IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I i.25 t Hi 6' 12.2 2.0 1.8 U 11.6 a> .X> I>iiiio lire qu'i Plitiques Uii texte < li\ ler i'l d inliuctuei i[)ted fo [THE EI Annotj; liar Code oj friie Educ one of t lachers in blicgene IS provis [jit now |e law pvers and ^ pec tors !«tant c( 3 ted by fwCode^. engaged thi \ com a o^ 1 vol. U & ^3 St* James Street, Montreal/ Canada. jIOH'S Que»)ec Str'.utcs Law Index..— Embracing all the legislation of the province of Quebec, from 18{'7, down to and including the year 1898, by Hakuis H. Blicjii, Q.C.,, Librarian of the Supreme Court of Canada; Editor of the Consolidated Orders-in-Council of Canada . Compiler of the Ontario Law Index ; and oyie of the compilers of the Dominion Law Index. Royal 8vo, 290 pages, 1898. Price bound Cloth, ^2.50. >I>inions.— " Nous avon.« feuillete cet index et nous n'hesitons pas _^lire qu'il vaetred'une extreme ntilite. Tons les jours, les hommes |JC>liti(iueH, les jnges, les avocats, les notaires, ont besoin de trouver an tcxte de legislation sur tel ou tel sujet. Mais souvent il faut se li\ ler a de longues et fastidieuses recherches, qui parfois restent Itructueuses. On ne se rappelle pas toujours la date, on se trompe lelquefois dc plusieurs annees sur la loi dont on a besoin, et Ton krd son temps et ses peines. II y a eu tant de lois adoptees a Que- kc, depuis 1^07 f A.vec I'indexde M. H, II. Bligh, ce travail derecher- kes va dev( uir facile et rapide. Toutes les lois de Quebec, depuis la HI federal ion, publiques ou privees, rappelees ou encore en vigueur, lilt indexees dans ce volume de la maniere la plus judicieuse et la lus claire. Cet ouvrage est vraiment de la plus haute utilite.*' — Vinrrier du Canada, Quebec. I" It is also the first time that an index to the Statutes of the Pro- Ince is given in such detail, making it very easy for researches, pe alphabetical orde", with a great number of cross references, and fce chronological order of the law^, is certainly the best plan to be popted for such a work." — Telegra})h, Quebec. ■THE] EDUCATION ACT " of the Province of Quebec, 1899, ■ Annotated, by R. Stanley V/icir, D.C.L., Adrocate Montreal H Bar ; Author of the " Old Regime in Canada" and " The Civil I Code of Quebec, i.sW." (Revised Pocket Edition.) Wriie Education Act which has just been passed by the Legislature ■ oae of the most important of recent enactments. The clergy, aacliers in our schools and colleges, members of the Bar, and the J«i'>lic generally, will all be interested in xn examination of its var- ious provisions. The editor has taken :iJ vantage of the necessity t^iit now exists for this publication, to incorporate with the text of tK<' law the numerous decisions of oui courts that deal with the pp\v(!rs and duties of school commissioners, municipalities, teachers, inspectors and others. It also contains the Regulations of the Pro- liant committee of the Council of Public Instruction, and is com- ;ted by a very elaborate alphabetical and analytical index. This |w Code of Public Instruction is thus an essential vade mecum for 6'^giigcd dir(;ctly or indirectly in the work of our schools. I vol. royal 32, Price, bouna cloth f 2.00 IDE I THE IDE OF CIVIL PROCEDURE OF THE i' PROVINCE OF QUEBEC. ! i I I BY THE SAME AUTHOR The Civil Code of Lower Canada and Tbe Bills c Exchange Act. With all statutory amendments verified, coUat*' and indexed. By Robert Stanley Weir, D.C.L. Advontfe of the Montreal Ihir. 1S5H). 1 royal, .*{:!, cloth )8t2.0(), i calf .52.50, full mor. Jlexible '^W.Q*). NoTA.— It is certainly the most accurate English pmlet edi Hon yet pxMished. The Education Act of the Province of Quebec, 1899 (An- notated). Also contains the regulations of the Protestant and Catholic Committees of the Council of P«il) lie Instruction, by K. Stanley Weir, D. C. L., Recorder of Montreal. 1 vol. royal, 32, pricf. bound cloth, $2.00. WEIR'S Bills of Exchange Act, 1890. Being an act relating to Bills of Exchange, chc ques and promissory notes together with anj Introduction, explanatory notes and an index. I By Robert Stanley Weir, B.C.L., Advocate oi\ the Montreal Bar. 1891. Cloth, 50c. The Administration of the Old Regime in Canada. A thesis submitted to the Faculty of Law of McGill University for the degree of doctor ofj civil law. By Kobert Stanley Weir, D.C.L. LSOT. 8vo., paper, .5I.UO. C. THEORET, LAW PUBLISHER, MONTREAL. •* AMENDMENTS e Bills o| l,collat«'i;! r, D.C.I- royal, :i2.\ le '4',i.C). porket edi 1899 (An- rotestaiitl ilof Pul. D. C. L. 32, price. nge, chc with Mill n index. 'ocate ofl nada. Law ofj octor of! L. 1897. TO CODE OF CIVIL PROCEDURE 63 Vict. lOOO, to G EowAitD VI L, liXX>, inclusive. 7. Article 7 of the Code of Civil Procedure is amended hy adding after the tvord : ' * as, ' ' in the third line of paragraph 6, the wordti : ' * a i>uiblic* hol- iday or as." — ^2 Edw. VII., efiflp. 40. 8. Article 8 of the Code of Civil Procedure is amended hy adding thereto the follow- ing clause : **If the day on which any proceeding should be served or prodiuioed is a Saturday, the proceeding may be served or produiced with a lilce effect on the following juridical day." — i Ed ID. ML, chap. 4-5. 29. Article 29 of the Code of Civil Procedure is amended hy adding thereto the follow- ing clause : ''The mayor of evei*y mmii- cipality in the province Is authorized to a(bninister the same oath as a oommiissioner oif the Superior Court. "- Edw. VII., chap. 46. 47. Article 47 of the Code of Civil Procedure is amended by adding thereto the follow- ing clause : ' ' Nevertheless, appeals from jiMlgments reiulered by the Cii'ciiiit Court in and for the county of Lalie Megantic are brought, heard and determined in the city of Queibec." — 3 Edw. VI L, chap. 50, sec. 1. 53. Article 6,'i of the said Code is amended by inserting therein, after the first clause, the following : ' * Neverthelests, the review of juilgnieuts rendered by the Circuit Court in and for the county of Lake Megantic takes place in the city of Quebei*." —8 Edw. VII., chap. 50, sec. 2. 59. Paragraph 1 of article 59 of the Code of Civil Pro- cedure is amended hy re- placing the tcords: ''twenty- five dollars, ' in the second line, hy the words: "thli-ty- nlne dollars." 1 59. I'aiugraph 2 of the said article is amended hy re- plaeiinj the words: " tweiity- livo dollars," in the fourth line, by the words: ''tlilrly- iiiiie dollars. — 4 JJdn'. \ II., chap. 47. 316. \rliele 310 of the Code of tii'il Proeedure is amended l)]j addiny thereto the folU/iv- ing clause : **A party wlioii exaniiiuHl as a \>itn('ss, oithor on his own boliaM' or by the adverse party, may, in tlio discretion of tlie court or judge, be tax- ed as any otlun* witness. — 4 iUhv. Vlf., chap. 48. 61. Article 01 of the Code of Civil Procf dure is amended 1)1/ adding, after the word : ''Islands," ?//, the fifth line of paragraph 1, the ivords : in the county of Bonaveuture. " — .*{ Edw. VII., chap. 51. 61. Article 01 of the Code of Civil Froeediire is amended hy adding, after the word: 'Tontiac, " in the third line of paragraph 1, the word : "in the county of Oltawa. " — 3 Edv). VII., chap. 52. 61. Article 01 of the Code of Civil Procedure, as amend- ed hy the acts 3 Edward VII., chapters 51 and 52. is further amended t)y striking out the words: "in tlie county of Lake St. .John, in the third ana fourth lines of paragraph 1 thereof." — Ediv. VII., chap. 42, sec. 1. 86. Article 8<'> of the said Code is amended hy adding thereto the )otleeding. except in nuuiicii>alitics in which a bailiff resides, to be made by any literate person, who is over twentj'-one years of age. I hM" >' >'nw' ''" ' Tlie returu of suich service shall be made hi the manner indicated In article 153, mu- tatis tuutandis, and be sworn to before a justice of the peaic^ or a conmiiisRioner of the Superior Court. That made 'by a secretary-treasurer of a mimii'ipnl cori)oration sliall be made under his oath of of- fice. Siich authorization must appear on the writ." — 2 Edw. VII., chap. 41. 135. TJic following article is inHcrtcd in the Code of Civil Procedure, after article 135 : 135a. When the suiocession of a person opens outside of the Province, any real action relating: to his estate may be taken against the heirs col- Jectively who have not rej;- i.stered, within, the three moniths, the conivoyance by will or transmission by suc- cessiion of w-^uch pro]>erty. as required by arti<-le 2(Y.)H of the Civil Code. Service is made fupon the order of n judge of the district in which the property is sitnaied. or- dering; such heirs to appear within one month from the last puiblication of a s^-nopsis thereof in Fr<^ncli and Eiijjlish in a newspaper in sucii dis- trict. If the heirs do not appear, l^roeeedinjrs are continued as in cases by default, and no service of the jiKlj^nicnt is f t (J I'Jdw. ML ueoestwiry. chap. -ti. 165. Article Km of the Code of Civil Procedure is amended hy adding the two following clauses thereto : "The dei)osit Is not reqtulr- ed excei>t upon motions made under articles 170, 173, 174, 177. 18;5 and 1!K>. wliich are considered as preliminary pleas to tihe action. The deposit is not required uiHjii motions for parti<;ulars, for production of documents, to reject some of the allega- tions of the dtx-la ration and other like motions." — 1 Edw. 17/.. chap. 34. 237. Article 237 of the Code of Civil Procedure is amended by adding thereto the folldw- ing paragraph : *'S. If he is related or a'.- lied to the attorney or coun- sel, or to the partner of the attorney or coiuisel of one of the parties to the suit, either in the direct line or t > the second degree in the collateral Jine."— 1 Edw. VII., chap. 35. 314. Paragraph 4 of article 314 of the Code of Civil Pro- cedure is replaced hy the fol- lowing : **4. IIu>«l)and or wife against latioii to any fact coiine on until tifty-two luinies ivinain on tlu> spivijil list, afttr wliicli t!i(> j»artuvs procood as lirovidcd by the previous Ar- ticle. *'439/y. T'pon application by one of the partk^, i^iipport- ed by affidavit setting forth that any 'iterson whose name is entertHl on the si>eclal list Is subjci't to any (liscpialifiea- tion or (lisability, or iis exemi>t from servinij:c Jis a juror, the prothonotary may with the consent of both par- ties, strike otTf such name from suioh list. If, however, any party ap- plies for the strilvinj,' by th^ prothonotar, "jf any name on the list, and the other p;irty objects, the prothonoLarj' shall ithereupon, prepare a supple- mentary list containing a number of jurors equal to those objected to, which names shall ho added to the panel, tout such jurors shaM not be called upon to serve unless in place of those who have been obje to stike the names of those who are dead or altsent from the ose the panel, together with those pe!*sons whose names are added under Article 43!>^. " — 3 IJdw. VIL, chap. 54, see. 4. Article 530 of the Code of Civil Procedure is replaced hy the follo'ring: "530. If the confession of judgnuMiit is not accepted, the plaintiff must, within a delay of thirty days aft?r the serv- ice uiK)n him by the detendant of [I copy of the confession of judgment, give notice to the defendant that the confasslon of juilgnieut is not acic>pted. After such notice, the case is proceeded with in the or- dinary manner ; and, if the plaintiff does not obtain more from the court than he would have had upon the cx)nfession. he is not entitled to more costs than if the confession Off judgment haidi [been ac- cepted. In default of the plaintiff giving the notice, the confos- o Mi slon of jwlgmont is deoiried to l>4? jKX'C'pted, and tlio defon «Iant may also insour of Quoboc, for tlie pilotiijje of v<»ssolis. " — .'i IJdir. VIL, chap. r)r>. 639. The first paragraph of article (kjO of the .said Code is replaced by the followinu: 639, The sak' of movuitl^le property under seizauro is ad- vertised, ill the Islaml of Montreal, i)> a notiw' stating minnnurily the names of the parties, the mature of tlie ef- fects, and the phice, day and hour of sale, inserted In Frenoh in ,i uewsiMipor piibHslKHl in that laruguage in the <*i!ty of Atontreal aner pu- !>lisjied in Freneli and in one j)U!i>lished m Mn,^lish 'n tb^ locality, and, if, there is only- one newspa|)«'r h\ the locality or all Jire pjiblisbed in the same lanj^uaj^e, to publish the notice In both lanffu;i{?es In the sjiine nst a copy of the noti<'e \n his of hie aPter the [Hiblicn- tion."— <'. Ediw. VII., chap. 42, sec. 3. Article 81 d of the CfHlr of (llvil Procedure is replaced by the foUoioiui} : "816. If the t-o-:te«tation of the report, or of the rank of the collocations, or of any collocation, isi niaintain(Ml witihout belnf? opim)S(h1 by any party, the court. In its die- eretion, awardij costs against one of the parties in the cjuse or a^^jiinst the mass. The contesting; party has, iMiW't'vtjr, in )vll K-as^s, t.lua r'jjfht to b<^ colhKiated for his costs out of the moneys levied, or, if tlu' ie<)nt.<"st:ition benefits some ('^'editors only, out of tlic moneys (omln^ to sm'h <'nMlit(»rs, saving to the credi- tor, who is prejudiced by such <•() location, iiis i'i;cl»t to de- mand subroj^ation aj^ainsit the I)arty conih'mned to pay them."— (;:i Vict., chap. 42. 105^9. Article 1()2t) of the said (.'ode is amended h]f re- placinf/ the second clause thereof bjf the folU^wino : "Except in the Island of .lontnsal, and in the cities of Qiii(b(y', Three Riven;, Sh<'r- brf>oke, St. IIya<'ln;tibe ane read and i)ostelc is sitnatt^l. on a Sunday immediately af- ter mor.ninj? servi<'e ; if there is no siw'li s<»rvlce, it Is suf- ficient to UH'rely j)ost the no- tice. "—C Ediv. Vll., chap. 42. sec. \. 1041. Article 1(U1 of the said Code is replaced hy the following : 1041. The cxiHTts are three in nmnlver, and are iipjreed upon by the parti<'H; neA-'er- i ! i I 1 ' ( : \ theless if the parties consoDt or if tlio judge tliiDJi.^ proper by reasou of the nature or situation of the property to be divided, only one need be named." — G LJdio. VII., chap. 42, sec. 5. 1048. Article 104S of the said Code ix amended by re- pl(ici)uj pariffjrapJi 2 thereof l)y the follaioing : "2. Moreover, if the im- moveables are situated in the Island of Montreal, by being inserted in Frendi in a news- paper published in iliat lan- guage in the city of Montreal, and in Knglish in a newspaper publis'ilied in that language in the city of Montreal; if the immoveahles are situated in tlie city of Quebec. Tliree Rivers, Sherhrooke, St. Ilya- cinthe, or Sorel, or in the town of St. John's, by being inserted in a newspaper pub- ')lished in French and in '>ne I)uil>lisih'ed in English in the locality, and, if there is only one newspaper hi the locality or all are published in the same anguage, in both lan- guages in the same news- pa pe ; and, if the immoTeahle are situatetl in a parish other than those contained in the jDbo e-mentioned localities, by bei ig read alond and posted on the third Sunday before the day on which i:he licita- tion is to takf» place, at the door of the churcih of the parish in which the immovea- bles are situated, immediately after morning service, or, if there ia no church ai the most public place in the locality. If there is no servic,'^ it is sufficient to merely i)ost the notice."— Edw. VII., chap. 42, sec. G. 1049. The foUoirinrf article is inserted in- the Code af Civil Procedure after article 1041) : 1049f/^A:s 8oon as the no- tice prest,'ribed by Article 1047 has ])een ])u'l>lished. the party puiblishlng such notice must send a i)rinted copy thereof in a registered letter to the reigistrar of the regis- tration division in which the immoveable affected by tVe oruer in licitation is situat- ed : and the registrar must give notice thereof to the par- ties interested in the man- ner prescribed by the Civil Code. **The omission to give siuch notice does not invalidate the procedings, bi:t the person in default is responsible for all damages wiiich may remi>jt therefrom." — 5 IJdiv. VI I. chap. 30, sec. 8. 1069, Article 1069 of the said Code is amended hy re- placing all the words preced- ing the word : ' ' newspaper ' ' m the seventh and eight lines of paragraph 2 hy the follow- ing : 8 2. ^Moreover, if the immo- veable is situated in tL»e Is- land of Montreal, by bein^ in- serted in French in a news-( paper pnblished in that lan- .!?uage in tlie city of Montreal, and in Enjjjlish in a newspaper ^>ulvlished in that lan^ua^e in ;he <'ity of Montreal; If the innnoveahle is situated in the city of Quel>e<', Three Rivers, Sherbrooke, St. Hyaciuthe or Sorel. or in the town of St. John's \yy bein;^ inserted in a iiewsi)aper published in Freneh, and in one published in En^'lish, in the locality, and, if there is on^y one newspaper in the locality or aid are pub- i»lished in the same lanj^uage, in both lanjjjiiages, in the same," — (J Edw. VII., chap. 42. sec. 7. 1069. Thf following article is inserted in, the Code of Vivil Procedure after article 1()09 : 1069a. As soon as the no- tice prescribed by Arti<:4e 10G9 has been publisshed, the ap- plieant for confirmation of title must send a printed copy thereof in a resistei'ed letter to tlie registrar of tlie re- gistration division in whicli the immoveable affected by the pnxceedings in confir- mation of title is situated, and the registrar niiust give notice thereof to the parties interest- ed! in the manner presicribed by the Civil Code. "TJie omission to give such notice not invalidate the proceedings, but the pe:*son In default is responsible for all damages which may result therefrom." — 5 Ednv. VII., chap. 30, sec. 9. 