases Affidavits of jurors to explain verdict cannot be received . . JCSTICES OF THE PeACE : May serve on jury Jurisdiction Remedy against their decisions Landloko and Tenant (.see Lessors and Lessees) Lands : Partition when held in common In the townships . . ART. I PAOI. 301 316 392 216 393 216 304 216 396 217 396 217 :i(»7 217 308 217 V. c. 1) 217 399 218 402 218 400 218 401 218 403 219 4U4 219 40."> 219 406-7 219 408 220 408 220 4U) 220 411 220 412 220 413 221 414 221 415 221 416 221 418 222 417 222 419 222 421 222 422 223 422 223 423 223 433 227 422 223 424 223 431-3 227 422 223 423 223 426-7 224-5 430 227 428-9 ,226-7 358 207 1216 593 1220 ' .-.94 887 462 919 474 912 473 77(j INDEX. Lani>h — continued. Titlu t<>— confiriiitttiiin thureof lUogal (lutvntion thereof in towiithips — Circuit Court haa coiiourrent juriadiution Gunoluiiuni for rents, iuitos, &o Procedure . . Defence — incidental demands . Purport of judgment Review thereof Ap|)eai therefrom . . 8nle thereof for non-payment of price (»(te Immovk- AliLKH) 33 V. c. 10 Lkahe : Actions on — (»ee Lkhhokh and Lehhebh) Writs how addrnHBud Lehkorh and Lehheeh : Suits may be proceeded with during long vacation between Delay upon Hummons in such suits . . Jurisdiction of the Courts . . ] Lessor may demand rent and issue attachment Appearance of defendant Filing of plea Completion of issues Inscription for proof Closing of proof Taking of evidence Inscription for hearing Judgment Writ of possession LETTEK8 Patent : Annulling and repealing thereof Scire' facias — information Service — hearing— trial Appeal ... Granting lands — cancelling of LiUITATION : I May be ordered in certain cases ' Parties to the suit Special tutor to certain minors Valuation of property before judgment by experts One expen suffices if all the heirs are mi juris . . . Proc idings on report... .. Allotment of shares Return — formation of mass — pretakings Advertisement of sale Publication at church-doors, &c Any other party may proceed on failure of plaintifl to do so ; Filing of oppositions AHT. PAOK. 04U 484 1107 540 HUH 640 1100 640 1110 640 1112 r>41 nil 641 1113 541 471 887 462 8941 nil 641 ;■.! 1113 641 ilOVB-' 0. 16 471 887 462 899 44i6 cutimi ( 1 1 17 ) 889 404 76 1 60 1 890 ' 464 887 462 1105 539 It 888 464 .. 891 465 . . 892 466 893 465 .. 894 465 ... 895 465 ..: 896 466 . . 897 465 898 466 ... 899 466 ...' 1034 514 ...1 1036 615 ...' 103G 615 ... 1037 515 ... 1038-J ) 615 ... 927 476 ... 920 475 921 475 (xperts 922 475 ria ... 923 1 475 924 475 926 475 926 476 929 476 93C ► 477 >laintift 931 1 478 935 J ' 478 LiciTATi»»ir— <;on 463 27 1142 1022 1023 1023 1U24 1025 1030 1026 1026 1027 1028 1029 1033 296 990 991 992 993 PAUB. 478 478 479 479 48U 480 480 480 476 247 410 441 106 17 242 242 28 661 604 606 505 506 606 507 606 506 606 507 607 186 496 496 496 496 996 I 496 996 1236 1216 136 497 602 503 106 If I* ' *", . / . 778 INDEX. Minor : Peremption nins against a May sue for wages in Commissioners' Court Appointment of tntor to Alienation of moveables where a co-heir is Of immoveables, {see Immoveables) Minutes : Of proceedings on writ of possession Of seizure of immoveables (see Execution) Inspection of notary's (see Inspection) Motion : In lieu of preliminary plea . . Upon incidents of proof For judg inent on verdict Non obstante veredicto For a np *^ trial In arrest of judgment To adopt report of experts «&c. , To homologate report of arbitrators «&c., . . For p3remption To extend delays to account . . For parties to declare if they contest opposition . For homologation of report of distribution To be relieved from imprisonment . For leave to appeal from interlocutory judgments . For certiorari . . Moveables : Seizure of (see Execution) Municipal Cobporations : No appeal lies in matters concerning New Trial, (see Jury) Non-appealable Casks . . . . Appearance of defendant Default recorded by clerk in the judge's absence . . Judgment by default . . Confession of judgment Proof and judgment by default Defendant is bound to plead forthwith when return is made in term — no written answer required [f no