1126. Article 1120 of the Code of Civil Procedure is amended by replaciny the words \ ^'except, however, the judicial iwwcrs conferred npon the prothonotary in the al>sence of a judge," in the fourth, fifth and sixth, lines of the second paragraph, by the words: ''liowever, the ju- dicial i)owers conferred upon the prothonotary in tlie absen- cie ot the judge can not be exercised by tlie clerlv of the circuit court, except by the clerk of the circuit court of the district." — 03 Vict., chap. 43. The folloicing article is in- serted in the Code of CivH Procedure, after article 1147: *'1147«. If. within seven days of the judgment, or at any time before the execution, the defendant deposits with the I'lerk of tlie court the portion of his salary or wages liable tt) seizure under par- agraph^Tl of article 59!). and, at the same time, produices a declaration untler oatli setting forth the amount of such sal- arj' or wages, as. well as the name, occupation and place of business Jt the person who I 9 I Ill pay« the same ard the time when the siime are payable, and oonthiues to deposit such portion «o seizable at each term of payment until full payment of tlie judgment, no seizure by ^arniishment can be issued aj^ainst such defendant to seize such salary or wages. A similar procedure shall be followed by the defendant whenever he changes his em- ployer or the conditions of his engagement. This declaration may be contested in the same manner, and within the same delay as the dec^kiration of a garnishee. Eight days after any suoh deix)sit, the clerk of the eoairt pays the? amount thereof to the plaintiff if there are no other claims. The clerk of the court must keep an alpha- betical list of the defendants who have made such declar- ations. The other creditors may, within eight days of such de- posit, fylc there cLaims duly sworn to in the record of the case, ana must give notice to the parties interestiMl. The <'lerk of the court, after collm'ating the plaintiff for ]\\>i costs in the s'lit, distrib- utes rateably amongst the cre- ditors the sum to be divided and determines, in a sum- mary manner ai.d without <*ost. the amount coming to eiich, which he pays to them. ' ' — 3 Edw. VII., chai). 57. 1313. Article 1313 of the Couc of Vivil Procedure is amen led by inserting after the word: "made", in the fifth line, the words: '*as are also secretary - treasurers of munioipalities and clerks of cities with whom are regis- tered declarations of birth im- der the provisions of article 5;ia of the Civil Code."— ii Edw. VII., chap. 3!), sec. 2. 1342. Article 1342 of the Code of Vivil Frocedure is amended by adding the fol- lowing paragraph thereto : • ' In the event of the refusal or inability to ai-t owing to absence or otherwise of the subrogate tutor, established by the tutor's affidavit, the «e^*ond expert is apix>inted by a judge of the Superior Court on the advice of the family council to which the eubrogite tutor must have been sum- moned in the manner i)re<^- cribed by article 1381." — 1 EdiD. VII., chap. 37. Article ISol of the Civil Code is replaced by tne fol- lowing : ''1351. The sale must be made judicially in presence of the tutor and suuro'gate tutor or in the absence of the latter if he lias been sujnmon- «'d in accordance ,vith article 1381, or in presence of the er publisibed in that Inngiiage in the Citj^ of Mon- treal, and in En;;lisb in a newspaper published in tliat language in the City of Mon- treal ; and, when the immo- veaibles are situated In the city of Quebec, Three Rivers, Sherbrooke, St. Hyacinthe or Sorel or in the town of St. John is, by irLsertin,g suicb not- ice, at the latest fifteen days before the sale, in a news- r)ap(^r published in French, and in one published in En- glish, in the locality ; and, if there is only one newspaper in the locality or bath are published in the same lan- guage, by inserting it in both languages in the eJame news- paper; or" — 6 Edw. VI I., chap. 42. sec. 8. "1357. Article 1357 of the said Code is amended by add- ing the following thereto : ' ' In the event of the refusal or inability "jto aeb throusgh absence or otherwise of the sul)rogate tutor, established by the tutor's affidavit, it Bhall su)ffii*e that the petition be presented by the butor alone, provided a duplicate thereof has been served uix)n the sub- rogate tutor with a notice of the place, day and hour at which it will be presiented. The day of the notice is one clear day when tlie tutor resides^ at a distance of less than fifteen miles from the place where the petition is to be presented with a further delay of one day for every additional fifteen miles." — 1 Ed\w. VII., chap. 39. 1361. Article 1301 of the Code of Civil Procedure is amended by adding thereto the following clause: "A duplicate of such report and the proceeRDER*s Chambers, itreal, May, 1900. rAHLE C HHHEV |HAl'. I. Decli [I. Pow( Sectii [I. Jurisc ^^ Rules 'I! 1 V. Acti< |VI. Mod( D ■ i: TABLE OF CONTENTS. ?AMI,K OF CoNtOHDANCK 19 , lUUtEVI ATIONS 29 FIRST PAKT GENERAL PROVISIONS lUAl'. ART. I. Declaratory and Interpretative Provisions 1 [I. Powers and Jurisdictions of the Courts Section I. General Provisions 40 " II. Court of Queen's Bench, sitting in Appeal. 42 '* III. Superior Court and Court oi Review 48 IV. Circuit Court 54 V. Commissioners' Court 59 VI. District Magistrate's Court , 61 VII. Justices of the Peace, Recorder's Court and other Inferior Jurisdictions 63 VIII. Supreme Court of Canada, and Exchequer Court of Canada 67 IX. Her Majesty in Her Privy Council 68 II. Jurisdiction of Judges in Chambers 70 V. Rules of Practice 73 ■ B TI 9RMEF pii \. C, signij 0. C. 1,§1.... 1,§2..., 1,§3..., 1,§4. .. 1,§5,6.. 1,§7 ... 2 2, §6.... 3,§1.... :^,§2.... 4 5 6 7 Q.. '....'.'. 10 11 12 |13 14, § 1, 2 . 14,§3.. . 14, §4.... 15 lie 117 118 19 [20 1 20a ■' 121 22 [23 TABLE OF CONCORDANCE BETWEEN THE ORMERAND PRESENT CODES OF PROCEDURE. C. signifies the former Code ; N. C. signifies the present Code. 0. C. N. C. 1.§1 11 1, §2 12 1, §3 13 1, §4 14 1,§5,6.... 15 1,§7 15,§3 2 7 2, §6 8, §1 3,§1 8, §1 3, §2 8, §2 4 17 5 i 5, § 5 ° \ 18 6 18 7 18 V' 19 9 20 10 21 11 22 12 76 13 77,§1 14, § 1, 2 . . , 78 14, §3 79 14, §4 80 15 87 16 82 17 113 118 215 ,19 81 20 105 20a 114 !21 3,4 22 88 123 83 O. C. N. C. 24 9 25 31 26, §1 5 26, §3 107 27 39 28, §1 48 28,§2....| 4^1 29, §1,2.. <^ 74 i 75 29, §3 38 29, §4 37 30, § 1 23 30, §2 25 30, §3 26 30, §4 27 30, §5 29 30, § 6 30 30a, §1,2 1 27 30a, §3,4. 28 31 I ^ 32 91 33 93 34 { »* 35 96 36 97 37 100 :W 103 39 102 40 98 O. C. N. C. 41 101 42 104 42a 210 426 212 42c 213 42d 211 43 117 44 ( 45< 118 46 i 48 121 49 122 50 123 52 124 ( 513 53 < 514 i 522 54 125 55 126 m 127 57 128 58 130 59 131 6a. 139 61 140 62 i ^^ "^ 1 141 63 142 64, §1 143 64, §2 144 m 138 66 132 67, §1,2.... 133 67, §3 136, §2 f ■ 20 TABLE OP CONCORDANCE. Ill V m O. C. 68, §1.... 68, §2, 3., 69 70 71 72 74 75, §1,4.. 75, §2....^ 76 77 .... 78 79 80 81 82.... 83 84, §1. 84, §2. 85 86 87 88.. .. 89 ( 90) • • 91, §1. 91, §2. 92 93 94 95 96 97 98 99 101 102 103 104 105 106 N. C. 136.§1,3 . i:^6, § 4 137 134 147 129 148 149 980 981 9a3 988 994 1003 1009 .... 151 .... 152 .... 153 .... 2.36 ... 519 .. .151 .... 154 .... 161 84 85 .... 86 .... 162 .... 163 .... 34 .... 532, § 1 .... 532, §2 • } 532, § 1 107. 112. 113. 548 527 528 529 530 531 155 159 160 157 158 156 155 164 166 165 170 O. C. N. C. 114 171 115 172 116 174 117 516 118 517 119 176 120 i 1^"^ ^^ \ 177 121 178 122 183 123 184 124 185 125 186 126 187 127 188 ( 167 128 -I 180 ( 181 129 182 130 190 131 167 132 168 133 169 134 189 135 164 136, § 1 173 136, § 1, 2, 3. 196 137 197 ,oQ / 198 ^^ \ 200 139 198 140 205 141 / '-^^^ **^ t 206 142 204 143 207 144 \ 1^5 ^** \ 101 145, §1,2... 208 145, §3, 4.... 209 147 191 ^^ 1 214 149 215 150 216 151 217 152 218 153 219 154 220 155 221 156 220 O. C. N. C.I 156 222 157 223 158 224 159, § 1 225 159, § 1, 2, 3. 236 159, § 4 519 160 22a 161 22() Ift*^ 227 lU 228 m] 239 167 230 169 231 170 232 172/ ^^ 173 234 174 158 175 235 176 237 177 238 179 239 180 240 181 241 182 242 183 243 184 244 185 245 186 246 187 247 m} 248 190 249 191 250 192 251 193, §1 252 194 253 195 254 196 255 197 256 198 257 199 258 200 259 201 260 202 261 203 262 204 263 205 264 206 265 220 220 TABLE OF CONCORDANCE. ^1 C. N. C. I ( 286 :ii 3«0 t:\ 361 !j, § 1 362 24. §2, 3, 4.. 363 ( 287 io < 364 { 367 ,.. ( 360 '^'' \ 366 27 :365 2S diVJ li) 368 275 369 W 370 / 293 \ 295 m 296 17 294 39 r 355 ^-^ \ 419 10 356 II 357 2 358 ;;^ 293 it 297 i5 298 J() 299 17 300 i8 301 J9 303 326 '^ t 317 )la 286 ( 314 1-^ < 315 i 318 53 302 54 313 •n 221 5t5 322 57 323 326 K) 324 314 n 319 >2 320 13 344 O. C. N. C. 26:3 349 264 -f "^ ^^ \ 351 265 349 266 3^ 267 327 208 328 289 329 270 339 271 340 272 34' 2^^ { 333 274 331 275 332 276 334 277 330 278 338 279 342 280 335 286 336 282 310 283 304 285 355 288 353 290 355 293.. 350 294 351 295 :352 300 373 301 374 302 375 303 376 304 377 305 378 306 379 307 380 308 386 309 382 310 384 311 385 312 386 313 387 314 388 315 389 316 390 317. §1, 2.. { 418 317, §3.... I \l 318 420 O. C. N. C. 320 520 295 320a ^ 346 347 348 320(t 3206 295 321 391 322 392 323 393 324 394 325 395 326 396 327 397 328 398 329 399 330 400 331 401 332 402 33:^ 403 334 404 :t35 405 336 406 337 407 3;« 408 339 409 340 410 341 411 342 412 343 413 344 414 345 415 :^6 416 347 417 3-.8 421 349 422 350 423 352 424 353 425 354 426 355 428 356 429 357 430 360 432 361 431 362 433 363 4:^5 364 486 365 434 366 437 22 TABLE OF OONOOttDANOH. i'li' ;il ii J, 1 i; I O. C. N. C. 'MVl 4:hh •M\H mi •MM 440 :}70 441 :ni 442 372 443 373 444 :i74 445 375 440 370 447 «'7 ■■ 1 ^ 37H 445) 379 450 i:89 451 381 452 'A82 454 :K^ 455 3H4 455 'Mi { 45-7 3H7 } ^^^ 388 458 ;W9 459 390 453 391 400 392 401 893 402 394 403 395 404 390 405 .OQ7 / 40(5 398 407 30t) 408 399« 470 402 408 403 471 404 472 405 473 400 474 •407 475 408 / 470 *"^ i 477 409 477 410 479 411 480 412 481 413 482 414 48:i 415 484 416 485 O. C. N. C. 417 4m 418 487 419 4S8 420 I -^^ ^'^^ \ 490 { HH 42(J < to [ 505 427 50(J '^''^ ^ 497 429 ) *"' 4:^0 507 43 n 432 > 508 mi) 434 200 4:i5 207 ms 2<{8 437 209 438 270 439 271 440 272 441 273 442 274 448 371 450 275 451 270 452 277 453 278 454 279 455 280 450 281 457 282 458 283 459 284 400 285 4(51 110 402, §1 115 402, §2.... < 194 ( 534 403 10 464 32 4(55 33 406 35 467 36 407a 119 ^<« I ^ «» { i? O. C. N.C. 46}Vt 5:w 470 rm 471 542 472 541 473 544 474 545 475 543 470 547 477 518 *^« iSli ilSa 55(5 479 554 480 557 481 558 482 55;^ 48;i 1175 f 11(53 ^^^"^ ^1105 111(58 ^^ iiioo 4a5 11(54 486 i 11^5 *** IllOi) 487 1168 ^^ {ffij ^«» 111?!! 490 1173 494 52 495 \ ^1^ *^^ U190 496 53 497 119(5 498 1198 499 1199 499a 1192 500 i l^^l *^ ( 1202 500a 1202, <• 501 1201 502 i 1^^^ ^^ tl204 503 1205 504 1206 505 1177 506 i ll"^^ ^ tll79 TABLE OP CONCORDANOB, 23 N.C.B. C. N. C. ... r>;» Kt 1182 ... r>:«j Ks iiKi ..542 Ki) 1184 .. 541 ■() 1185 .. 541 Bl 11P6 .. 54.") m-> 11S8 .. 54:i m\ 550, §1 . . 547 ■,. ( 550, § 2 .. MH ff" \ 560 ) 540 ■]('. 561 I 550 Hit 562 .. 556 Bi.s 563 .. 554 m{) 564 .. 557 ■l'O 565 •• 558 Ril.... 566 . 553 ■22 567 •1175 ■'ja 568 fll6;i 124 560 J 1164 m.a 570 ^ 1165 Ko 571 U168 m>] 572 I 116:^ 128 573 UI66 Ku 574 .1164 Ko 575 ill65 El r>76 U160 K32 577 •1168 Mi?. 578 i 1171 mu 570 11172 fc-, 580 ill70 bi 581 1173 K;{7 582 .1173 Kis 58:^ 52 b) 584 1180 Kto 585 1190 m\ 586 53 K42 587 .110(} K43 588 1198 K44 580 il90 ■ ( 600 1192 k45 <^ 601 1191 ■ I 602 1202 mu) 605 I202om-I7 607 1201 K4,s 608 1203 fci8a 609 1204 K49 610 .1205 KoO 611 1206 Ksi 612 1177 B53 613 1178 K54 614 1179 »o.5, §1, 2.... 617 O. C. N. C. 555, §3 615 555, §4 616 ^^ I 5II0 556a 1080 557 500,§12 558 50J) 559 620 5i 1G?8 886t 1019 88%' 1020 886A: 1018 886Z 1021 886w 1022 886n 102:^ 8860 1024 887 1150 888 1152 890 15, §1 891 1153 802 {\\U 893 1156 894 1158 Wa (lis 898 1^60 899 1161 - i 'I- t« )^i' 26 TABLE OF concordance; 11 r:'r ;; ili.. i;! O, C. N. C. 899a 1162 900 1025 901 1026 902 1027 90:^ 1028 904 1029 905 10:3() 906 1031 907 ^ ^"^ '^' 1.1032 908 io:« 909 1034 910 10:^5 911 1036 919 1037 920 1038 921 1039 922 1040 923 1041 924 1042 925 1043 926 1044 927 1045 928 1046 ^^^ (l048 930 1048 931 1049 932 1050 933 1051 034 1052 935 1053 936 1054 937 1055 938 10.56 939 1057 940 1058 941 1059 942 1060 943 1061 944.. 1062 945 106;i 946 1064 947.... 1065 948 1066 949 1067 950 1068 951 i ^^^ "°^ \ 1069 952 1069 953 1070 O. C. N. C. 954 il^'l ^""^ 11072 955 1072 956 1073 957 .1074 958 1075 959 1076 960 1077 961 1078 962 1079 963 1080 964 1081 965 1082 966 1083 967 1084 968 1085 969 108() 970 ...1087 971 1088 972 1090 973 1091 974 1092 975 1094 976. 1095 977 10J)6 981 mm 986 1001 987 /^^^''^ ^^' (1202 988 1103 989 1104 990 1106 991 1107 992 1108 993 1109 994 1110 995 IIU Wi) 1112 mi f ^78 ^^ I 979 ( 980 998 < 981 [ 994 (jqq / 982 ^^ (983 1000 V to V 983 1006 j 1007 984 1008... (^ J. C. 1009. to . 1015. \ N. C. 986 1016... . .... 987 1017 .... 988 1018 .... 989 1019 .. . 990 1021 .... 991 1022 992 1023 . ..993 1024 ... 995 1C;25 / 996 • ■ UOOl 1026 ....1000 1027 ... 998 ■C'^8.... . .. 996 ^ .... 999 1030 ... 997 1031. .. .... 1003 1033 .... 1006 1033H ^ 970 : 971 1033n . . 971 1034 .107 1035 .... 1008 lo:^ .... 1009 1037 ...1010 1040 .. . ....1114 1041 1115 1042 .1116 1043 ....1117 1044 .... ...1118 1045 ....1119 1046 ...1120 1047 . ..1121 1048 ....1122 1049 .... 1123 1050 .... 1124 1051 . ... 1125 1052 1114 TABLE OF CONCORDANCE. 27 C. N. C. yy'A ....... 54 ),')4 55 i.w 50 )o() 57 .-^7 58 ^^•'^ \ii;30 <'^'' \1135 1261 1192c. 1193.. 1194.. 1195.. 1196. . 1197.. 11&8. . 1199. , 1200., 1201. 1202., 1204., 1205., 120(5., 1207., 1208. 1209. 1210. 1211. 1212. 1213. 1214. 1262 1263 1264 .... 1205 1266 1267 12(58 1269 1270 1271 1272 V^73 1274 1273 1275 ... .1276 1277 1278 1279 1280 1281 1282 i2as 1215a 61 12156 I "^ ^"^^""^ /1284 1215c 1285 1215rf 1286 1215c 1287 121.5/ 1288 1215.7 1289 1215/1 1290 1215i 1201 1216 63 1217 64 1218 &j 1219 66 1220 1292 1221.. H, v.... 1293 m' TABLE OP CONCORDANCE. ijM 't,' ■111', It O. C. N. C. 1222 1294 1223 1295 1224 1296 1225 1297 1226 1298 1227 1299 1228 1300 1229 1301 1230 1302 1231 1304 1232 1305 1234 1306 1235 1307 1236 1311 1237 1312 1238 1313 1239 ..1314 1240 1315 1241 1316 1242 1317 1243 1318 1244 1319 1245 1320 1246 1321 1247 1322 1248 1323 1249 1324 1250 1325 1251 1326 1252 1327 1253 1328 1254 1329 1255 1330 1256 1331 1257 1332 1258 1333 1259 11334 12(50 13:^5 1261 1336 1262 1337 1263 1338 1264 1339 1265 1340 1267 1341 1268 1342 1269 1343 1270 1344 1271 i;^5 1272 1346 1273 1347 1274 1349 O. C. N. C. 11^75 1350 1276 1352 1277 1354 1278 1355 1278a i:i56 12786 1357 1278c 1358 1278d 1359 1278e 1360 1279 1362 1280 1363 1281 1364 1282 1365 1283 1366 1284 1367 1285 1368 1286 1369 1287 1370 1288 1371 1289 1372 1290 1373 1291 1374 1292 1375 1293 1376 1294 1377 1295 1378 1296 1379 1297 1380 1298 1381 1299 1882 1300 1383 1301 1384 1302 1385 1303 1386 1304 1388 1305 1389 1306 1390 i307 1391 1308 1392 1309 1393 1310 1394 1311 1395 1312 f ^^^ ^"^^"^ 11396 1313 /l^ ^"^^"^ \1397 1314 1387 1315 1399 1316 1400 1317. 1401 1318 1402 O C. N. C. 1319 1403 1320 1404 1321 1405 1322 1406 1323 14C7 1324 14C« 1325 1409 1326 1410 1326a 1411 ^^ {\fA 1326c 1413 1326d 1414 1326« 1415 1326/ ( 1326(7 < 1416 iy26>i ( 1326J 1417 1326A: 1418 1326/ 1419 1326r?i 1420 1326n 1421 i;^27 1422 1328 1423 1329 1424 1330 1425 1333 1426 idHi 1427 1335 1428 1336 1429 1337 ia08 1338 1309 1339 1310 1341 1431 1342 1432 1343 1433 1344 1434 1315 1435 1346 1436 1347 1437 1348 1438 1349 1439 1350 1440 1351 1441 1352 1442 1353 1443 1354 1444 1359 6 1360 1 1361 2 R. O. ELLOT..| . R. Q . AL. . .... C. . • • • . I. G. F. , P !. P. C.F ;. p. G... ). p. L... 'AN. S. C ).S. N. E ). s .Q.. 3. C A.. 3N(4. J, A Eno. R... [. & L. . . [.L. C. f.A C. J .. N.... LORANGE [. L. R. )OUTRE. . ^s. R. I \. Y. 0. ABBKEVIATIOISrS. I. R. O General Rules and Orders regulating the Prac- tice and Procedure in Admiralty cases in the Exchequer Court of Canada. Ottawa, 1893. Jellot Procedure Civil de Geneve, par P. F. Bellot. B. R. Q Rapports Judiciaires Offlciels de Quebec, Cour du Banc de la Reine. ;al Code of Civil Procedure of California. C Civil Code of Lower Canada. I. C. F Code d'Instruction Criniinelle Fran^ais. P Code of Civil Procedure {the new Code). P. C. F. Code de Procedure Civile Fran^ais. * P. G Loi sur la Procedure Civile de Geneve. 1 P. L Code of Civile Procedure of Louisiana. 'an. S. C. R Reports of the Supreme Co^rt of Canada. S. N. B.. Consolidated Statutes of New Brunswick. ;. S. Q Rapports Judiciaires Offlciels de Quebec. Cour Superieure et Cour de Revision. C.A Decisions of the Court of Appeal. Jx(4. J, A., 1873. .English Judicature Act, 1873. Extt. R English " Rules of the Supreme Court, 1883,' as consolidated in the "Annual Practice, 1889/' pp. 213. & L Holmsted & Langton, Ontario Judicature Act and Rules of Practice. |H. L . C House of Lords' Cases . A Bill relating to Judicial Re-organization, 1893. L C. J Lower Canada Jurist. I'.N Legal News. ^GRANGER Commentaircs sur le Code Civil. VI. L. R r. . .Montreal Law Reports. )ouTRE Gonzalve Doutre, Les Lois de la Proc^aure Civile dans la Province de Quebec. S. R. O Nova Scotia Rules of the Supreme Court, Order. Y. C Code of Civil Procedure of New York. I i .! . ' I:v 30 ABBREVIATIONS. Ont. J. A Ontario Judicature Act (R. S. O., c. 44). Ord. 1667 Ordonnance de 1667. O. C Former Code oi Civil Procedure of LoweJ Canada. Procl., 22nd June, 1867— Proclamation of that date, bringing thJ Code of Civil Procedure of Lower Canada! in force. Q . L. D Quebec Law Digest (Stephens). Q. L. R Quebec Law Reports. R Rule. E. C. C. S Report of the Commission for the CodificatioiJ of the Statutes of Quebec, 1882. R. L Revue Legale. R. P. C. S Rules of Practice of the Superior Court foj Lower Canada. R. P. O. Consolidated Rules of Practice of the Supreni^ Court of Judicature for Ontario. R. S. N. S Revised Statutes of Nova Scotia. R. S Revised Statutes of Quebec. II. S. B. C Revised Statutes of Lower Canada. R. S. C Revised Statutes of Canada. V. c. s Statutes of Quebec— Victoria, chapter, section. | V. (C.) Statutes of Canada— Victoria. 