plea in writing be filed defendant may be called upon to state what allegations he admits Procedure where return is made in vacation same as appealable cases ... Notice of inscription .. Proof is made orally Execution of judgments under $40— on immoveables only — exceptions .. Oppositions — seizures by garnishment Suits determined summarily — cases under $25 de cided according to et^uity transmission of draft of judgment in the absence c judge art. PAOE. 456 237 1193 688 1256 608 1320 627 1267 611 650 289 638 336 1246 606 136 106 3J9 192 421 222 422 223 422 223 422 223 345 202 347 203 457 237 622 281 586 310 749 386 792 403 U19 547 1222 597 555 293 1033 514 422 223 1053 521 1093 536 1094 536 1100 538 1095 536 1096 637 1097 537 1098 537 1099 637 1099 537 1101 538 1102 538 1103 1 638 1104 Mt\A i 538 INDEX. 779 AKT. 456 1193 1256 1320 1267 550 638 1245 FAOB. 237 588 608 627 611 289 336 606 nta. 135 319 421 422 422 422 345 347 457 522 586 749 792 ni9 I 1222 106 192 222 223 223 223 202 20d 237 281 310 386 403 547 597 555 ; 293 1033 422 1053 1093 ce ..I 1094 1100 1095 1096 •etuml luired 1097 ay be .dmita 1098 tmeaal 1099 1099 1101 eablest 1102 1103 126 de-1 1104 nee o . 1104 514 223 521 536 536 538 536 537 537 537 537 537 638 538 538 538 538 NON-CONTBMTIOUS PrOOEXOINQS NoN-JCRiDioAL Days : Courts may not sit on . . ... ... What are , Case where anything is required to be done on .., Delays run on Party may not be summoned on Seizures cannot be made on Nor sales on execution Nor debtor arrested EAceptions Non-pros : Judgment, in appeal, of Non-suit : Where writ is not returned . . Or security not put in In jury trials On oppositions to marriage Notaries : Competent witnesses on improbation May be obliged to allow parties to take communica tion of documents (see Inspection of Docu- ments Chosen to make inventory ot succession Their duties on making inventory May preside in non-contentious proceedings, 39 V. Note (see Bill of Exchanoe). Notice : To be given parties of all papers filed Of inscription for hearing in law On merits In review ... For proof Prothonotary cannot make orders unless adveise party has had Of motion for peremption Of renunciation of j udgment Of application for distraction of costs Of putting in security . . For costs 33 V. Of motion to bxtend delays to account Of sale of moveables to defendant and guardian . . To creditors to file claims where debtor is insolvent Of sale of moveables to the public Of sale of iirtmoveables To hypotheoary creditors . . 41 V. Of application for writ of possession . . To appoint experts to value immoveables for the purpose of preparing report of distribution Of statement and declaration of abandonment of property being filed ART. PAOI. 1236 602 1 17 2 18 3 13 24 27 54 49 575 306 672 353 785 401 786 402 1129 567 82 65 129 102 395 217 993 496 252 173 1245 606 1306 624 1309 625 c. 33 602 462 241 462 241 462 241 498 272 235 164 465 243 457 237 477 249 482 269 516 280 c. 17 102 627 282 571 304 603 318 572 304 648 339 c. 15 341 712 370 736 380 765 394 780 INDEX. m- %■* -• Notice — cotdinvsd. ABT. FAOE. Of application for cmUrainte par corps 781 400 For bail 826 432 Of sale of immoTeables whereof owner is uncertain 904 468 Of sale of immoveables in licitations 929 476 Of applications for confirmation of title 950 484 Oath (see Affidavit). Court or judge may order or administer 11 20 Who may receive . . 30 SO In the Circuit Court 1059 525 Affirmation in lieu of .. 30 30 Decisory («ee Decisoby Oath) 443 231 Of witness — how administered (265 |287 305 175 183 On commission of enquiry 188 And commission rogatoire 310 189 Form may be changed 256 175 Refusal by witness to take . . 257 175 Experts must be sworn 330 195 Before whom 331 197 May administer . . 334 198 Court may order parties to appear and answer ques- tions to elucidate case 448 233 Summons of parties 449 233 Of sureties 516 280 In capias 807 422 Of sequestrator. . 878 459 Of juror 392 216 Of curator 1266 610 Objections : To evidence — how noted . . , . < 263 290 176 184 To questions by witness 274-5 179 To sureties 517-20 281 To questions put to garnishee while making his de- claration 619 325 To judge's charge to jury 405 219 Office : Usurpation of public . . 1016 501 Omission : In demand remedied . . \ 18 1 149 23 133 Opposition : To judgment by defendant 484 262 Form 485 263 Affidavit and deposit accompany 486 264 Service and filing of 487 265 Service of certificate of filing of 488 265 Eflect 488 265 Notice of 489 266 Contestation of 489 266 Is a defence to suit 490 266 INDEX. 781 ABT. PAOE. un ^ues- de- 781 400 826 432 904 468 929 476 950 484 U 20 30 80 1059 525 30 30 443 231 255 175 (287 183 305 188 310 189 256 176 257 175 330 195 331 197 334 198 448 233 449 233 516 280 807 422 878 459 392 216 1266 610 263 176 290 184 274-5 179 517-20 281 619 326 405 219 1016 501 \ 18 |149 23 133 484 262 485 263 . 486 264 . 487 265 . 488 I 265 . 48? \ 266 . 48t ) 266 . 481 ) 266 .1 49( ) 266 Opposition— conWniwd. ART. PAOE. To pidgment by defendant — continued. Procedure . . 490 266 Costs, if maintained 491-2 266 Declaration held to be proved where none is filed 493 266 By third parties ; who may file 510 277 Form 611 278 Procedure . . 512 279 To judgment of distribution by creditors 761 393 To seizure of moveables — may be made by debtor and I , others 580 307 • Grounds of 581-2 307 Lessor cannot file . . 582 308 Election of domicile 683 308 Stay of proceedings — affidavit . . 683 308 Affidavit unnecessary in certain cases . . 584 310 Service 685 310 Motion to declare whether parties admit or con- test 586 310 Contestation subject to ordinary rules . . 68/ 312 Peremption of 588 313 In the Circuit Court 1083 534 Non-appealable 1103 638 In the Commissioners' Court 1213 692 To seizure of immoveables — affidavit— stay of pro- ceedings 651 343 For certain rents does not staythesale — returned by sheriflf as oppositions for payment , , 640 337 Subsequent writs de ten-is returned as opposi- ■■ tions . . 642 337 When filed 652 344 EflFect, if filed after delay 652 344 Return in such cases 662 344 Publications proceeded with 653 344 Sale proceeded with in certain cases . . . 653 344 Delivered to sheriff 664 345 Returned by sherifl" > • * 655 346 In the Circuit Court ... 1088 636 Non-appealable 1103 638 Liability for damages of party who files an un- successful • • • 656 346 To annul ... 667 346 In licitations ... 932 478 In cases of confirmation of title 957 487 To mthdravi ... 658 347 In licitations 932 478 In cases of confirmation of title ... 967 487 To secure charges, who may file 659 348 In licitations ... 932 478 When unnecessary . . ■ 659 348 In cases of confirmation of title ... 957 487 782 INDEX. r 1 1 1/ Opposition — contmwed. 'i^''o c/iargre<, wheu and by whom filed Proceedings similar as on oppositions to sale of moveables Proceedings after decision, on venditioni ex- potuu Does not stop sale under wnMtwni exponas — exceptions For pa«men<— register kept by prothonotary When necessaiy How and when filed Costs on Election of domicile Payment of moneys where none is filed Contestation In lioitations Ensouaordre Must be borred To marriage (see Marriage) May be proceeded with during long vacation... Order : During sittings of courts To stop seizure and sale on petition to revoke judg- ment And on opposition in case of immoveables To force doors, &c To stay proceedings on venditioni exponas ... ¥oT folle enchire For imprisonment For capias where claim is unliquidated For attachment in similar cases Original : Exhibits need not be filed nntil articulations of facts Supplying loss of Obtaining communication of (see Jnsfbotion of Do CUMENTS) Panel : Striking of (see Jury) < Parliament : Service of Members cannot be made in Parsonages : Jurisdiction of C. C. in suits for assessments to build and repair Particulars : Declaration must contain Partition : Compulsory (see Licitation) Of Township Lands — who may demand. Petition sufficient Jurisdiction art. 660 661 662 664 718 718 720 721 722 723 747 938 753 764 990 1 faok. 348 349 349 360 373 374 374 376 375 375 385 480 390 391 496 17 5-8 |l8-i& 507 ' 651 569 664 690 787 801 835 100 1252 1245 362 367 71 276 343 303 350 367 402 419 441 77 607 606 Jil 69 1053 621 50 43 919 474 912 913 473 473 of e»- 18 on... iiidg- ABT. 660 661 662 664 718 718 720 721 722 723 747 938 763 764 990 1 FAOK. 348 349 349 360 373 374 374 376 376 376 386 480 390 391 496 17 6-8 118-19 of Do ta to tition 607 661 669 664 690 787 801 836 100 1252 1246 362 367 71 1063 60 919 912 913 276 343 303 360 367 402 419 441 77 607 606 9ft9 Jil 69 521 43 474 473 473 INDEX. 