3S And following {articles, sections or pages, a\ the case may be). A ji.i 1' I 1 '! AOi 1 M r «* M AMENDMENT. 63 VICTORIA, 1900. 04. Article 04 of the Code of Civil Procedure is amended by inserting, after paragraph 4, the folloiving : "5. Before the court of the place where the contract wa^ made." li IW THE ODE OF CIViL PROCEDURE OF THE PROVINCE OF QUEBEC. FIKST PAUT GENERAL PROVISIONS CHAPTER I ?ciaratory and Interpre- tative Provisions The laws concerning pro- jriure and the rules of practice I force at the time of the com- into force of this Code are a'ogated : — In all cases in which this b(i«; contains any provision \\\nix, expressly or impliedly it etlect ; t III all cases in which such VH or rules are contrary to or Lonsistent with any provis- of this Codp, or in which [press provision is made by [is ('ode upon the particular ittor to which such laws or lies relate. Nevertheless as regards pro- Bdings, matters and things fiuiing at the coming into rce of this Code, or rights of Ipeal and limitatioQB as to substantive rights exi.-.ting an- terior to such coming into force, and to which its provisions could not apply without hav- ing a retroactive effect, the provisions of law which, with- out this Code, would apply to such proceedings, matters, i things, rights and limitations, i remain in force and apply to I them ; and this Code applies j to them only in so far as it i coincides with such provisions. I The rules as to evidence con- I tained in this Code apply to causes, matters and things done or pending at the time of its coming into force. — I^ew in 2icirt. O. C. 13fiO ; Loran- per, C. C, p. 152 ets.; Attorney- General vs. Silleni, 10 H. L. C 704. 2. If in any article of this Code, founded on the laws existing at the time of its pro- mulgation there be a difference between the English and the i ! H-; • . 1 :,i' f 2 INTERPRETATIONS. ■=!!: ^1 1 ii. '^ "■■}■■ i ] French text, that version shall prevail wliich is most consist- ent with the provisions of the existing laws on which the article is founded. If there be any such diiference in an article changing the existing laws, that version shall pre- vail which is moat consistent with the intention of the article ; and the ordinary rules of legal interpretation shall apply in determining such in- tention.— O. c. lani. :i. Whenever this Code does not contain any provision for enforcing or maintaining any right or claim, any proceeding adopted which is not inconsist- ent with law or the provisions of this Code is received and held to be valid.— O. C. 21, in part, (nnoidfd. 4. All rules and i)rovision8 concerning procedure are inter- preted with reference to each other," and in such a manner as to give them all the effect in- tended. — O. C. 21 nmended, Civil Code, arts. 11, 12, 14, 15. 5. The words, terms, expres- sions and enactments enumer- ated in the declaratory and in- terpretative provisions of Article 17 of tlie Civil Code and of Articles 12 to 86, inclusive, of the Revised Statutes, wher- ever used in this Code, are in- terpreted in the manner there- in specified. Whenever the following wo'ds, terms and expressions are used in this Code, or in any amendments thereto, they are construed in the manner here- inafter mentioned, uniess the context otherwise requires : 1. The words : " Code of Civil Procedure," mean the present Code ; 2. The words : Revised Sta- tutes," mean the Revised Sta- tutes of the Province of (^a bee ; '.i. The words : " other I'ro mces of Canada," mean tl Provinces of Canada other ilii the l*rovince of Quebec, ni include the Territories ; 4. The words: "Court Review." mean the SupeiiJ Court sitting in review ; 5. The word: "judge," nvn\ the chief justice, judge assistant-judge of the sdo Court ; 0. The word : " prothon tary," means the prothononu of the Superior Court, or t^ clerk of any other courl which the provision is ai)i)lij able ; 7. The words : " oflice of til Court," mean the oflice of tS prothonotary, or of the clerk any court to which the pri)v| ion is applicable.— iV^'jr part. O. C. 20 in jiart, ■") jiart. 6. The forms contained the appendix to this Code, others to the same efiect, aj valid and sufficient, when us^ in the cases to which the> intended to app'^.— O. C. IS amended. 7. The following days non-juridi( il : 1. Sundays ; 2. New Year's Daj'^ ; 3. The Epiphany, Ash W nesday. Good P'riday, East^ Monday, the Ascension, Saints' Day, The Conceptii and Christmas Day ; 4. The anniversary of tl Birthday of the Sovereign, the day fixed by proclamati^ for its celebration ; n. The first day of July, the second day of themoiulij the first is a Sunday ; 6. Any day appointed by roy; proclamation or by proclar NON-JUEIDICAL DAYS. lOM of the Governor-General or the Lieutenant-Governor as a ly of general fast of thanks- Iviiig, or as Labor Day.— C. 2, amended II. S. 5854 ; V.,c. 40; R. S. C, c. 1, s. 2, , 7 ; 50 V. (C), c. :iU. Civil \i)(h\ arts. 17, s. I'l. 18. If the day on which any- ling ought to be done is or be- )m('s a non-juridical flay, such Jing may be done with like JV'ct On the next following tridical day. [This rule applies also to the Hum of writs and to sales bv Ithoritv of .justice. — O. C. [;i, amended R. S. 20. 19. Whenever a person is luinioned to appear on a day [cd, neither the day of service )r the terminal day is counted computing delays for sum- lining. k'lays continue to run upon milays and holidays ; but if a jlay expires on a Sunday or a )liday, it is of right extended the next following juridical Plhe same rules apply to all |her delays in procedure. — C. 24, amended, [lo. In reckoning delays for Badingor trial, the first day of fpt ember is deemed to be "the 5xt day after the thirtieth day June, and no party can be liged to proceed between [ose two days, without a spec- order of the court or a poge, except in the matters \umerated in Article 15. |Any days between the thir- ;th (lay of June and the first September are, however, koned in the delay of eight lys fixed by Articles 1196 and 32. — O. C. 463, amended; [§§ ♦), 7 ; 317, § 3 R. S. 5898. ill. The place, time and dura- )n of the sittings of the diflfcr- ent courts are regulated by particular statutes.— O. C. 1, in part R. S. 5853. 12. The court may, according to circumstances, shorten the terms thus fixed, or it may pro- long them by adjournment, either from day to day, or to any subsequent day or days before the following term ; and at any sitting held in virtue of such adjournment the court may hear and determine all causes, matters or tilings brought before it, whether such causes were begun before or since such adjournment.— O. 0. 1, in part, amended ; R. S. 5a53. 13. In the absence of the judge who should preside over the court, the prothonotary may adjourn the court to a sul)- secjuent day during the term, or, upon the order of the judge, to any day or days out of term. — O. C. 1, in part, amended ; R. S. 5853. 14. The courts cannot sit on non-juridical d«vys.— O. C. 1, in part, amended ; R. S. 5853. 1.5. The courts cannot sit be- tween the thirtieth day of June and the first day of September, and in addition they are not obliged to sit between the thirty-first day of August and the tenth day of September, or between the twentieth day of Decem-ber and the tenth day of January, except, in eitherca.se, as regards : 1. Actions arising from the relation of lessor and les.see ; 2. Trial and judgment by default to appear in ordinary and in summary matters ; 3. Trial and judgment by default to plead in sunmiary matters, unless the appearance is accompanied with an affidavit that it is filed in good faith, and i i ' \ f IH ;'l- ORDER IN COURT. 't!i j Si hi: ■ V. tm 1 Si without intent to unjustly delay the proceed Ihkh ; 4. Judgments upon confess- ion of judgment ; 5. ProceedingH concerning corporations and public ofHces ; 0. Oppositions to tnarriages ; 7. Applications for writs of Habeas Corpus in civil matters; 8. The proceedings governed by Articles 713, 7?3, V49, 750, 7«1, 762, 7(«, 7H2, 792, 80(>, 849 to 977 inclusively ; 9. District Magistrates' Courts ; 10. Commissioners' Courts for the summary trial of small causes * 11. The Court of Queen's Bench ; and 12. The District of Gaspe, of Saguenay, and of Chicoutimi. The prothonotaries have, in respect of the matters herein- above enumerated which are within their jurisdiction, the same powers during vacation as they have at any other time. O. C. 1, in part ; 817, in part, amended R. S. 5853 ; Nolan vs. Dastous, 4 Q. L. R. 335. Supra, art. 10. 16. The sittings of a court or of a judge are public. Nevertheless, the judge may order in writing that they be held in camera, if a public hearing would be prejudicial to good morals or public order.— New. C. P. C. F. 87; O. C. 84 ; Bellot 611. 17. Persons present at sit- tings of the courts or of judges must remain uncovered and in silence.— O. C. 4, amended. 18. Any person who, during the sitting of the court or of the judge, or wherever judges are in the exercise of their functions, disturbs order, utters signs of approbation or disapprobation, or refuses to withdraw or to obey the orders of the court or I judge or the admonitions of tlip I officers acting under its or liis ; authority, may be condemned at once to a fine or imprison ment, or both, according to tlie disctetion of the court or the I judge. -O. C. 5, 6, 7, a)nen(iiil\ C.C. 2273; R. C.C.S., art. 24(1; I C. P.C. F. 88 ss.; Cal. 1209 ; N. Y, ' C. 8 ss. ; Infra, art. 834. I lO. If the disturbance h\ I caused by a person discharging ! any function before the courtij he may, in addition to the pun ishment imposed in the preced- ing Article, l)e suspended fromj i such function,— O. C. 8. 20, Courts or judges miiy,| in all cases Vjrought before them, accord in r to circumstances, even of " own motion, pro I nounce .^as or reprimands, and suppress vvritings or del clare them libelloiis.— O. C. amended. ! 21.— The judge may appoint! I an interpreter and allow hiiiiaj j reasonable compensation, which! forms part of the costs of thel !suit.-0. C. 10. 22. The judge may requirel an oath when it is deeniedl necessary.— O. C. 11, in part. 23. The judge, the prothonl otary, or a commissioner authl orized for that purpose, hasal right to administer and receivel the oath whenever it is requiiedl by law, by rules of practice, orl by order of a court or judgel unless such right be restricted! by some provision of law.— ().C.| 30, in part, amended. 24. The court has the suniel powers as a judge upon mattenj assigned to the latter. — Neir. 25. The judge of the Sul perior Court may, in the dis^j trict in which he discharges hL« functions, appoint, by onv or| COMMISSIONERS. more commlssionN under the s«';il of the court, as many per- sons as he tlnd.s necessary, as ((•iKinissioners to receive aMi- (liivits therein, to be used in any cdurt in anv district of the pro- vince— O. C. JK), in part. ilO. The chief justice and any other jud^e of the Superior Court, and, in the case of the (l(')ith of tlie chief iustice or of Ills iil)sence from the Province, any two judjjfes of the 8ai(l Court may, by one or more com- niissions unaer the seal of the Court, appoint as many persons as they think necessary, within the limits of any of the other provinceH of Canada, as com- inissicnerH to receive attidavits therein to be u-ed in any court in the Province.— O. C. 30. n pa I't. 27. The Lieutenant-Governor ill Council may appoint com- petent persons, residinc; in any country outside the limits of Canada, as commissioners to receive affidavits for use in any court of the I'rovince, or neces- sary for any deed or document ito l)e carried into execution or to have its civil eflect in the Province. — O. C. 80. 8Ua, in \part, amended R. S. 5859. 2S. Any commissioner named I under the three preceding Arti- ji'les is designated as "Commiss- j loner of the Superior Court for Itlie district of , {or the Province of Que- Ibec. as the case may be.)" — New. jO. C.30«, in part. 29. Affidavits received by I such commissioners have the [siune force as if they had been [received in open court — O. C. j(3(), in part, 30a, in ^JW^ [amended. Infra, art. 1127. 30. Like force and effect are [given to all affidavits received before a commissioner author- ized bv the l..ord Chancellor to administer affidavits in Eng- land ; or before a notary public, under his hand and official seal ; or before the mayor or chief maglstnite of any city, l)orough or incorporated town in Great, Hritain or Ireland, in any of Her Majesty's colonies, or in any foreign country, under the common seal of such city, bor- ough or town ; or before any judge of a superior court, in any of Her Majesty's colonies or dependencies ; or before any consul, vice-consul, temporary consul, pro-consul or consular agent ol^ Her Majesty, exercis- ing his functions in a foreign country.— O. C. 30, 20 Vic, c. 41. ill. Whenever a record or document is required by law to be transmitted from one court to another, or to a difFerent place, the transmission nmst be effected through the post office or by express oy the prothono- tary, and the party requiring It is bound to advance the charges. For any delay caused by the neglect of such party to pay such charges, he is deemed to be in fault. With the consent of all the parties the record may be trans- mitted by any other means, but by the same officer.— O. C. 25, amended. iJ2. Two or more judges of the Superior Court, or of the Ciicuit Court, discharging their duties in the same circuit or district, may, and must, when- ever the despatch of business requires it, sit at the same time and at the same place in separ- ate apartments in or out of term ; and each of such judges has jurisdiction for hearing and determining all causes anu mat- 14. 6 GENERAL PROVISIONS. i fkf. tj'.j i5i *i ji I' ters submitted to him, and has the same powers as if he were the only judge sittine; in such place.— O. C. 464, amevtled ; R.S. hm). 3a. Whenever there is not at the chief place of a district any judge who has jurisdiction in a matter, or whenever the judge is unable to discharge his duties for any rcnson whatsoever, the prothonotary may perform his duties in cases of evident neces- sity, or where by delay a right might otherwise be lost or a wrong sustained. Any order or judgment ren- dered by the prothonotary may be revised by the court at its next sitting, or by any judge subsequently present in the dis- trict, ])roviaed that the party complaining ftlos within shree days at the office of the court an exception stating the grounds upon which the revision 's de- manded, accompanied with a deposit fixed by the rules of practice. The decision of the court or judge, setting aside the order or judgment of the prothono- tary, causes things to be placed in the same state in which they would have been if the order or judgment had not been ren- dered. — Ncr, in part. O. C. 4a5, R. S. 5900. Infra art. 1126. 34. In the absence of special provisions, the delay of service of any writtexi proceedir»g is at least on* clear (lay. — Neir. 35. Whenever the sherifT is interested or personally con- cerned in any suit or action, any writ or other proceeding which ought to be executed or served by him must be addressed to and served or executed by the coroner of the district.— O.C. 436, amended. 30. If the sheriff is also cor | oner, the prothonotary, or liiv deputy, acts in the place and stead of the sheriff, as thontrli the writ or proceeding had bccni addressed to him personally. O. C. 467, amended. 37. The Lieutenant-Governor! in Council nuiy make, modify, revoke or amend the tariffs ol fees payable to prothonotarios, clerks, sheriffs, coroners and criers, in accordance with ilie provisions of Articles 2710, 2711 and 2712 of the Revised Statutes. Any officer or other person receiving any other or greater! fees or emoluments than ;irel specified in such tariffs tor tlnl dischaige of the duties anf^ ser vices therein mentioned, hi liable, except where it is other I wise provided, to a penalty o(l eighty dollars for each offence.F recoverable by civil action be] fore the Circuit Court, and pay able one half to the Crown, andl the other half to the partTJ prosecuting.— O. C. 29, in pnrf.i i R. S. 58.58. 38. The judges of the Su perior Court, or any ten or morel of them, may make any taritrjl of fees for examiners and othcrl officers appointed by the 8u[ perior Court, whose salaries arej not by law fixed by the Lieuj : tenant Governor in Council and all such tariffs must bel promulgated in the manner pre! scribed for rules of practicc-l O. C. 29. Infra, art. 75. 39. Exceptional provisioi concerning certain matters aiulj proceedings in the districts ofl baguenay, Chicoutimi, Gaspe,| and the Magdalen Islands arej contained in the Revised ."^taj tutes. — O.C. 27 ; R. S. t^iifi 2342, 2368 to 2405, and 5714, 'rM THE COURTS. CHAPTER II |N)\vcrH and JuriHtlic^tioii ol' the Courts. I. Gen kr a i. Pro v i - SIGNS 40. II. Court ok Qukkn's Bench, Sittino in Ap- peal 42. III. Superior Court an Court of Review 48. IV. Circuit Coukt 54. V, Commissioners' Court 59. VI. District Magistrates" Court Ol. VII. Justices of the Peace, Recorder's Court and other Inferior Juris- dictions 63. IVIII. Supreme Court of Can- ada, AND ExCHJjyUER Court of Canada 07. IX. Her Majesty in Her Privy Council 08. section i. General Provisions. 