783 Partition— continued. Orders for co-tenanta to appear and advertiaement. | Intervention of co-tenanta — joinder of iaauea . . Judgment binding upon all partiea . . . . | Reference to arbitrators — proceedinga thereon Coats Paternity : Cummisaionera' Oourta have no juriadiction in actions of . . Pauperis, In Forma {see In Forma Pauperis) Payment : Of moneya levied where no oppoaitiona are filed in aeizures of moveablea In aeizurea of immoveablea . . After judgment of distribution Tender and — see Tender Peace : Justices of the . . Penalty : Cannot be sued for in forma pauperis, 36 V. c. 20 Nor in Commissioners' Court . . Pensions : Exempt from seizure . . Peremption : When suits are perempted . . When not Against whom it takes place . . How obtained . . How covered . . Effect of Costs Of oppositions . . In Appeal Peremptory Exception (see Exceptions) Peremptory Writ ; Of mandamus {see Mandamus) Personal Actions : Venue . . Execution (see Execution) . . Petition : To revise judgment by default Form Affidavit necessary Is a defence to suit Procedure . . To revoke judgments obtained by fraud . . Delay for filing Does not stay execution without judge's order Same attorney may represent party Judgment, effects of For resale for false bidding (see Execution) art. page. 914 473 916 473 916 474 917 474 918 474 1189 587 31 32 601 317 723 375 757 391 638 285 1216 593 32 1189 587 628 aao 658 298 454 236 455 236 456 237 457 237 458 238 459 240 460 241 688 313 1168 672 136 105 1026 506 34-8 34-8 551 289 483 262 486 263 486 264 490 266 490 266 506 276 607 276 607 276 508 276 509 276 690 357 784 INDr.X. J" i' :% Petition — cmUimied, Kor writ of poBooMion . . ... For vacatiuy salt.' by ahitriff To revoke judgment honiologatu t,- a report of dia- t,ributioii For fliacharge ',»( debtor after abandonment of pro- perty For alimentary allowance by jriwiy imprisoried To discharge penion impris'i'ied To quaah capias... Immediateretumufw.nl; Contestation Appeal Of wife to be allowed to sue for separation from bed and board For sale of immoveables where owner is uncertain . Where price is not paid... .,, 33 V. c. 16 For partition of township lands ... For mandamus For injunction 41 V. c. 14, s. 2 For leave to appeal from decision of C. C Petitory Actions : May be brought after possessory Where lands held in free and common soccage are illegafly detained Jurisdiction of courts ... Conclusions for damages , &c . . . Procedure ... Pleas Review Judgment — writ of possession Appeal ... , ... Phots : Jurisdiction of Trinity House as to wages of Pleadings : No particular form required Court may allow subsequent .. . Delay to file Incompatible or contradictory Amendment of Delays after amendments Judge may extend delays Copy to be served on adverse party of all ... Pleas : Preliminary (see Exceptions) To merits — demand of Before answering preliminary pleas . . , >T. PAOK. ':u 370 7u> 372 761 392 777 399 7'JO 402 7y2 .403 819 426 820 428 821 428 822-3 428-9 986 495 900 466 471 912 473 1023 505 5(9 1148 566 948 483 1107 540 1107 640 1108 540 1109 540 1110 540 nil 541 1112 541 nil 541 1113 541 1218 593 ( 20 U44 24 120 148 131 nio |l39 80 118 146 124 ( 53 47 )ll7 88 )320 192 f 420 222 142 120 141 119 462 241 107 78 137 115 131 103 INDEX. 786 i jiST. PAGE. . i 'r><« 370 . 7tft 372 ii»- 761 392 TO- ' 777 399 ■; 7 JO 402 .. 792 403 819 426 .. 820 428 ... 821 4*28 ...822-3 428-9 bed 986 j 495 lin. 900 406 •16 *71 .. 912 473 1023 605 8." 2 5( 9 ... 1148 1 566 948 S 483 B are .. 1107 540 . n07 640 .. 1108 540 1109 640 ... 1110 640 . nil 541 1112 641 ■( nil i 1113 541 541 ... 1218 693 20 ' 24 • \ 144 1 120 ... 148 131 nio 80 - ) 139 1 118 ... 146 i 124 ( 53 47 ) 117 88 •• ^320 192 f420 222 ... 142 120 . 141 119 ... 462 241 ... lo-j 78 .. 137 1 115 ... 13] L 1 103 Pleas — continued; If Kled with preliminary pleadings, proof takes place on all issues May be renewed if exception be maintained in such case Grounds of Delay for filing In the Circuit Court appealable Non-appealable Answering In the Circuit Court, appealable Subsequent pleadings ' • Where warrantors are to be called in Foreclosure Ordur of court sometimes necessary to obtain acteoi No particular form required Party must choose between incompatible pleas Demurrer Amendment, after proof , of In aotiims between lessors and lessees Against corporations illegally formed POSSBSSION : Writ of, on refusal of party to surrender immove able Proceedings thereon In petitory and possessory actions Of effects re vendicated Where lands are sold for non-payment of price, 33 V. c. 16 Provisional, in case of absence — petition ... Act of notoriety ... Notice calling in claimants Procedure General provisions PossRSSORT Actions : Who .jay bring Within what time Cannot be joined with peti^oire In case of the illegal detention of township lands, («ee Petitory Actions) PowBR OF Attorney : From absent plaintiff [n improbation Recusation ' Disavowal Required to offer decisory oath Practitioners : Reference to (see AocouNTArrTs) Preliminary Pleas : (see Excbi'tions) Preliminary Examination : Of witness Csee Voir Dire) 50 ABT. 132 PAOK. 103 133 104 136 105 137 U5 1070 630 1097-9 637 138 116 1070 630 139 118 134 104 140 119 141 119 144 120 146 124 147 125 320 192 892 465 1002 499 i712 649 370 289 650 289 1112 541 869 455 471 1327 629 1328 629 1329 629 1330 629 1337 631 946 482 947 483 948 483 1107 540 120 90 161 140 184 146 194 148 444 232 340 200 107 78 (259 176 <262 176 (268 177 m r If -X 786 INDEX. \i.^ !• art. PAGE. Priest cannot be arrested under capiat . . 806 421 Privileged ouiMinuuications to Private Writinos : 276 179 Judgment by default or exparte on . . Denial of signature 89 70 145 121 Witness bound to give copy of, if required . . 276 181 Privilege : Banking of claims on moneys levied by execution against moveables {»ee Execution) 602 318 In cases of seizure by garnishment 622 327 Privileoed Communications : Need not be revealed by witness 2/6 179 Privy Council : Appeals to from Q.B. . . 1178 577 From court of review . . . . 37 V. c. 6 267 Stay of execution upon security being given 1179 581 Security may be given for costs only and judgment a quo executed 1180 683 Certificatti that appeal has been lodged Register of exemplification of decree of 1181 583 1182 684 Procedure : Abrogation of former laws of 1360 640 Casi omisai 21 25 Procbs -Verbal : On priJceeJings on writ of possession 560 28!) Of seizure of moveables 669 298 Form— contents 5G0 299 In triplicate 6(31 301 Service on absentee of . . 670 304 Of seizure of ready money . . 564 302 Of seizure of immoveables 638 336 Unnecessary in some cases 641 337 ' In attachment before judgment 849 446 Of property sequestrated 878 459 Prohibition : Writ- application f-jr — execution of. . 1031 612 General provisions— appeal 1033 614 Delay upon service 76 60 Promissory Note (see Bill of Exchange). Proof : ^ Before arbitrators, accountants, &o 340-1 200 Commissaire-enqueteur 300 187 Commissioners S. C. by consent 239 166 Prothonotary 286 183 Viewers, experts 336 199 Jury 397 217 By commission rogatoire 307 188 Stenography 398 217 Of consorts 262 173 Deaf mut :; 261 175 Bailiff who served writ 262 175 INDEX. 787 1 ABT. P AOE. . 805 421 . 276 179 89 70 . . U5 121 . . 276 181 on .. 602 318 622 327 j . . 2/6 ' 179 .. 1178 677 . 6 267 .. 1179 681 BUt .. 1180 683 1181 583 .. 1182 584 .. 1360 640 21 26 ..' 560 28» .. 559 298 .. 5C0 299 561 301 .. 570 304 .. 664 302 .. 638 336 .. 641 337 849 445 .. 878 459 .. 1031 612 .. 1033 614 75 60 ... 340- 1 200 ... 300 187 ... 239 166 285 183 ;■.". 335 199 ... 397 217 ... m 188 .. 398 , 217 ... 252 ! 173 . 261 175 .. 