4(). The courts vvhich have urisdiction in civil mattery in [the Province are : 1. The Court of Queen's jBpiich, sitting in aj)iTeal ; '1. rhe Superior Court ; a. Tlie Circuit Court; 4. The Commissioners' Court; 5. The District Magistrates' Court ; ('\ The Court of Justices of pw Peace ; 7. The Recorder's Court : S. The Excliecjuer Couit of Canada, whicli is a court of fed- eral constitution. TIk' jurisdiction of ilie Court |of Queen's Bench, of the Su- )erior Court, of the Circuit 'onrt, and of the Court of Jus- ic'os of the Peace is general and covers the whole Province ; the jurisdiction of the Commission- ers' Court and of the Recorder's Court is limited to certain localities. - AV'jr. R. S. 228<). 41. The following tribunals also exercise jurisdiction by way of appeal from the civil courts of the Province : 1. The Supreme Court of Can- ada ; 2. Her Majesty in Her Privy Council.— A'ec chief phice of each district, the Circuit Court has original jurisdiction, to the exclusion of the Superior, Court, but subject to appeal : 1. In all suits wherein the sum claimed or value of the thing demanded amounts to or exceeds one hundred dollars, but does not exceed two hundred dollars, saving the exception contained in the second paragraph of the pre- ceding Article ; 2. In all suits for fees of office, duties, rents, revenues or sums of money payable to the Crown, or which relate to any immovable rights, to annual rents or such like matters whereby rights in future may be bound ; even though the amount claimed be under one hundred dollars.— O. C. 1054 ; R. S. 5094. Supra, arts. 44, 49 ; infi^a, art. 1135. 56. The Circuit Court may take cognizance, upon evoca- tion, of any suits brought before the Commissioners' Court for the summary trial of small causes, in the cases secondly enumerated in the preceding Article.— O. C. 1055. Infra, art. 1268 et s. 57. The Circuit Court has jurisdiction in the same manner as the Superior Court, over iudgments rendered within the limits of the district or circuit for which it is held, by the Commissioners' Court men- tioned in Article 56, or by Justices of the Peace, by means of certiorari wherever it lies. O. C. 1056, am. Infra, art. 1207. 5H. The Circuit Court has also an appellate jurisdiction over judgments rendered by the Commissioners' Court or by Justices of the Peace, for taxes, assessments or penalties, iiu posed under the Municipal Code.-O. C. 1057 ; R. S. 5995. SECTION V Commissioners' Court 59. The Commissioners Court exercises an ultimate jurisdiction : 1. In suits for the recovery of assessments, not exceeding twenty- five dollars, imposed for the building and repairing of churches, parsonages and churchyards ; •2. In all suits purely personal or relating to movable property, which arise from contracts or quasi-contracts, wherein the sum or value deujanded docs not exceed twenty-five dollars, and the defendant resides : (a). In the locality of the court ; (b). In another locality, but within a distance of fifteen miles if the debt has been con tracted in the locality for which the court is established ; or (c). In a neighlwuring locality in which there are no conmiis- sioners, or in which the commis sioners cannot sit by reason of illness, absence, or other in ability to act, provided such locality is in the same district within a distance of thii ly miles. It has no jurisdiction in the cities of Quebec, Montreal, Three Rivers and St. Hyacinthe, if there are other courts hnv ing jurisdiction to take cogniz THE COURTS. 11 ! ! fiuce of the matter in issue. — 0. C. 1188, lllK); R. S. 6011 ; 53 Vic, c. 62, s. 1. fiifra, art. 1253 et s. (l6. It has no jurisdiction in suits for slanHer, or for assault or battery, oi rehiting to civil St .It us, paternity or seduction, or lying;-in expenses ; or in suits for the recovery of any fine or p(Miiilty whatever.— O. C. 11S9, E)t the sum or value of tive hun dred pounds sterling.— O. C, 117H,«»«.; Civil Code 17. Infra, art. 1249 et s. OO. Causes adjudicated upon I in review, which are 8usceptil)Ie of appeal to Her Majesty in I Her Privy Council, but the ap peal whereof to the Court oii Queen's Bench is taken away by Articles 4J^ and 44, may nevertheless be appealed to Herl Majesty.-O. C. 117H« ; R. S. 6009. lessors and lessees, and masters and servants. <')0. C. 1217, am. Infra, art. 1292 et s. ft5. The Harbor Commission ers also exercise a civil jurisdic- tion in matters relating to the shores of the River St. Law- rence and of tlie rivers flowing into it, and also v\ ith regard to the wages and indenmities due to pilots.— O. C. 1218, atu. Infra, art. 1292 et s. 60. The extent of the juris- diction of these special courts and the manner of proceeding before them are regulated ])y the "tatutes creating or relating to them, and in certain respects by the practice therein fol- lowed.— O. C. 1219, am. SECTION VI n Supreme Court of Ca.iada, and Excheqiier Court of Canada. 67. The extent of the juris- diction of the Supreme Court of Canada, and of the Exchequer Court of Canada, and the pro- cedure therein are regulated by special statutes.— R. S. C, c. 135, s. 2 ; 54-55 Vic. (C), cc. 25, 26, 29. SPXTION IX Her Majesty in Her Privy Council. 68. An appeal lies to Her Majesty in Her Privy, Council from final judgments rendered in appeal by the Court of Queen's Bench : 1. In all cases where the mat- ter in dispute relates to any fee of office, duty, rent, revenue, or any sum of money payable to Her Majesty ; 2. In cases concerning titles to lands or tenements, annual (•) For special jurisdiction of the Recorder's Court for the city of Montreal, ee 62 V. c. 58. ' CHAPTER III Jurisdiction of Judg^es in| Chambers 70. The judge in chambersj has jurisdiction over such mat ters as are assigned to him byl law or by the Rules of Practice, | — New, in part. 71. The court may, of its own! mo'jn, or at the instance of out of the parties, and \x\nm such conditions as it deems proper, adjourn to chambers any matter which can thus be] more conveniently tried and de termined ; and the judge may,! for the same reason, adjourn any matter in cnambersto open court.— xVf jr. R. P. O, 548. 72. Decisions rendered l)yl the judge in chambers ui)on matters within the jurisdiction assigned to him have the samel force and effect as judgments of j the court, and are in like man ner subject to review, apptal, and other remedies against I judgments.— A^fit'. R. P. O. f)49,| Infra, art. 537. CI Rule 73. Rul( [able in oni districts, a I effectual e visions of made : 1. For tl Bench, by [judges tht meeting co I pose by the Court ; 2. For th I the Circuii two-thirds Superior C semoled foi IChief Just ! Court. Neverthe [which ther [they may m only for th( district for pointed.— i^ CK lAotions ai 70. Who |a thing or [denied him Wore the pro 77. No p [action at la [interest the Such inte RULES APPLICABLE TO ALL ACTIONS. 13 CHAPTER IV Rules of Practice. 7i5. Rules of Practice applic- able in one or more circuits or [districts, and necessary for the I effectual execution of the pro- visions of this code, may be made : 1. For the Court of Queen's Bench, by the majority of the Ijudj^es thereof present at any ' meeting convened for that pur- I pose by the Chief Justice of the Court ; 2. P'or the Superior Court and I the Circuit Court, by at least tvvK-thirds of the judges of the Superior Court, in meeting as- semoled for that purpose by the [chief Justice of the Superior Court, Nevertheless, in districts in I which there are circuit judges, they may make rules of practice, only for the Circuit Court of the district for which they are pointed.— iVfir, in part. 'e ap- O. C. 29 ; C. C. 1177 ; R. S. 5858, in part. 74. The Rules of Practice must not be incompatible with the provisions of this Code.— O. C. 29 ; 1177, in. part. R. S. 58.58, in part. 75. The Rules of Practice come into force ten days after their publication in the Quebec Official Gazette. They must, immediately after publication, be copied by the clerk of appeals, the prothono- tary or the clerk, as the case maybe, into the register of each court, respectively, in the cir- cuits or districts for which they were made. The clerk of appeals, the pro- thonotary, or the clerk, must, moreover, post in the office of the court a notice stating that new rules of practice have been copied into the registers, and mentioning when they will come into force.— Neir in part ; O. C. 29 ; R. S. 5858. SECOND PART. RULES APPLICABLE TO ALL ACTIONS. CHAPTER V [Actions and Parties to Ac- tions. 70. Whoever seeks to obtain la thing or a right which is [denied him must sue for it be- |fore the proper court.— (). C. 12. 77. No person can bring an I action at law unless he; has an I interest therein. Such interest, except where it is otherwise provided, may be merely eventual.— AV*/* in part. O. C. 18 ; R. C. C. S., art. 288. 78. No person can be a party to an action, either as claimant or defendant, in any form what- ever, unless he has the free ex- ercise of his rights, saving where special provisions apply. Those who have not the free exercise of their rights must be represented, assisted or author- ized in the manner prescribed % |l^';-; 14 RULES APPLICABLE TO ALL ACTIONS. II \ w: ¥ifii ■ j j i, '■' f ':;. m '.:^^i !•.''■ 1 ^f y li I'} it • i by the laws which regulate their particular status or capacity.— O. C. 14, §§ 1, 2. Infra, arts. 81 174. 1090, 1101, 126:^"; Civil CorJf, arts. 0, 36, 170, 178, 180, 210, :^)l, 320, 323, 3:M, :i43, 351. 79. All foreign corporations or persons, duly authorized under any foreign law to appear in judicial proceedings, may do so before any court in the Prov- ince.— O. C.'14,§3. Infra art. 170 ; Civil Code 27, 28. 80. Any person who, accord- ing to the laws of a foreign country, is authorized to repre- sent a person who has died or made his will therein, leavmg property in the Province, may also appear as such in judicial proceedings before any court in the Province.— O. C. 14, § 4, Civil Code, arts. 25, 009. HI. A person cannot use the name of another to plead, except the Crown through its recog- nized officers. Tutors, curators and others representing persons who have not the free exercise of their rights, plead in their own name in their respective qualities. Corporations plead in their corporate name.— O. C. 19. Sujrra, art. 78 ; /n/Va, art. 552 ; Civil Code, art. 3.57. 82. No judicial demand can be adjudicated upon unless the Earty against whom it is made as been heard or duly sum- moned.— O. C. 16. CHAPTER VI Mode of Appearance of the Parties and Klection of Domicile. 83. Any party to an action or to any other judicial proceed- ings can only appear and plead in person or through the min- istry of an a Ivocate. Notaries may prepare the proceedings" specified in the Tenth Part of this Code, and submit the same to the judi^e or to the prothonotarv, and may even sign in the iiame of tlie petitioners all petitions nee**, sary for such proceedings.— O. C. 23 ; R. S. .5887. Infra, art. 1273. 84. Every party appearing in person is held to have elected domicile in the office of the I court in which the appearance is filed. -O. C. 84 ; R. S. 5868. 85. Whenever one of tiiel parties has, since the com mencement of the action, hftj the Province^ or has no do'.ni cile therein, all orders, rules, notices or other proceedings! may be served upon him at the office of the court, provided the sheriff or bailiff alleges in liis return that he has made fruit- less endeavors to find him, and that, to the best of his belief, he is not within the limits of the province.— O. C. 84; R. S. 5868. 86. Advocates and attorneys i are bound to elect domicile within a distance of one inile| from the building in which tlie court is held, and to have the same, as well as any subsequent change thereof, registered in the office of the court, in the| register kept for that purpose. In default of making such| election of domicile, or of regis tering the same or any change! thereof, or in case the domicile is found closeii, such advocates and attorneys are held to have elected domicile at the office of the court, where all services upon them may be validly] made. ~0 vs. Gingn c: Joinde H7. Sev may be jo provided palible or they Keek lilvi' natur not prohib provision, susceptibl* trial. A credit debt for t for the sev diderent Infra, a RULES APPLICABLE TO ALL ACTIONS. 15 madc.-O. C. 85, am. ; Lemay vs. Gingras, 12 Q. L. R. 17. CHAPTER VII Joinder of CauseH ol* Action 87. Several causes of action iiifiy be joined in tlie same suit, provided they are not incom- I)atn)le or contradictory, that they seek condemnations of a liki' nature, that their joinder is not prohibited by some express provision, and that they are susceptible of the same mode of >,. triiil. II A creditor cannot divide his (lol)t for the purpose of suinjj; for the several portions of it by ditrerent actions. -O. C. 15. Infra, arts. 99, 177, § 6, 1006. CHAPTER VIII Actions Against Public Officers 88. No public ofticer or other person fulfilling any public func- tion or duty can be sued for damages by reason of any act done by him in the exercise of his functions, nor can any ver- dict, or judgment be rendered ajjainst him, unless notice of such action has been given him at least one month before the issue of the writ of summons. Such notice must be in vvrit- nig ; it must state the grounds of the action and the name of the plaintiff's attorney or agent, and indicate his office ; ; and must be served vipon him i personally or at his domicile.— 0. C.22, am. Infra, arts. 97, 429. CHAPTER IX ProcoedinKS in Forma Pauperis HO. Except in actions for pen- alties or for damages caused by slander or libel, the judge may permit a party to plead in forma pauperis, and order the oflicers of the court to aflbrd him their services without any remuneration. Such permission, neverthe- less, does not exempt the party from paying the government tax or the costs of bailitt's. Such party, if he fails in the action, is not exempt from con- denmation to pay costs to the other party ; but no advocate or attorney who represents any such party may receive from him any fee or other compensa- tion for hi' services, without rendering himself guilty of contempt of court. -O. C am. ; R. S. 58(K) ; R. C. C. art. 107. Civil Code, art. 16. 90. Permission to plead formd jntiiperis is granted up- on a petition, supported by affi- davit, establishing that the petitioner has a good ground of actio.i or a good defence, and that he has not the means necessary to make the disburse- ments. The judge may allow the pro- duction of adverse affidavits, the cross-examination of per- sons who have already made affidavits, and the oral examin- ation of new witnn.sses.— O. C. 81. 32, am. 91. Such leave may be re- voked by the judge upon pi'oof that the party has since become able to make the necessary dis- bursements, or that he is guilty of improper conduct or of wil- Sl, S., in 16 RULES APPLICABLE TO ALL ACTIONS. ilte;' I'!, i ii ; :' S |ir:|l I Ul-i ..H-.l ful and unnecessary delay. — Nfw in prtrt. O. C. 32, am. ; N. Y. C. 4(52. »2. If the party against whom proceedings are taken in formal pauperis incurs costs up- on any incident in the suit, he cannot be compelled to pay the same before final Judgment, and such costs may then be compensated with those in- curred by the opposite party.— Netr. Oii. If a partjr proceeding in fortnd pauprrm obtains judg- ment in his favor, the other party may be condemned to pay costs, including those of the officers of the court who are, then entitled to an execution to obtain payment thereof from such party, by means of dis- traction. No more than one execution can, however, l)e issued for all the taxed costs remaining un- paid ; it is issued at the in- stance of 1 he prothonotary, or of any party interested, and the moneys are returned into the office of the court, and are paid, free of charge, to the parties thereto entitled. — O. C. 33, am. CHAPTER X Place of Instituting Actions 94. In matters purely per- sonal, other than those men- tioned in Articles 96, 97, 98, 103 and 104, the defendant may be summoned : 1. Before the court of his domicile ; and in the case of election of domicile for the execution of an act, before the court of the domicile so elected ; 2. Before the court of the place where the action is per- sonally served upon him ; 3. Before the court of tlio place where the whole cause of action has arisen ; 4. Before the court of tlif jlace where the whole or part if I's property is situated, whin le has left his domicile in tlic :*rovince, or has never had sui (i domicile, but has property therein, and the cause of action has not arisen therein. — Xnv in part. O. C. 34 ; R. S. 5801 ; Civil Code 85 ; 52 Vic, c. 48 ; C. S. L. C, c. 83, s. 61. Infra, arts. 170, 1105; Civil Code, arts. 27, 79 et s. 95. A fire or life insurance company may be summoned l)y the insured, his heirs anci assigns, for rights arising out of a fire insurance policy, before the court of the place in which the insured movables or iin movables were, and for rights arising out of a life policy, before the court of the place in which the insured had or has his domicile.— O. C. 34, § 2 ; H. S. 5861. 90. In an action for separ ation from bed and board, or for separation of property only, the defendant must be sum moned either before the court of the domicile of the husband, or, if he has left his domicile, before that of the last common domicile of the consorts.— O. C. 35, am. Infra, arts. 1091, 1099. 