26 2 i 175 Proof — contintied. Does not avail party examined — may be uted against him Extraordinary investigation ... Of witnesses, (see W1TNB88B8) Must be in writing, otherwise no appeal will lie ... Failure of party bound, to proceed . . Booms assigned for taking ... Judge take x notes if required . . Objections to . . . . . . Prothonotary may preside sometimes Objections noted in such cases Aduiinsions taken down Inscription In Circuit Court For proof and hearing . . In Circuit Court . . ►,■•.. Postponement . . In Commissioners' Court In suits between lessors and lessees . . Concerning corporations . . For separation of property By default or exparte Affecting corporations . . On all issues where pleas to the merits are filed with preliminary exceptions Amendment of pleadings to agree with In the Circuit Court, appealttble May be had on every day in term Inscriptions, in contested suits, are for proof and final hearing Notice thereof Procedure of examination of witnesses . . Before clerk, examiner, &c., by consent Expenses to witnesses .. Preitve avant faire droit . . In another Circuit Nou-appealable . . (See With ess, — Evidbnoe. ) Pbopebtt : Abandonment of {see Abandonment) Separation of (see Sbpabation) Sue of minors' Pbotest : Of bill, note, denial of Pbothonotaby : May administer oath ... Draws up judgment on confession ... And in default and exparte cases May receive applications for security for costs ART. PAUL 261 173 321 193 236 166 1142 661 )288 182 299 186 286 183 265 176 <263 176 |290 184 284 183 284 183 266 170 234 164 1071 531 243 168 1075 632 216 154 1209 591 896 466 1003 499 976 492 318 191 1003 499 132 103 320 192 1071 631 1071 631 1072 631 1073 631 1074 631 1075 632 107« 632 1077 532 1078 532 1101 538 763 393 972 491 1267 611 145 121 30 30 94 73 92 72 120 90 788 INDEX. " I i ' Protiionotary — eontinutd. May preside at the taking of proof in oontetted caaei May perforin dutiei of judge in vaoation during his absence Cannot give judKtnent or orders (except in default oases) unless adverse party be notified . . Orders may be revised by judge Serves writs when sheriff and coroner are interested May adjourn court May give orders to force doors, &c . . Or to pay moneys to seizing creditors • Must keep register of all returns of writs of execu- tion And a roll for enqudtes In non-contentious proceedings has the same power as a judge . . PRoviaioNAL PoasESBiox {see Pobbrssion) Pdblkjation («ee Advehtihemint) Public Office : Usurpation of, {see Usurpation) . . Public Officer : Notice of action for damages to Venue of trial by jury in such suits... Mandamus may issue against Purchaser {see Executiow) Quaker : May make affirmation {see Oath) Que;:n's Bench {see Appeal) Questions : To witness on voir dire. . Leading ... Witness may object to certain Quorum : In appeal Quo Warranto {see Usurpation) Rafts : Execution against absentee defendant for wages due employees on . . Ratification of Title {see Confirmation op Title) Real Actions : Venue Execution . . Reasons of Appeal {see Appeal) Recaption {see Attachment for Rent). . Record : Transmission from place to place In Circuit court To Court of Review Return ABT. PAOB. 284 183 466 243 466 466 467 460 669 723 243 243 246 246 303 376 718 237 373 165 1339 1327 672 631 629 304 1016 601 22 366 1022 674 25 206 504 353 < 30 )265 1114 30 176 642 (259 {262 (268 270 274 175 175 177 177 179 1166 1016 570 601 552 949 290 484 37-41 549 1133 873 38-9 289 559 457 25 1078 498 502 28 532 272 273 INDEX. 789 ART. I PAOl. 284 I 183 466 243 466 406 l' 467 .1 400 669 723 243 243 246 246 303 376 718 373 237 166 1339 1327 672 1016 631 029 304 601 22 26 366 206 1022 604 674 363 ( 30 I 266 1114 (259 <262 (268 270 274 1166 1016 ue 552 949 37-41 549 1133 873 25 1078 498 502 30 176 542 175 176 177 177 179 570 501 290 484 38-9 289 559 457 28 532 272 273 Record — cmUinutd, Tu Court of Apptiali Return Where commiuionera are recuMid Where judge it recused . . Reitoratiun of miMing Proceedings before a judge, in non-contentioua pro- oeedings, form part of . . Rkcokdbr'h Cuuht : Juriadictioii Recusation : Orounda for Judge disqualified if intorcated Caae where judge recuaed cannot refuae to ait Judge cannot ait after maintenance of Judge must declare any exiatin^ grounda of And Bo muat party who ia aware of any. ... Delaya in caaea of May be filed at any atage Procedure No Hpeciul power of attorney required from absentee Where the aole judge ia recuaed — remiaaion of record Where recusing party haa no proof to adduce Maintenance thereof . . Where case haa been carried to court of another district Dismissal thereof Party may renounce right to Of experts . . Grounds for Of arbitrators . . In appeal In Oommissioners' Court Register : Of retuma of write of execution Of decrees of Her Majesty's Privy Council Of civil status : pn-paration, attestation . . . .