97. Any action in damages against a public officer ny reason of an act done by him in the exercise of his functions must be brought before the court of the place where such act was committed. — O. C. 36. Infra, art. 429. 98. In actious in warranty RULES OF in-EADINO. 17 Iftiid in continuance of suit, tlie |(U'ft'ii(lants are summoned at jthc pliice where the principal jiiction was l)rou^ht, whereso- |evefore the court of the domicile of one of the defendants.— O. C. ;i8, (itn. 104. If the sole judge ad- ministering justice in any dis- trict is liable lo be recused, or if he must be a party to the suit, the action may be brought in one of the adjoining districts, the grounds of recusation or disability being alleged in the demand ; and if these grounds are ins\itticient or not proved, the court may order the case to be sent back to the court before which it would have been brought in the ordinary course. -O. C. 42. Infrii, arts. 287, 288. CHAPTER XI General Rules of Pleadinj;;. 105. In any proceeding it is sufticient that the facts and conclusions be concisely, dis- tinctly and fairly stated, with- out any special form being necessary, and without enter- ing into ar.iZument. Such statements are inter- preted according to the meaning of words in ordinary language. New Jn part. O. C. 20; R. P. O. 89<). lOO. Dates, numV)ers and quantities may be denoted by figures.-A'f?/' ; Emf. R. 200. 107. Any foi'm of reference to an act or part of an act is 2 t : ■;«■ 18 HIILBH OF I'LEADINO. '^r': IC'' 1 1 ! . i ' f 1 ] I ' .P ill k I' ii m ' '■'■■! ^ Hurticiont if it is intellipjiblc— O. C. 2«J ; R. S. 15. lOH. Tlie iillegatioiiH ar. Admissions and denials are made, and explanations Riven, in so far as practicable, by referring: to tbe parafi;raph containing the fact admitted, denied or explained. Repetition of an allejj;ation in subsefjuent plead infi;s is made by a Himi>le reference to the paragraph of the former plead- ing containing the allegation repeated. Neir. R. P. O. 101. 1 lO. Every fact which, if not alleged, is of a nature to take the opposite party by surprise or to raise ati issue not arising from the pleadings, must be expressly pleatled.— AVtr ; Lug. i?. 211. Infra, art. 59. 111. Every fact alleged by the opj)osite party, the existence or truth of which is not ex- pressly denied or declared to be unknown, is luld to be ad- mitted.— O. C. 144, (on. 113. Every affidavit most be divided into j)aragraphs, numbered consecutively, and be in the first person. The names, occupati'^n and domicile of the person making the affidavit must be inserted therein. The date u hen and the place where it was sworn must be inserted in the jurat.— Neir. A. 11. O. 95, 90, 97. 113. The court cannot adju- dicate beyond the conclusions, but it may reduce them and grant them only in part. — O. C. 17. Infra, art. 522. 1 14. The unconstitutionalitvl of any statute; of the Fiuv ince or of Canada cannot U\ pleaded befon* the courts oil original jurisdiction or of ap peal unless the party plead inj the same has, at least eij,'li;| days before the day fixed furl the hearing, given to the .\t[ torney-CJencral notice of thfl <|Uestion which he inte'.d.s tol raise, with sulhcient infoniiaj tion to enable him to uniUrl stand the nature of his preioi; sions. Upon such notice, the Atrorj ney-General may intervene lit the case on behalf of the Croun,| and take issue in writing (ir| such questions. The judgimiii of the ci.iiri nmst mentiv)n such inteiAtnl tion and such conclusions, which it renders judgment if the Attorney-(Jeneral were party to the mi if. A coi)y of siK h jiidgmeiit forwarded wit bout delay to rliJ said Attorney (ieneral.-O. (J 20(1 ; R. S. 5Sr)(). lir». Except where it otherwise provided, every \m\ ceeding of the contestutioif must be served upon the oppo site party ; otherwise it is iiol deemed to be regularly tiled, -| Nrw in part, O. C. 402, s. 1 . Supra, arts. H4, 80. 1 1 0. When any writ or pijd whatever requires to be hc vtif out of the district, the scrvid may, in the absence of any pifj vision to the contrary, beDiadj either by the slu'rilT'or a b.iiliJ of the district In which thfl court is held, or by the slicrii or a bailid' of the district i which such service is tK made ; but no more costs laij be tallowed in the former an than in the latter, unless tliJ Judge (IctMns i'liis I executi( PROCEDURE IN THE STTL'BRIOR COURT. ID judge otherwise orders if he property and to attachments (ict'uiH proper. nefore or Hoizures after judg- TliiH proviHion applies alHo to i ment.— O. C. 401 ; U. S. 58})7. executions against movable | Intra, arts. 11.'37, 12.59. T H I II D P A K T . PROCEDURE IN THE Sr PERIOR COURT. CHAPTER XI [ Suiiimoiis 1 17. Every action before the jSiipcrior Court is instituted by [nicuis of a writ of summons, in itht' name of the Sovereign, Itiiivinfij the exceptions contained liri this Code, an«l other cases (provided for by special laws.— 1 \H. This writ of summons lis drawn up either in French or jin Kiiglish, is signed and at- Itesrcd by the prothonotary, and |is issued by the latter upon the aitten requisition of the plain- iir.-O. C. 44, 45, 40, am. \ 1». In cases of urgency, the'writ may be issued outside )Hii'e hours, and even on a Sun- [tlay or holiday, without. judicial Btfinips thereon, provided the iniount of such stamps be de- posited with the officer issuing tlu' writ, who must affix the Stamps upon the tiat as soon as possible.— O. C. 407a, am.; R. S. B901. 130. The writ of suuimons remains in force, while un- served, during six months [rom its date ; but the judge or )rothonotary may, before the txpiry of such delay, upon its ' ^ing established by affidavit )r IjailiflTs return that service was impossible, continue it for another period of six months, and so on from time to time until service is made.— iVeir. R. i'. O. 2:jH. Infra, art. 150. 121. Saving the particular exceptions hereinafter men- tioned, writs of summons may be directed to the sheriff or to any bailiff of the district in which such writ issues, and may be by him served in such district, or in any other dis- trict, or they may be directed to the sherid'or to any bailitr of the district in which such writ is to Ije served, comnjand- ing him to summon the de- fendant to appear before the court within the delay and at the place therein mentioned. If there are several defen- dants residing in different dis- tricts several writs may issue, directed in the same manner. -O. C. 4H, R. S. 58(53. Supra, art. 110. 1122. The writ must state the names, the occupation or qual- ity and the domicile of the i plaintiff, and the names and the present or last known resid- ence of the defendant. The Attorney-General for Ca- nada, or for the Province, is sufficiently designated by the I I >>■- I'i 20 WRIT AND DECLARATION. \ i'''"' M li ■•m;. ] 3.-- \\':' M. ij Kit V-' '•:u-; i ill ; i I III !: M ! : I' name of his oflfice whenever h«^ pleads on behalf of the Crown. Married women and widows may be described as defendants unaer the surname of their husband, or of their deceased husband, adding the words : "wife of" or " widow of/' re- spectively, and the names or a sufficient designation of the husband or of the deceased husband In actions upon bills of ex- change, promissory notes or other private writings, whether negotiable or not, it is suffic- ient to giv'e the initials of the Oiristian or ffrst names of the defendant, such as they are written upon such bills, notes or instruments. If the defendant has no domi- cile, residence or place of busi- ness in the Province, and his names are uncertain or un- known, it is sufficient to de- scribe him so that he may be clearly ideiitifled, provided that the writ is served upon him personally. When .a corporate bodv is a party to the suit, it is sufticient to insert its corporate name and to indicate its principal place of business. If a commercial partnership, having its principal place of business outside the district, is not registered therein, it may be sum.moned by its firm name, with mention of the place where such principal place of business is situated ; but the judgment rendered against it is then exe- cutory only against partnership property.— A^^tr in part. O C. 49 ; R. S. 5864 ; R. P. O. 817. Infra, arts. 185, 174, 513 et s. 1162. 12J1. The causes of action must 1)6 stated in the writ or in a declaration annexed to it. In actions upon deeds of sale or notarial obligations, bills of exchange, promissory notes, private writings, or for ac- counts, it is sufficient to insert in or annex to the writ a de claration drawn up in accord ance with the forms contained in Schedule A in the Appendix to this Code. Such declaration must l)e signed by the attorney for the plaintiff", or by the plaint itf liimself if he has no attorney. - Neiv in part O. C. 5(). See Forms in Appendix. Supra, arts. 105 et s ; infra, arts. 174, 513 et s. 134. If the object of the do mand is a thing ceitain, it must be described in such a manner as to clearly establish its identity. If the demand relates to t lie | whole or part of a corporeal im- movable situated in a division where the official plan and book of reference are in force, it must be described in accordance i with the provisions of Article 216Sof the Civil Code. If it relates to a lot or part of lot situated in a locality wlurel the official plan and book of reference are not in force, it must be described with certain ty and precision, by mentioniug I Its nature, the city, town, vill i lajje, parish or township, street, 1 range or concession wherein it| i is situated, and also the lands conterminous to it ; and, if ii is' apiece of land known und«'ra| a particular name, it is sutli cient to give its name and its situation. If the demand relates to rentsi constituted for the redemption of seignorial rights, or to rights relating to any seigniory, thevj must be described accordinit toj the provisions of Articles ;)720| SERVICE OF SUMMONS. 21 to 5727 of the Revised Statutes. -O. C. 52, am.; C. C. 2168; N Y. C. 1511. Infra, arts. 174, 51.'} et s. 1125. No summons can be servotl on a Sunday or a holiday without the leave of the judge or prothonotary.— O. C. 54, am. Snptri, arts. 7, Hi). t'2i\. No summons can be Served before seven o'clock in the morning, or after even o'clock in the afternoon, with- out the leave of the judge or prothonotary. This provisl( aon does not ap- ply to cases of capias ad re- spciitatives of the successions of persons bavin i:: had property ill the Province, may, if they Imve an office or an agent in tlie Province or carry on busi- MP.-s therein, be summoned there, in the manner provided ill Article 140, and, if they have no such oftice, in tiie manner prrscril)ed in Article 141. If such companies, corjiora- tions or persons are domiciled or have their i)rincipal place of liusiness in any other Province of Canada, they may be sum- moned in the manner prescribed in Aiticle I'Sl.—O. ('. 04, «>«.; H. S. 5S05. Intra, art. 145. 144, Foreign comi)anies wiiith control, either as owners or lessees, any line of railway, of telegraph, or of telephones, extending to or passing through the Province, aiui which have 11(1 otlice, president, secretary, or jigt'Tit therein, are suflicient- ly sun iiioned by service made uiiDii any person in charge of a station, or of i. telegrajih or tei ;>honeoftice respectively, be- loiiLii' g to such companies or undei rheir control.— O. C. 04. am.; . P. O. 2()S. fnfn art. 145. It."*. The judge may, if cir- cumstances refpiire it, shorten or extend the delay mentioned in Art i( les KJO and 141, or order a mode of service other than that prescribed in those Articles and in Articles 143 and 144.— Xnr. C P. G. 54. 140. If the defendant fraudu- lently evades service of the sum- mons, the judge may, upon a return to that effect, prescribe whatever mode of .service he it8 155. The plaintiff, must, at the time that he returns llie writ, file in the office of the court the written proofs whiili he has alleged in support of hi> demand, together with a list or inventory of such exhibits. If he fails to do so, he cannot afterwards file them without giving notice to the opposiit party.— O. C. 99, 100, am. 150. An exhibit in blank, or a list of exhibits in which the d( iigatioji of any exhibit is not filled up, cannot be re ceived.— O. C. 105. 157. Until the exhibits have been filed in the manner herein- above prescribed, the plaintilf cannot proceed with his ?3. §4. Inscription in Law 191. Defence 196. Answer and Reply 19tt. Filing of Exhibits 20 1 . Rules Applicable to Defi-nces, Answers and Replies 202. III. Joinder of Issue 214. SECTION I Prelhnina rij Exceptio ns § 1.— rules common TO ALL preliminary exceptions 164. Preliminary exceptions must be urged by way of motion, of which notice must be given to the opposite party within three days from the re- turn of the action or the filing of the pleading to which they relate, saving the cases men- tioned in Articles 177, Para- graph 6, 178 and 181. Such motion must be pre- sented to the court as soon as it is possible to do so after the ex- piry of the delay to which the opposite party is entitled. The court may, when the motion is presented, allow either party to answer in writ- ing, and to adduce evidence, if necessary.— iVt'/r. O. C. 107. Supra, art. 9; infra, arts. 200, 1154. 165. The motion cannot be presented unless it is accom panied with a certificate from the prothonotary, of which notice must have been given to the opposite party at the same time as the motion, establish- ing the deposit in the office of the court of the sum fixed by tha rules of practice.— A'^gH'. O. C. 112. 166. All preliminary ex- « 26 PRELIMINARY EXCEPTIONS. II ! I I ceptions are ur^ed at the wame time, except in the case of Articles 177, Paragraph (>, 17.S and 181 ; but the declinatory ex- ception is first disposed of, and the other exceptions are tlien decided by the competent court.— New. O. C. 107. 1«7. At any time before judgment upon preliminary ex- ceptions, saving the cases stated in Articles 177, Para- graph 6, 178 and IHl, the plain- tiff may, if he thinks the ex- ception is tiled solely in order to retard the suit, reciuire the defendant, in writing, to plead to the merits, and may fore- close him if a defence is not filed within six days from the demand tliereof ; in which lat- ter case the court takes cog- nizance of no other issues than those raised upon the prelimin- ary exceptions.— O. C. 131, 128, 120, am. 168. If the defendant files Iiis defence, proof takes place upon all the issues unless the court otherwise orders ; and, if he succeeds upon the prelimin- ary exception, he may recover from the plaintiff the costs in- curred upon the contestation on the nurits to which he was forced under the provisions of the preceding article.— O. C. 132, am. 169. When the defendant has pleaded a dilatory excep- tion, which is afterwards main- tained, the foreclosure from pleading to the merits, obtained against him under Article 107, is without efFect ; but he is bound to file his defence within six days after the expiry of the delays granted upon his excep- tion, and, in default of his so doing, tne foreclosure holds good. If, upon being required to do so ])y the plaintilf, the defend ant has pleaded to the mei it\ he may, within six days aihri the .judgment maintaining lii defence or plead anew, without thereby incurring any costs : inl default of his doing so, lu- \^\ presumed to abide by the dt fence filed.— O. C. 138, am. § 2. — DECLINATORY EXCEPTI' i.V>| 170. A party summoned ht fore a court, other than tliatl which should hear the issiusl may ask that lie be referred tol the competent court, or that thel action be dismissed if there \i\ no such court. But if the defendant, upoiil filing his declinatory except ioiif deposits the sum claimed, ilwl judge must, instead of reltirf ing the case to the competeni| court, dismiss the action. Oi C. 113, am. ; C. P. C. F. 168. 16P;| C. P. G. 05. Supra, arts. 48, 54, et s. : Wl et s . 171. If, nevertheless, thtj court has no jurisdiction inl reason of the subject-matter ofl the action, the reference inayj be demanded at any stagt; ofl the case, and, if the referem e b| not demanded, the couri obliged of its own motion tol refer the case to the properj authority,— O. C. 114 am. 172. The court in declaring itself incompetent may aNv.irdl costs according to circum.'^tanf ces.— O. C. 115. § 8.— EXCEPTIONS OF Hs dens ficn-i 173. The defendant may, iiij case of Hs pe/ndens, ask hy J preliminary exception that tliej action be dismissed.— AVifl O. C. 136. |§ 1. KXCJ 174. T Ivoki' an jgroiinds i [forni, wh jprcjudice 1. Irreg Idechiratic 2. I II cap lor of the (i [i. Ahsei Iplaintitfo 4. Tlie f; |of the >''a contained ■iluratio: 5. Irregi )t)ject of 1110. Sn))ra, a 1101, 103, 10' [17, 118, 12; 175. In |writ or ser ition, whi( Jntail null ire not reii Supra, a 17«. Ir Iwrit or ser lation are v mce of th< failure to them witl scribed.- C |§ 5. — DILA 177. Th stay tlie su tion : 1. If the ( entitled for [ing an inve ling, vviieth( )!• in the ca JrojuTty, h, ' If the fight to der the plaintifl Bome precec PRELIMINARY EXCEPTIONS. 27 h I. KXCEPTIONS TO THE FORM 174. Tlie defendant may in- Ivokt' any of the following (groiuuls by exception to tlie Iform, whenever they cause a Ipn-judice : L Irregularities in the writ, Ideclaration or service ; 2. Incapacity of the plaintilV lor of the defendant ; [i. Abseiice of quality in the |pl;initiH'or in the defendant ; 4, Tlie fact that a statement lof tlic -auses of action is not contained in the writ or in the Jd 'cliiration ; i). Irregular description of the )bjcct of the demand.— O. C. 1116. Siij)r(t, arts. 74, 75, 70, et s. , KM), |101, !