> Binding of duplicate . . . . . . I Officers bound to fulfil their duties under penalty . . . . . . . . . . i Petition to rectify register Summons of party interested . . Inscription of rectifying judgment in register. . Of regiatry offices : authentication . . Of aherifis and coroners : of deeds of sale, deposit of Authentication thereof Reoistrak : After forced sales sheriff obtains a certificate of hypothecs from . . ART. 1126 1176 1187 186 102 PAOB. 565 676 6H6 140 77 1338 , 631 1217 176 177 J 178 jl91 187 179 180 181 182 183 184 186 186 187 188 189 190 326 327 1349 1157 1185 718 1182 1236 1237 1238 1239 1240 1241 1242 1243 1244 699 693 143 145 145 147 140 145 146 145 145 146 140 140 140 146 146 147 147 195 196 635 570 585 373 584 002 604 604 604 605 605 G05 606 606 361 >'i. 790 INDEX. RiOIHTKAK — coniiMud. Cue where it cannot be obtained before day of return Meaning of word " Hypotheo " Fomi and purport of certificate Where booki do not give requisite information, duty of Fomi of certificate in auch caie Where property waa included in some other division Oovemor niay change form of certificate ' Second certificate not required in cases of fuUe enchire Cost of certificate retained Contestation of certificate Is an oflicer of the court Certificate in oases of confirmation of title. . Authentication of registers rEQiHTRAH'H Ckktificatk, (gee Rguihtkah) Removal : Of seals, {aee Seals) . . Rent : Attachment for ($ee Attachment) Lessor may not oppose seizure and sale btit must file claim for payment Rents . Seizure of constituted . . Sale not stayed by opposition for certain . . Oppositions to sale of . . Collocation of claims for Execution in the Circuit Courts for certain Appeal to Q. B. in matters concerning ToP. C Renunciation : Of community by wife should be registered Report : Of distribution (aee Execution) Of experts («ee Exferth) Accountants (aee Accountants) Reprise D'Instance : Case cannot be retarded when ready| for judgment by change of status of parties When a case is said to be ready for judgment Attorney bound to notify '•.uv^erse party of his client's death or chciige of status Proceedings subsequent to notice are null. . Suspension of suit till parties are called in to take up the instance . . Who may file .. ., How effected and contested ... If not contested If not filed AltT. cm rAui. 361 600 361 700 363 701 366 701 366 702 367 703 367 704 367 706 367 738 381 740 381 065 486 1242 606 607 360 1202 621 873 457 682 308 632 334 640 337 662 344 733-4 380 1102 538 1142 661 1178 677 080 403 724 375 336 100 340 200 [434 228 468 246 436 220 436 220 437 220 437 220 438 220 430 230 440 231 441 231 INDEX. KT. I 'AQI. 698 361 699 : 361 700 362 701 366 701 366 702 367 703 367 704 367 706 367 738 381 740 381 966 486 1242 606 697 360 1292 621 873 467 682 ' 308 632 334 640 337 662 344 733-4 380 1102 638 1142 661 1178 577 980 493 724 375 336 199 340 200 (434 \ 468 228 245 436 229 436 229 437 229 437 229 438 229 439 230 440 231 441 231 Rrprini it^lrtnTAVrK—annliwud. Effect thereof On oonteitatiitn of exeouttim. . In apiMMl ... RlQURTR ClVII.K (w<' I'CTITION) Rrhalr roH Falhr BioniKo (ne Execution) Rrhpondrnt : A'^poarance («e«! ApPKAlj) RiTURN : Of Bumnioni, mnit be made on day fixed ■ . How etToote-7 244-5 548 289 1 545 287 • •1 550 289 ... 555 293 cases . 555 293 ... 559 298 ...i 560 299 ...; 559 298 662 301 .. 563 301 . 568 302 569 303 , 586 310 591 313 592 313 i 594 314 es 59rt 316 1 their 1 601 317 . 634 335 . 634 335 . case 3 635 335 imovc . . 637 336 .: 640 337 ce . . ()42 337 4gain8 t . 