(»:{, 104, 105, 10(), lOS, 105), 110, [17, US, 122 ets. 175. Irregularities in the Iwrit or service or in the declar- latioii, which cause a prejudice, Mitail nullity only when they ire not remedied. — Netv. Supra, arts. ol3 et s. 170. Irregularities in the •rit or service or in the declar- |ati(in are waived by the appear- incc of the defendant and his failure to take advantage of them within the delays pre- Bcrihed.— O. C. Ill), am. 0. — DILATORY EXCEPTIONS 177. The defendant may Btay the suit by dilatory excep- tion : 1. If the delays to which he is entitled for the purpose of mak- ling an inventory and delii)erat- [iii};-. whether as heir or legatee, )r in theca e of comnmnity of property, have not expired ; '1. if the defendant has a right to demand security from tlif plaintiff, or the execution of Bonie precedent obligation ; >i. If the plaintiir contravenes the rule that the parties must remain in the" respective i)Osi- tions until these are changed by judicial authority ; 4. If the aefendant has a right to exercise a recourse in warranty against a third party ; 5. If the defendant has a right to demand th^i discuss- ion of the principal or original debtor ; 6. If the plaintitr lias joined in his action se^•eral claims whicli are incompatible or con- tradictory, or which do not seek condemnations of a like nature, or the joinder of which is jirohibited by some express provision, or which are sus- ceptible of diderent modes of trial ; and in such cases the de- lendant cannot be bound to answer the action until the plaintid" has decLared his option : 7. If the plaintiff does not re- side in the Province, and a power of attorney from him is not produced ; 8. If, in the case of an in- divisil)le right or claim, all the parties interested and whose presence is necessary are not made parties to the suit. — O. C. 120. Supra, art. 87; infra, arts. 521, 857. Civil Code, arts. (Mil et s. ; 748, 874, WM), 1342 et S., 1506 et s., 1520, 1554, 1570 et s., 1941 et s., VMi. 1, 10 ; infra, arts. 204, 1 155. § 3.— ANSWKR AND IlEPLV. lOH. Witliin a delay of six days tlie plaintitl" nmst answer a (lefence containinjj; new facts, and the defendant rnnst reply to an answer of liice nature. If sucli pleadings are not suHi cient to fully set forth tlie con- tentions of the parties, the judge may grant leave to file additional pleadings. Nen-. O. C. i:w, i:«), 14S. Supnt, art. U; /. a, arts. 204, 214, 115(5. 199. The judge may allow either party, ui)on such condi- tions as are deemed proper, to plead, by way of sup{)lementary defence or sn])plem('ntary an- swer, material facts which have arisen since issue joined.- iVnr. Cal. 4(>4 ; Jiounr, ^H'A. 200. Grounds of law against any defence or other pleading are urged by way of inscript i' m, in accordance with Articles 1!>1 to 195 ; and grounds in the na- ture of preliminary exceptions are urged by motion, in con- formity with Articles 164, 1H5 and 100. New. O. C. i;X. § 4— FILING OF EXHIBITS 2<)l. The provisions contain- er: in Articles 1.55 to 1(50 govern in so far as may be, the tiling of exhibits referred to in the de- fence and answers. If such exhibits are not tiled with such pleading, they can- not afterwards be tiled without the consent of the opposite party or leave of the judge. A judge may extend the de- lay for tiling the exhibits or written proofs.— AVjc in pari. O. C. 141. h\fn(, art. 20t). § 5.— RUI.KS APl'LHARLE TO DE FKM^ES, ANSWERS AND RKl'LIES 202. Each party must replyl specially and categoi ically to the allegations of the opposite party, either by admitting or denying them, or by declaring! thai he is ignorant of them. The party niay, nevertheless,! deny generally all such alb ^a| tions, but a general denial ix eludes any other defence, *r. ^Vv' Form, Schi'd. I). />< Ap- pnvlix. Svj)ra, art. 105 et s. 20;^. Any party who pl(a(i< payment, no\ation, reh;ist,| compensation or prescript ioiil may diaw up his {)lea in ac( onl ance w ith tlie forms contaiiicdl in Schedule I'] in the Appeii(ii\[ to this Code. Neiv. 204. When an amend nicntl to any pleading has been a! lowed, l!ie delay to answeri such pleading is reckoned tr()ni[ the day on which the ann iid ment is made and served, w ith out any demand of answeri being iiecessary.-O. C. 14i'. Infra, art. 518, et s. 2()5. After the exj^iry of tliel delay for filing a pleading, tliej party in default is by law Inie closed from doing so, uiil*"-- withtht consent of theo})p(!>i'd ])artv or leave of the judg< O. C: 140, am. 206. Such foreclosure ilo- not, however, take place w iili out an t)rder from thejudueiH the opposite party has not liled with his pleadings, in the man ner prescribed, the exhibits orl PLEAS TO MERITS. 31 written proofs upon which they Hie founded.— O. C. 141, am. Supra, arts 157,201. '207. When the defendunt is foreclosed I'rorn pleadin;^ tlie plaiiitifl' may proceed to ,i\n\p;- mvnt i.r parte.— O. C 143. Supra, arts. 15§3, 418et s.; 532 et >. '20H. The denial of a sij^na- tiirt' or of a material part of a bill of e\(hanj,;e, promissory note, or any other private writing oi '■; 32 INCIDENTAL PROOEEDINQS. .4 I "■•->M.' Ill ivl tion of a foreign court concern- ing such rxiiht.— O. C. 42b am.; H. S. 0802; 51 Vic, c. 42, s. 1. Civil Code, art. (J. 2121. Ill unvHction Hfrainst i corporal ion, anv service nuuie within another ^'rovince in con- formity witli the hiw thereof is conHidereanie form as an incidental (leiiifvnd, and must be serv(?d with tlie defence unless for iHUsesliown, tliejud^e allows it to l)e filed afterwards.— iVr/r hi 1,(1, -t.. O. C. 152. il 1 1). Issue is joined upon the incidental or cross demand in the same manner as upon the principal demand, and the con- testation is subject to the same ruh^s and delays.— O. C. 153, am. SECTION II Interventions 32(). Every person interested in an action between other par- ties may intervene therein at any time before judgment.— O.t;. 154, nm. ; 156. Infra, art; 237. 221. An intervention is made hy a declaration, in ordinary form, containing all the grounds wliicii justify the party in inter- vening.— 7V^?r. O. C. 155. 222. It cannot stay the pro- ceedings in the principal action unless it is allowed by the judge.— iVf'U'. O. C. 156. 223. When the intervention is ill lowed by the judge, the ac- tion is suspended during three diivs ; and, if the intervening parly fails within that period to have it served upon the parties iin the cause and to file a certifi. [cate of such service, it is held I not to have been filed, and Jias no elVect. The filing of the cer- tiJleate of the prothontary as to such default is e(|uivalent to a judgnumt dismissing the inter- vention. Service is made at the ofiice of the court upon parties not re. presented by attorney.— O. C. 157, atn. 224. Th<' proceedings are sub- ject to the same rules as the ac- tion during which they are made, and the delays for plead- ing are computed from the date of the service of the interven- tion.— O. C. 15M, am. 8ECTU)N III Improbution 225. Besides the action of improbation which may be brought as a principal action, a party in a suit may proceed by improbation against an authen- tic document produced by him, which he has asked to have de- clared null, or by the opposite party.— O. C. 15U ; 169, a)n. Infra, arts. 235, 2;J6, 1269. Civil Code, art, 1211. 22({. Incidental improbation is begun by a petition, praying that the party be allowed to proceed by improbation against the document therein designat- ed, and that the opposite party be held to declare whether he in- tends to make use of such docu- ment. The petition must, under the pain of nullity, be signed by the party himself, or by his attor- ney under a special power filed with the petition.— O. C. 161. 227 . The presentation of the petition must be preceded by a deposit in the ofiice of the court of a sum fixed by the judge, to meet the costs to be incurred, in whole or in part, in the event 3 » ",* 34 RECUSATION. If 1 I' I' I ! i ' :.l of the 'inprobation l)eing dis- missed. O. C. 163, am. 228. Improbation may be be- gun at any stage of the suit un- til the cloising of the proof, and even afterwards lief ore judg- ment, upon proof that the falsi- ty was not ascertained until after the proof was closed. All proceedings in the jirinci- pal suit are suspended until the improbation is decided. — O. C 164. 220. Within six days after the presentation of the petition, unless the delay is extended by the judge, the opposite party must serve upon tlie plaintiff in improbation and lile in the office of the court a declaration, signed by himseb or by his special attorney, as to whether he intends to avail himself of the document attacked. If he fails to make such de- claration within the delay fixed, or if he declares that he does not intend to avail himself of the document, the latter is struck from the record, and is also declared null if there are conclusions to thatetrect.— O.C. 165, 166, am. 230. If the defendant in im- probation declares that he in- tends to make use of the docu- ment, the judge, upon the de- mand of either of the parties, orders t' at such document, and the original thereof if necessary, be deposited in the ofiice of the court at the diligence of the party who relies upon it, and that the parties in charge there- of be compelled by all legal means to deposit it.— O. C. 167, am. 231. The parties take com- munication of the impugned document at the office of the court, without removing it. — O. C. 169, am. 2;<2. Six days after the filing of the impugned document. or| if it has been already filed aloi, with the declaration requircfi] by Article 229, within six (lays from such declaration, the plaintiffmust file his reasons of j improbation. —O, C. 170, am. 23i$. In other respects the is sues are joined and tried in t!ie| same way as in the action ;'! H 240. If tlie recusing party haw no written proof in support of his recusation, the Judge's declaration is conclusive, and the recusing i)arty cannot pro- duce oral testimony, or even ob- tai!i delay to produce written evidence.— O. C. 186. 247. If the recusation is maintained, the judge cannot, for any cause or under any pre- text whatever, be present in court dn»'ing the hearing of the case or the rendering of the judgment.-O. C. 1H7. 248. If tlie lecusation has been carried before a court of another district, and is main tained, such r-'urt remains seized of the case, aii 1 the record from that period i rms part of its records. But if the recusation is dis missed, the case is sent back lo the former court.— O C. 188, 18U. Infra, art 1257. 249. A party wlio has a right to recuse a judge may renounce his riglit by tiling a written consent that the judge hear and decide the case, except in the case mentioned in Article 238.-0. C. 190. 250. In sucli case, however, as also when the party fails to recuse, the judge is not hound to sit, unless the grounds of re- cusation have been declared in- sufficient.— O. C. 191. SECTION VI JDisavowal 251. A j)arty may di.savow his attorney ad litem who has exceeded his powers. He nuiy also disavow an at- torney whom he has not em- ployed, without prejudice to his rights if he does not do so. -O. 0. 192. Civil Code, 1704, 1705, 17:^2. 1733. 252. A disavowal may tnkf place during the suit or afttr judgment. The former is treated in this Se(!tivjn. The latter is sub.ject to iln' rules of ])rocedure in ordinarv actions. It does not suspciid the execution unless upon an onh-r of the judge to thatelt* rt. —Niiv in part. O. C. 193 ; 1 Piifeau, p. ~mh ; 3, Rousseau d Laisnn/, p. (530 ; Union Jicnl vs. JJalrson, 11, Q, L. 1?. 329. Infra, arts. 1177, s. 0; llSd, 1238. 253. A disavowal can If made only by t)ie party hini-tli or by his attorney und( i a special power, and the parry himsi'lf must declare that he did not authorize the proc ed ing which l)e repudiates.— O. C, 191. 254. Disavowal is n»ade by tiling in the office of the courf, before wh'.;h tiie case is pend- ing, a declaration that the ])arty disavows the act in ((uestion, a> never having authorized the same.- O. C. 195. 255. The parly disavowiniri^l bound to proceed without de lay to have the disavowal de clared valid, and this is dondiyi a petition served upon both the attorney disavowed or his heirs | and th<' opposite party.— O. C. 196. 250. After notice of the di> avowal has been given, all pro- ceedings in the principal at liun are stayed.— O. C. 197. 257. The piocedure upon tliH disavowal is the same a-- in I ordinary actions.— O. C. 198. 258. If the disa\owal is| maintained, the acts disavowed! are. annulled, and the paitie are placed in the same positioDi 'ii,r REPRISE ^'INSTANCE. 37 lit' lb ill 1 iI'O- jiiiioi; on the H-~ in 1>S. .'al is vowed rjartie.; )!SitiOD| ;i> tliey were in at the time wlit'ii tlie acts wertMloiic— (). C. SKCTION \ll C/ifDU/e of Affornri/.H 'jr>l>. If the case has not l)eeii 111 iird en the merits, all pro- cecdinjjjs had or jud^'ments ren- ddt'd after the attorney of one of the parties has died, or when such at torney can no longer act or hiis vvitlidrawn, are null, un- less >iich party h is apj^eared in jxrsoii, or appointed jniother at- torney, or, after being; called up- on lo do so, has made default.— 0. C. 20(),am. I ii/riL, arts. 539, 1237. ii(JO. An attorney who de- sires of his own accord to cease representing a party must give notice to such party and to the (jpposite party. -O. C. 201. l»fra, art." 280; Civil Code, an. 1759. -. A party who revokes the powers of his attorney must immediately appoint another, without being notihed to that ellect by the opposite party ; and in default of his doing so the cast; is proceeded with as pro\ ided in Article 2.( ' .'attorney in the CL i . \x< : ;i i iu" I in articles :'i50an^ .1 •. 2. Whe.. ,;.(•>- party hiniHcll DISCOyERY. 39 (lies or has changed his civil st;Uns ; 'A. When proceed inji^s are coin- I)ul-(>rily stayed hy an inciden- tal jiioeeediny: or by an inter- locutory judgment.— O. C. 455. Siijn a, art. "KSh). '281. Peremption lakes ])lace a^Minst corporations and iiL'iiinst all individuals, even minors, when they are repre- st'iHi'd, saving their recourse imainst those who represent them. It does not take place against the Crown. O. C. 45(i. 2S-. Peremption must be (led an d by the coi;rt, upon a luolicn of wliich notice is given to tlie attorney, or, if there is no attorney, to the party him- self. O. C. 457, am. 1H'.\. Peremption is covered liy any useful pi-oeeeding taken after the lapse of t wo years and l)ef()re the service of the motion to have it declared ; but it can- not be prevented cr atfected by any proceeding taken subse- iiiently to the service of such •notion.— O. C. 4.5H, am. 284. Perem.ption does not e.vthiguish th^ right of action, t)iU only the suit or proceeding. -(). C. 459. 285. The court, in declaring til'' peremption of the suit, may, I'cording to circumstances, con - Uniii the plaintiff to pay all osls.-O. C. 400, SECTION XI D'Hcovery and Jnspfcflon of Documents 280. At any time before trial, but after defence tiled, any party niay sumnion any of the folio w- injj; persons to answer as a wit- ne'^v, before the judge or the prothonotary, upon all facts re- lating to the action or the de- fence : 1. The opposite party ; 2. When the opposite party is a corporation, the president, manager, treasurer, or secre- tary of such corporation ; 8. Wlien the opposite party is a foreign firm or corporation do- ing business in this Province, the agent of such firm or cor- poration. — New. O. C. 251a ; R.S. oHT'J; R. P. O. 488, ss., Eng. R. ;m. 287. The rules governing the summoning, examination and punishment of witnesses and the taking of evidence apply, in so far as may be, to the cases mentioned in the preceding Article. If any dispute arises during the examination before the pro- thonotary, the parties are sent before the judge to have it de- cid d.— A^f»r. O. C. 225, in part. liHH. The deposition taken by virtue of the preceding Articles shall be used as evidence in the cause ; but if the party exam- ined as a witness is still in the Province, and can be produced at the trial, he may be again examined. The de p os i t i on taken before the trial shall in any case form part of the record, and the costs thereof shall enter into taxation. New. 62 V., c. 52, s. :^. Infra, art. 31(5. 389. Upon the application of any party, the judge may, at any time after defence tiled and before trial, order the op- posite j)arty to exliibit any ob- ject, or to give connnunication or furnish a copy or allow a copy to be made of, any book or iloeument in I is control, relat ing to the u'lion or the defence, at such times and phices, under such conditions and in such 40 TRIAL. m:h! 'l>i:i- \.i -y 1 '■ J. f 1 I" ft f Si'v > manner an am der^med proper. ~::n(\ O. C. 27a ; N. Y. C. S()8, 804, 8()5 : K. I*. O. 507, ss. 300. Tlie cost.s of such exam- ination form part of the costs in the cause, unless the Judpe, in adjudicating upon costs, orders otherwise.— iYe?r. Eiuj. R. 'MT\ SECTION XII Joinder of Actions 29 1 . Two or more act ions he- tween the same parties, in which the questions at issue are substantially th«^, same, or for mc!.tters Inch mij^ht proper- ly be combine d in one action, may be consolidated by order of the judj!;8 upon such uruis as are deemed proper.— A>i<;. A. R. O. 33. 