642 337 if th e . 643 338 .. 644 1 338 mses .. 647 I 339 .. 64€ I ! 333 .41 S T. c. 15 342 Sheriff— c»>nKnM«f/. •*"''■ And publish at church doors if seizure was made in a parish 650 When he may stay the sale 661 Return of oppositions to Court 662 And writ 655 Continues publications notwithstanding oppo- sition 663 But cannot sell — exceptions 663 Delivery of oppositions to ... ... . . . | 654 Proceedings after decision on oppositions . . . ; 662 Vmiditioyn exponas ... ... , 662 Contents thereof .. ... ... ... 663 Notices thereunder ... .. ... ... 663 May receive bids in writing prior to sale ... 666 How such bids are made... 666-7 May require deposit therewith .. i 667 Form of bid l 668 Endorses and returns bid ... ... 6)9 Furnishes ofhcers presiding at the sale with a list thereof 670 When the sale takes place ... ...i 671 Not on Sunday j 672 Proceedings on day of sale i 673 Declaration of bidder 674 Conditions of sale . . .. 676 Who may not bid ... 676 Verbal bids by proxy 677 Deposit may be required with bid 678-HO Or dispensed with .. ... 681 Bid without deposit disregarded i 682 Refund of all deposits except purchaser's . . ; 683 Duration of bidding 684 Adjudication to highest bidder | 685 Proceedings after sale : i Bidder by proxy must declare name of principal! 686 Purchaser must pay price | 687 When he may retain it .. ... 688 Deed of sale — contents 689 Return of writ 697 Certificate of hypothecs from registrar 699 Where certificate cannot be had before letirm' day j 698 Form and purport of certificate I 690 Certificates fr(NA8 : When issued Purport of Suspension of sale under Where a resale is had for false bidding, writ must be in the nature of Vbnibb Facias («ee Jury) Ventje (aee Jcribuiction) YEBDICT(seeJCBY) Vbssel : Seizure of ViKWEBs ( 4. M. 1.0 1.1 ■so ^^™ ll^ll ■^ Uii |2.2 iJ& I^IIJ^i'-* ^ 6" ► .% y ^V'' ^:^*' ■% Hiotographic Sciences Corporation 33 WEST MAIN STREET WEBSTEt.N.Y. 14SS0 (716) S73-4S03 V^^ V ^ a 6^ !^ 804 INDEX. WiTNKsa — eotUimued. Judge bound to take notes Evidence of witi^eas does not benefit himself Impeaching evidence of one's Betow commisnon rogatoin Swearing Protl^onotary Jury Examination de ttoro Experts, &c. Commissaire Enqudteur Arbitrators Commissioner S. C. by consent Stenography 36 Y. c. 6 Required to forcing of doors, &c And to consent of creditor that bids be received without security And to certificate of registrar in some cases May be examined on we contestation of report of distribution Taxation Parties must be present at examination of )n actions between lessors and lessees In the Circuit Court, appealable, examination Summons from beyobd district , Non appealable .. In the Commissioners' Court — Summons One sufficient Weit: Of Capias (se« Capias) Of Faits et Articles {see Faits et Articles) Of fieri Facitis de bonis (see Executiok) ... ^ De term («ec Execution) Of Venditimii Exponcu {see Venditioni Exponas) art. Of possession {see Execution) 33 V. c. 16 Of summons («ee Summons) Of Habeas Corpus ad testificandum Ad subjiciendum {see Habeas Ookpus) Of venire facias («eeJuBT) Of mandamus Quo warranto Prohibition Injunction 41V. Of appeal Attachment for rent In revendication By garnishment Simple May be addressed to bailijpr 33 Y. c. 14 c. 17 3T^ 5728 4 PAGE. 266 176 261 173 269 177 307 188 310 189 286 183 397 217 410 220 334 198 304 187 1346 633 239 166 217 669 303 681 364 701 366 741 382 741 382 296 186 896 466 1074 631 1076 631 1101 638 1210 691 1209 691 797 406 222 166 666 293 632 334 662 349 (649 289 \ 472 (712 370 263 174 1040 616 372 212 1022 604 1017 602 1031 612 507 1121 648 873 467 866 462 866 449 834 436 41 <^ < ABT. PAOI. 266 176 261 173 269 177 307 188 310 189 286 183 397 217 410 220 334 198 304 187 1346 633 239 166 ; 217 569 303 . 681 354 . 701 i 366 . 741 382 . 741 382 . 296 186 . 896 466 . 1074 531 . 1076 531 . 1101 538 . 1210 691 . 1209 691 . 797 406 . 222 166 . 565 293 . 632 334 662 349 (549 289 ^\ 472 (712 370 ".' 253 174 .. 1040 616 .. 372 212 .. 1022 504 .. 1017 602 .. 1031 512 .4 507 .. 1121 648 .. 873 467 . 866 462 . 856 449 . 834 436 17 41 ^ /v