292. The judge may also or- der sev.n') Ad- JOUKNMj-'NT 304. IV. Examination ok Wit- nesses :ii2. V. Takino Down Evidence 345. SECIION I Inscription 293. When the case is not to be tried by a jury it may be in scribed by either party for ])r, 195, 214 ; infra, art. n5H. 2J>4. For the purpose of stn h inscription, the prothonotarv must keep a roll on which the cases are inscribed. — O. C. Zft, am. 295. No case can be inscrilicd on the roll unless a copy of all pleadings necessary to join tlie issue, is tiled in flie office of tlio court for the use of the trial judge. The prothonotary has the right, before the witne.sses are heard, to retpjiire from each party a deposit of ten dollar.^- to cover stenographer's fees, and further, if necessary, to re quire, during the trial, adtji tional deposits. — Nen-. O. C. 32()a, $il ; 3206 ; It. S. 5888 ; h'nu. R. 454; N. Y. C. U8I ; 61 \\. c. 47, s. 1. Infra, art. 1140. 2f>«. Notice must be given t' the opposite party at least six days V)ef ore that fixed for proof and hearing. — iY<';». 21>H. Witnesses may be sum- iiKMU'd either to declare what tluy know, or merely to pro- duce some document in their possession, or to do both — O. ('. 24r». vided, always, that at the time he was served with the subp»<•. C. P. li. 408. }|()0. In all the above cases, the court in granting the ac^ journnient imposes such condi- tions a i it deems proper. — Nen\ 31 0. The party upon whom the burden of proof lies must proceed first to the examination of his witnesses. The opposite party then pro- ceeds to make his proof, after which the other party may ad- duce evidence in rebuttal. The court may, in its discre- tion, allow the examination of other witnesses. New, O. C. 282 ; C. P. L. 476, 477 ; H. & L. 594. Ciiil Code, art. 1203. 311. At the conclusion of t lie evidence, the party upon whom the burden of prooi lies, ad dresses the court first ; the op posit e party follows, and the other party replies, and if in hi«i reply he raises a new point of law, his opponent may answer. No other address can be made unless with the permission of the court.— Neiv. C. P- L. 48."). SECTION IV Examination of Wifnessct 3112. The testimony of one witness is sufficient in all cases in which proof by testimony i^ admitted. iV^-/r." C. ('. 12:^). l>ifra, art. 1278. Cirif (' /- 232 ets.; 1233 et s.; 10<)0. 313. Any party may demaml tluit during (he cxamnuitloii of a witness the other witnesse.«t retire from the room where the trial is held.-O. C. 254, am. 31-*. All persons are compet ent to render testimony except 1 1. Persons deficient in undi i stai.diug, whether frotn imma turity of age, insanity or other cause ; 2. Those who are insensible to the religious obligation of an oath ; 3. Those civilly dead ; 4. Husband or wife, for or against each other. Neverthe less, if consorts are separated as to property, and one of tliem as agent has administered prop erty belonging to the other, tlie consort who has soadministi ml may be examined as a witness in relation to any fact connected with such administiation ; })ro via }d the court is of opinion, in view of the circumatanci ^ ofj the case, that it is just and ad visable to order such exannna WITNESSES. 43 e iiiiiy also give testimony is own behalf.— A> jr. O. (J. (Jode, : 10(59, party tion. AVjr. C. C. 12.^1, am.; ('. -M), 252. Ciiil Code, art. 30. ;jl.">. Persons oonipotent to givf i'\ Idence ure all subject to the same general rules. Holationship, connection by marriage, and interest are ob- [ jectidMs only to the credibility fof ;i witness.— O. C. 252, mn.; K. S. .")880. nm. A party may be exam- liiieci l)y the opposite party, and his evidence may be used as a Iconiinencement of proof in writ- ing. He III hi' [251 ; 54 Vic, c. 45, s. 2, S>i /))•((, art. 288; Ciiil (iirts !2;«, §7; 1243 et s. \V\11, ISIO, 22(M), §7. {117. The fact that a . (Iocs not oiler Ids lest iinuny niii nut l>e construed against him. \~ynr. O. C. 251, am.; 54 Vic, |o. 4n s. 2. JltH. Upon the improbation |of an autlientic deed, the lesti- hium.v of the notaries, attesting jwitiiesses or other function- jaries who witnessed th»! deed, inavlie received.— O, C. 252; H. Is. oSHO. JHJ). A person afflicted with Ian infirmity which renders him jnnahle to speak, or to hear and iBpeak, may be examined as a jwitiR'ss either by writing down jliis oath or atlirmation and his lanswers, or by giving his evid- lence with the aid of signs jthronij;]i an interpreter.— O. C. ma III.: 50 Vic. (C.), c 31, s. 0; Stephen Ecid., Art. 107. 320. The bailiff who served Ithe writ of summons cannot tes- Itify to any facts or admissions [which came to his knowledge ifter the issue of the writ of samnions, except in relation to the service itself.— iV^-jr. O. C. 2()2. Infra, art. 1278. :Ji21. Hefore a witness can be heard, he tnust swear before the judge, or the prothonotary, j to tell the truth, or, in the case I of a Quaker, the word , "swear" is replaced by the words : "sol- I enmly, sincerely and truly de- clare and allirm."— O. C. 255, I atn. Civil Code, rts. 17, § 15. :J22. The torm of oath and the manner of taking it may be changed according to the reli- gious belief of the witness, in such a inanner, however, as to bind him to declare nothing but I the truth.— O. C. 2.50. i$2;j. A witness refusing to I take the oath or aftirmation is I deemed to refuse to give evi- dence.— O.C. 257. il'Jl. Hefore the witness is admitied to be svv(jrn, lie may I be examined i)y either of the parties as to his religious be- lief ; and lie cannot take the oath or the allirniation, or give evidence, if he does not believe in God, and in a state of rewards , and punishments after death.. — O. C. 259. 325. Any person who is pres- ent in the room in which tlie trial is being held may be ex- j anxined as a witness, and is I bound to answer as if he had been regularly summoned.— O. I C. 250, (tm. \ iV2ii. A witness who is pres- ent cannot refuse to give evid- ence under pretext that the necessary amount to defray his ^ travelling expenses has not ' been p lid to him. — O. C. 258. 327. The witness must first be asked and must declare his ; names, age, quality or occupa- tion, and domicile.— O. C. 207. I 328. The opposite party may pw^. 44 WITNESSES. !(.:> ;"'^^ !l i ili« establish, hy rt preliminary ex- Hinliiatioii cir any witness pri> (inct'd, or in any other manner, wluitever >j;roun<'> sion of any object which is ihe sul)ject ol the litigation, to pro (luce it, under the same pi lal ties in case of default as for re fusiug to answer pertiiien; (luestions. — O. C. 27iJ, (un. 334. A witness is bound to produce any document in l:i> possession touching the mnUer in Issue, and to allow copies or extracts thereof to be taken if it is ji |)rivate writing ; and suih copies or extracts, certified bv the prothonotary, are entitled to the sauie credence as would be given to the originals. C. 27«. Suprn, art. 298. 335. It is the duty of tliM prothonotary to ask the wit nesses if they require taxation, | and, if they do, to tax theii ex penses with due regard to tliM nature of the voyage and the I duratiim of their stay. — O. C, 280, a >/i. Infra, art. 557. 330. The taxation ma\ be I enforced by execution agdnst the party who summons tlie witness, in the manner and after the delay prescribed fori any judgment. A witness may sue oute.x "cii tion against the opposite party condemned to pay his expenses, provided that no execution has already been sued out b\ t'l party who ol)t.iined the iadj: ment, or that the amount a! lowed the witness has not ai ready been paid to such ]iartv| or his attorney in virtue of duly receipted bill of costs.- 1 O. C. 281, ant. 337. A party who has exam ined more than five witnesses I on the same fact cannot recover t STENOGRAPHY. 45 the osts of Mic other deposi- tions without tin* permisHion of tl,,. itidgc. -AVfr. C. P. C. F. 2,sl ; :i, art. o4!>. jj.'is. A witnesa must not witli ilil\^ without the permis- sion t.f the court. O. C *Z7H, :?:{». WitnesHes are examin- ed I V the party j)ror(i, art. 110 :J4(). When a party has ceased examining a witness he has })roduced, the opposite party i.iay cross-examine such witness in every shape upon the facts referred to in the examin- ation in cliief ; or he may re- quire an entry to be made of his declining to cross-examine. -Xnr. O.C. 271; Sfephen Evid., Art. 127. liAV. A witness niay be re- examined by the parly prnduc in)-' him when new facta have ho«'n elicited on the cross-exam- ination, or for the purpose of exphiining his answers to the cross questions.— O. C. 272. .'{42. P the examination of a witness cannot be completed on the day he appears, he is l)oun(l to attend again on the next following .juridical day, or on such other day as is assigned ^ to him by the court and is enter- ed upon the registers of the court. In default he is liable to the same penalties as for tefus- \\\'A to attend upon the sub- puMia.— O. C. 279, am. Supra, art . 308. 343. A deposition, given at a ormer trial of the same action I or of another action founded in i whole! or in part upon tin; same cause of action, nuiy lie given in ' e idence, if it isestablishee unable (o travel, oris ulisent from tlie I rioviiice, ;iiid tliafc the opposite I p.irty had a full chance to cross- *\amine the witness. New. ('ri)n. Coil' '»S7 ; Sfepfif i EviiL \\>. 34 4. I II less wl ere it is otherwise proviil I, the wit- nesses in any (f^ntested ease are examined in open court, the op- posite party l)eiiig present or duly notified. The judge ma> ask them any (luestions he deems necessary. -O. C. 2(53, am. ; H. S. 5881. ' Infra, art. 350, M50. SECTION V iaking Dorcn Evidence 345. The evidence is taken down bv means of stenography, under the direction of I he court, unless it orders otherwise. — Newinpttrt. O. C. 320«, §5; R. S, 5888. \it]ira, art. 295 ; infra, arts. 341), 1142. 34«. The court may order that the stenographer's notes be read to the witness and cor- rected in open court.— O. C. 320«, s. 0, am. ; K. S." 5888. 347. The stenographer's notes ar< transcribed only when the judge so orders, or in case of review or of appeal, or at the conclusion of a ,]ury trial when there is a motion for a new trial, for a different judgment, or for judgment in a reserved case. Each party then pays the cost of tran.scribing his evidence, which is neverthe- k\u ^.'^Kx Q> ^" .0. (MAGE EVALUATION TEST TARGET (MT-3) d/. o i «.// 4t?^ < ^'^ t 1.0 M I • ft 1.25 liifflM 112.5 132 " 1^ 1.8 1-4 ill 1.6 P^ t^ Photogi"dphic Sciences Corporation d «' <>V; ^\ «^ ^^ ^.^^> 6^ <^^^ 23 WEST MAIN STREET WEBSTER, NY. U580 (716) 877-4503 w- Uo o 46 INCIDENTS OP TRIAL AND EVIDENCE. % I I i less considerod as lorming part of the costs in the cause. Each party may obtain, upon payment of a fee fixed, which is not taxable, a transcription of the whole or of part of the notes.— iV^ew'. O. C. 320a s. 6, ; R. S. 5888 ; N. Y. C. 82-88; Ont. J. A. 140; R. P. O. 205, 20(>, 80:^ 348. The stenographer certi- fies, under his oath of oilice, to the truth and correctness of the transcription of the rctes. Upon application by any party interested, the judf^c who heard the evidence may order the cor- rection of any errors in the copy so tx'anscribed. The costs of revision and correction must be paid by the party in default. The stenographer must de- posit the books containing his stenographic notes at the place and in the manner determined by the rules of practice. — Neir in part, O. C. 320a; R. S. 5888. 340. Whenever the court orders that a deposition be not taken down by means of sten- ogrf'phy, it takes down or causes to be taken down in writing under its direction, notos of the material parts of the evidence and of all objections insisted upon by either of the parties, with the decisions thereupon.— O. C. 263, am.; R. S. 5881. 350. When the deposition is thus takeo down in writing, it is read to "or by .Jie witness as soon as he has finished it; he IS then asked to declare whether it contains the truth ; whethei he persists therein, and whetlier he knows any- thing further ; and he must sign it. If he cannot sign, mention is made thereof, as w^ell as of the reading of the deposition.— O. C, 293, 264, am. The notes of evidence, taken by the judge or under his direc tion, are afterwarda signed Ia the judge or the prothonotan and they constitute, and shall be considered as the evidence of the witness ; 61 V., c. 47, s.2, 351. If the witness adds to, strikes out, or alters any lor tion of his deposition, the changes musjt be inserted ii; the margin, or at the end. be fore the closing of the deposi tion.- O. C. 264, 294, u.m. 352. No credence is given to unauthenticated marginal notes, or to words written upon others, or to interlineations. The number of words struck out and of marginal notes must be mentioned in the jurat. 0. C. 29p, 353. At the commencement of the deposition must be men tioned the name of the judge presiding at the trial, the desig nation of the parties, the names, age, quality or occupation, domicile or residence of the witness ; and the fact of his having been sworn or having aftlrmed.-O. C. 288, am,; K. S, 5887. 354. The judge takes down, or causes the prothonotary to take down, notes of all ad mis sions made orally by the parties; and such notes, signed by the judge, make proof in the same manner as if they were siuned by the parties.— O. C. 266, (idi. Supra, art. 306. Civil duh, arts. 1243, 1245. CHAPTER XIX rueidentN of Trial and K.vi- deuce. I. Examination of Witni;sse.< BY Consent, 355. INCIDENTS OF TRIAL AND EVIDENCE 47 IV II. Examination of VV^it- NESSES WHO ARE ILL, OR ABOUT TO LEAVE THE Province 356. III. Examination of Wit- nesses Elsewhere than where the Case IS Pending 357. Interrogatories upon Articulated Facts 359. V^ Oaths put by the Court S7t. VI. Proofs befot^e Exami- ners 373. VI I. Commissions for the Examination of Wit- NESSEIS 380. VIII. Experts, Viewers, Re- ferenced IN Matters OF Account and Arbi- trators 391. !^ I. Viewers and Experts 392. § II. References in Matters OF Account to Account- ants AND Practitioners 410. § III. Arbitrators 411. s TV. General Provisions 414. SIV section I Examination of WittiessiS by Consent U55. The court may dispense with the attendance of a wit- ness in open court or receive his disposition taken by con- Sfcllt. All objections raised during the taking of any such deposi- tion must oe reserved for hear- ing at the trial. New. O. C. 239, 2Ho, 290. Sajjra, art. 'Si4; infra, art. 419. section II E'x(nnination of \Vit7ie8ses IV ho are ill, or about to leave the Province 35fl. In any case wherein it is established upon oath that a witness is about to depart from the Province, or is prevented by illness or infirmity from at- tending before the court, the jud^e, the prothonotary or a commissioner of the Superior Court, upon the order of the judge, may, at any stage of the proceedings after service of summons, receive the deposi- tions of such wimesg, in pres- ence of, or after due notice to, the parties ; and such deposi- tion has the same effect as if it were taken at the trial. If tne witness can be pro- duced at the trial, he must be examined anew in the ordinary manner, if it is required by either party.— O. C. 240 am. Supra, art. 1^4. section III Examination of Witnesses elsewhere than where the case is pending, 357. The judge may, in his discretion, and without any commission or other formality, order the prjof to be taken, or any person, even if he is a party, to be examined, either upon articulated facts, or other- wise, at any place where sit- tings of the Superior Court or of the Circuit Court are held, before any judge at such place. In such cases, after the re- cord has been four days in the hands of the prothonotary or clerk at the place to which it has been sent, the parties may 48 TAITS ET ARTICLES. 'll'" fi'.- \ :r^:; I proceed as if the case were there pendine.— O. C. 241. Ivfro^ art. 1145. adn. A copy of such order is transmitted to the prothonotary or clerk of tlie court at the place mentioned, together with such part of the record as may be necessary ; and the prothono- tary or clerk may ^hereupon take the necess ry proceedings to compel the witness or the parties to appear at the place named on any day fixed by the judge, on which a judge will be present at such place. In the case of this and of the preceding Article, the rules con- tained in Articles 301, 303 and ,557 apply.— O. C. 242, am. Supra, art. 31 . SECTION IV Interrogatories upon Articu- lated Facts 359. The parties may be ex- amined upon articulated facts as soon as the defence is filed, upon the facts in issue as then joined, and without retarding the trial or the judgment. If the defendant is in default to appear or to plead to the ac- tion, he may be examined on articulated facts as soon as he is so in default.— iVe*/% in part. O. C. 221, am.; R. S. 5H73. Infra, arts. 378, 4(58. Civil Code, arts. 1243, 1245. 300. Parties are summoned to answer interrogatories upon articulated facts by means of a process issued by the prothono- tary, in the name of the Sover- eign, upon a written requisition to that elFect, and ordering the party to appear before the court, the judge, or the prothonotary, to answer the interrogatories to be puh to him, which are an- nexed to the process and ire served upon him. — New, in 'part. O. C. 222, 226, am. 361. The order to answer upon articulated facts is served upon the party personally oi- at his domicile, and not upon his attorney, unless such party is absent or absconding ; and a copy both of the order and of the interrogatories must be left with him. If the party is absent, the at toruey who has been served may apply to have delay given hiiii to aiipear ; or, if he declmes the place where such party then is, the opposite party may re- quire that he be examined uiuler a commission.— O. G. 223, am. Infra, art. 380. 362. A party summoned to answer interrogatories upon articulated facts must appear personally to give his answers, undcroath.— O. C. 224, am.;K S. 5874. 363. When the service i> made upon a corporation or legally recognized body or ( oni munity, the answers ma.\ l)e given under oath by the piesi dent, manager, secretary, treas urer or other orficerpr employee, if he holds a general or 'special authorization for that purpose: or the answers which he must give and swear to as being f hose which the party summoned in tends to give maj' be speeiiiod by special resolution. When such service is niude upon a foreign corporation car rying on business in this I'rov ince, the answers may also be given under oath by the person who is at the time intrustcJ with carrying on the affairs of the corpoi'ation, what ever be his designation orotHcial title : but such answers may also be ^iven by any person previously uiith DECISORY OATH. 49 orized by a resolution of the board of directors of such for- eij^n corporation to appear and answer in its behalf the interro- jjjatories that mny be served upon it.— O. C. 224 am.; R. S. 5874. Iiifrrt, art. 684. 304. If the party served with the rule fails to attend or to answer the questions put to him, a default is recorded j'giiinst him, and the facts may be held to be admitted. The judge may, nevertheless, for cause shown, and upon such coiulitions as he thinks fit, al- low the party so in default to answer the interrogatories afterwards, before the conclu- sion of the evidence of the party who summoned him . — O. C. 225, (tin. ;jfl5. The interrogatories must be drawn up in a clear and precise form, in such a manner that the absence of ux\ .uiswcr shall be an admission of the fact sou.u;ht to be proved.— O. C. 'ITi. ;J00. The answers are taken dow!i in writing and signed by the party. Tile court or the person before whom the party ia summoned to answer may put any other in- terrogatories ho may deem necessary and pertinent. If the party refuses toansvv^er such interrogatories, the court, the judge or the prothonotary, as the case may be, causes them to be written out and placed in the record, and they are held to 1)6 admitted.— O. C. 226, am. ;i07. The answers must be flirect to the question, categori- cal and precise. If any dispute arises during the examination, the parties arc sent before the judge to have it decided.— O. C. 225, 228, am. 368. Every answer which is not direct, categorical and pre- cise may be rejected, and th'3 facts mentioned in the interro- gptoiv declared and held to be proved.— O. C. 229. JJfl9. The expense of interro- gatories upon articulated facts forms part of the costs in the cause.- O.C. 232, am.; R. S 5875. 370. Any party, on l)eing served with a rule to answer interrogatories upon articulat- ed ftcts, may demand the necessary funds to pay his travelling expenses ; but when he is before the court, the judge or the prothonotary, he cannot rcfust' to be sworn or to answer unless he is paid. He has a right to have his ex- penses taxed, and such taxation may be enforced by execution against the opposite party,— O C 21^3. Siipra, arts. 326, 335. SECTION V Oaths Put by the Court S71. When some proof has been made of the demand or defence, the court niay, in its discretion, order either or both of the parties to appear and answer on oath, in order to complete the proof necessary for the decision of the cause, or for det-jmining the amount for v/hich judgment ought to be given. -O. C. 448 ; C. C. 1254, am. 372. The oath upon the value of the thing demanded can only 1)6 put by the court to the party claiming when it is impossible to establish such value other- wise.— C. C. 1256. Civil Code, arts. 1677, 1816. 4 ) i \'^'- 50 COMMISSIONS ROOATOIRES. ■■w p sir- SECTION VI Proofs Before Excnniners 378. The judgr may appoint a competent person as an exam- iner to take the proof, when, by reason of the nature of the dis- pute, or the number and dis- tance of the witnesses to be ex- amined, it is shown V)y iiny of the parties concerned that the ends of justice will be better at- tained by I he appointment of such examiners.— C. C. 3(X), am. Supra, art. 98. 374. The rule appointing an examiner must specify the place wliere the proof shall be taken, and the delay within which it must be concluded. This delay may be extended by the judge upon sufficient cause shown.— O. C. 301, am. 375. The examiner, before entering upon his functions, must be sworn before a judge or a commissioner of the Superior Court to fulfil his duties faith- fully and impartially, and such oath must be in writing and be annexed to his return.— O. C. 302, am. 376. He must give the par- ties at least six days' notice of the time and placi' at which he will begin the examination.— O. C. 303, am. 377. The witnesses are sum- moned to appear before the ex- aminer by means of a writ of subpiiena issuing from the court before which the suit is pend- ing. The examiner may administer the oath to them, may receive any documentary evidence pro- duced by the parties, and has all the powers, in respect of the taking of evidence, of a judge presiding at a trial.— O. C. :!(i},| am. 378. Any party may also 1*1 summoned to answer interro gatories upon articulated facts V)efore the examiner, who iiaj the same powers as ajudaine of the cause. It cnunot be opened and pub- lished without an order from the judge.— O. C. 313, am. 388. The party who applies for a commission must, at his own diligence, cause it to be transmitted and executed.— O. C. 314, «m. 389. If the parties have joined in the commission they are equally bound to have it transmitted and executed. — O. C. 31.5, «>/j. 800. A failure to return the commission cannot prevent the court from proceedinjj A^ith the hearing in the following cases : 1. If it appears that the party applied for the commission sole- ly in order to retard the judg- ment ; 2. If the return has been de- layed longer than justice and equity required.— O. C. 316. SECTION VIII Experts, Viewers, References in Matters of Account and Arbitrators 391. Before deciding upon the merits of the case, the judge may, if necessary, order an ex- traordinary investigiition in the cases hereinafter mentioned, either before, during or after the trial.— O. C. 321, am. § 1.— VIEWERS AND EXPERTS. 392. Whenever the facts in contestation between the par- ties can be verified oidy by view of the objector premises, or the evidence produced by the par- ties is contradictory, or the nature of the contest requires it, the court, of its own accord, or upon the application of either party, or the judge, upon the application of either party, may order the facts to l)e verified by 52 VIEWERS AND EXPrRTS. m t il t experts and persons skilled in ( the matter. ! The order for experts must specify clearly anddistitictly the matters to be verified. — O. C. 322, avi. Infra, arts. 543, 800, 950, 1040, 108i; 1090; Civil Code, art. 090 i et. s. : 303. The experts are three in number, and are agreed upon by the parties, nevertheless, if : the parties consent, or if the judge thinks proper by reason of the nature of the object in dispute, only one need be named.-O. C.323, am.; C. P. C. F. 303 ; C. P. G. 216. 304. If, at the time of the order for experts, their appoint- ment has been agreed upon by the parties, the order records such appointment. — O. C. 324. 305. If the experts are not agreed upon by the parties, the judge fixes a day on which the latter must attend before the court or judge in order to ap- point them ; and, in default of an order to that effect, either party may summon the other to attend as aforesaid within a reasonable delay for the purpose of such appointment. — O. C. 325, am. 306. The parties are bound to attend on the day appointed and, if they then fail to agree upon the experts, the judge makes the appointment in their stead. In the case of a recusation being maintained against any of the experts, others are ap- pointed in their stead in the manner .above described. --O.C. 320 am. 307. The grounds for recus- ing an expert are : 1. Relationship by blood or affinity, to the degree of cousin- german inclusively v • 2. Intimacy ; 3. Enmity ; 4. Subornation ; 5. Interest ; 6. Being in the domestic serl vice or other employ of one of| the parties ; 7. Being a party in a siinilarj suit, or the attorney or agent o(| a party in the cause; 8. And, generally, the groundi) of exclusion applicable to witf nesses.— O. C. 327, am. 308. As soon as the e\])t'm| are named, either part\ niijl have the order served iiporj them, together with a r«ijuisij tion calling upon them to k\ sworn. -O. C. 328. 300. If any one of theeij perts neglects or refuses tol»| sworn or to act, either of tl parties may summon the otha to attend before a judue, ill order that another person iiiatj be named to replace siuheij pert.^0. C. 329, am. 400. The experts, halm taking any proceedings in tlxj investigation, must, on j)ain(i| nullity, be sworn to jpirfon tlieir functions with iinpartH ality and to the best of theiif ability. -The oath a^ust be in writiDji and be certified by the per> who administers it.— O. V.'M See Forms F.G. in Ap/icmlin 401. The oath must be takea before a judge or the protlionoj tary, before a commissioiuriif the Superior Court, before expert already duly sworn, before any other person iiidi cated in the order for experts.- O. C. 331,am. 402. A copy of the onler f« experts, together witli necessary papers, must handed to them by the jirotM notary, who takes a leceipf therefor.— O. 0. 332. ACCOUNTANTS. 53 4();i. The experts are bound lix tlie time and place at .,hicii t'ney will proceed with the invi'hiigfttion, and to notify fhc parties, allowing a delay of It least three days when the listanco from the domicile of he parties to the place indicat- ed does lot exceed tifty miles, ind niie dav more for every ad- litionaltifty miles.— O. C' 333, tin. 404. The experts nmst hear khe parties and the witnesses in cconlance with tht terms of order naming them ; and ich of them is authorized to lldminister the oath to the wit- lesses or the parties, as the ise may be, and the witnesses re summoned to attend before ic experts, whatever may be distance.— O. C. 334. Ser io//;(S F.H. in Appendix . 405. The* evidence must be ikiii down in writing, certi- led. and annexed to the report ^f the experts ; and it must lent ion whether the witnesses related or allied to the par- ses, and in what degree, and rlietiier they are in the employ eillier party, or interested in |>e suit.— O. C. 335, atn. 40(J. If all the experts agree, ley iiuike one and the same re- 3rt ; if not, each of them sakes a separate report, if he 'links proper.— O. C, 330, am. 407. The report of the ex- erts must be made on or be- pre the day fixed by the judge, fit must contain reasons and Btails, 80 as to enable the bnrt to appreciate the facts, k1 must also be signed by the tperts or be in the form of a )tarial original.— O.C. ^^7, am. |408. If the experts delay or Kusf to file their report, they iay be summoned, with the Irae delays as in ordinary pro- cedure, by a rule of court, to show cause why they should not be conderrnied, and even held by coercive imprisonment, to do so.-O. C. 3:i8. Infra, art. H34. 400. The court is not bound to adopt the opinion of the ex- perts or thai; of a majority of them.-O. C. ',m). Infra 416. §2. — REFEKENCES I\ MATTERS OP ACCOUNT TO Al'COUNTANTS AND PRACTITIONERS 410. In matters where ac- counts have to be rendered or adjusted, or which require cal- culations to be made, and in matters of separation of pro- perty, or partition of com- munity or succession, the judge may refer the case to one or more persons skilled in such matters ; and such persons are subject to the rules above pre- scribed concerning experts. Such accountants and prac- titioners have the powers given to experts by the foregoing Articles, and are bound to fol- low the directions of the judge; and their reports are adopted, homologated or rejected in the same manner as reports of ex- perts.— O. C. 340, am. Intra, arts. 414, 415, 416, 543, 576, 1044, 1096 ; Civil Code, art. m) et s. § 3.— ARBITRATORS 411. The court, of its own motion or upon the application of either party, or the judge, upon the application ot either party, may refer to the decision of arl)itrators any case of dis- pute between relations, con- cerning partitions or other matters of fact which it is diflti- " i '' i.:J 54 PROOF AND HEARING, ETC. cult for the court to appreciate, and also any other case if the parties consent to it.— O, C. 841, <(tn. Infra, arts. .576, 1270, 1481, et 8. 412. The precedinj? provis- ions relating to experts apply to arbitrators, in so far as they are compatible with those of the present paragraph ; never- theless, arbitrators need not be sworn unless the order ap- { minting them requires it.— O. :. 342. 413. Arbitrators can only ftdiudicate upon the matters sunmitted to tliem. They are bound to observe the same formalities as experts in the investigation of facts, according to Articles 404 and 405, unless thev are at the same time appointed mediators, but they are not bound to give the reasons of their decision. They cannot award costs, un- less tne court has empowered them to do so.— O. C. 343. § 4.— GENERAL PROVISIONS AP- PLICABLE TO THE THREE PRECEDING PARAGRAPHS 414. Experts, accountants, practitioners and arbitrators may demand that the amount of their remuneration, costs 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 deposit, they have a recourse against all the parties to the suit, jointly and severally.— O. C. 344. 415. The party who intends to avail himself of a report of experts, accountants or prac- titioners must make application to have it received ; and, if the opposite party desires to tftke| advantage of anv irregularities or causes of nullity therein, he must do so by a counter-applic ation.— O. C. 34.5. 410. If a report of experts, accountants or practitioners j is free from irregularities or] causes of nullity, it forms, to § ether with the depositions and ocuments annexed, part of tk \ evidence In the case.— O. C. IIM 417. In the case of an award of arbitrators, the party intend ing to avail himself of it niaj apply for its homologation ad ; for judgment in conforinilTJ with it. The other party cannot op I pose it except by an application to have the report declared in admissible on the ground of irregularity or of some other! cause of nullity. — O. C. 347. CHAPTER XX Proof and Hearinjc^, and] Proof in cases by De- fault and ex parte. 418. Notwithstanding the I provisions of Article 532, when the defendant fails to appear or | to plead to the action, the i)lain tiff may in all cases inscribe the] cause : 1. For proof in term or out oil term, if any is necessary; and such proof is then proceeded with before the judge, or liefort the prothonotary who inust| swear the witnesses, have notes of their evidence taken by I stenography or other wihe, in] the same manner as in con tested cases, and do such other I things in regard to the evidence as it would be the dutyoftliej judge to do; or 2. For proof and hearing' atj the same time. TRIAL BY JURY. 65 One (lay's notice of inscrip- tion must be ^iven to a df I'end- aiit foreclosed from pleading. The I liter may cross-examine the witnesses, and make what- ever oli.jections lie tliinks pro- per, of whieli notes must i)e taken ; Imt lie is not entitled to produce witnesses.— O. C. 317. (tin. Supra, arts. 15, 162, 207; iyifra, arts. li;W, 1163. 4 1 ». In cases by default, and in e.r j)firtr cases with the con- sent of the parties or their attorneys, the evidence of wit- nesses may be taken at any staK^ of the case by means of stenography, or otherwise, in the manner prescribed in Ar- ticle ;i5.5, at any place \vhatever, on any juridical dav in or out of term.— O. C. 289, am.; 54 Vic, I c. 44, s. 1. 420. When the evidence otfered by the plaintiff* is taken out of the presence of the judge it is filed and remains of re- i cord.-.Veir. O. C. 318. CHAPTER XXI Trial by Jury I. Preliminary Provi- sions 421. II. The Jury 430. III, Formation of the Spe- cial List and Striking THE Pankl 433. IV. Summoning of Jurors 443. V. Formation of the Jury AND Challenges 446. VI. Proceedings Before THE Jury 462. VII. Provinces of Judge AND Jury 474. VIII. Verdict 476. IX. JuDciMENT After Ver- dict 401. X. Ill MK dies A(JAJNST Judgments and Pro ceedings in Reseuvkd Cases 492.. § I, CJeneral Provisions. § II. New Trials 40H. § III. Different Judcjment 508. SECTION I Pt'cHmltiiiry Provisions 421. A trial by jury may be had in all actions founded' on debts, promises or apjreements of a commercial nature, either between traders or between traders and non-traders ; and also in all actions for the recovery of damaj^es result- ing from personal wrongs or from oltences or (luasl-oft'ences against movable property.— O. C. 348. «wt. Infra, art. 1018. 422. It is had at the option of either of the parties when the amount claimed by the action exceeds four hundred dollars.— O. C. 349, am. 423. The option is made either in the declaration or in the defence, or by a special ap- plication to the judge within three days after issue joined. — O. C. 350 am. Supra, arts. 9, 214. 424. The trial is not fixed until the judge has decided all issues raised respecting the right to trial by jury, and, upon the motion of either party, has assigned the fact or facts to be inquired into by the jury.— O. C, 352, am. Infra, arts. 483, 499, 506. 425. Each party must fur- nish the judge with a state- I • u . '< 56 TRIAL BY JURY. nieiit of the facts, which he considerH ought to be submitted to thejury. -O. C. 85:^ 42*1. The Jissignuient of facts may be dispensed with by tlie consent in writinj^ of all the parties to the suit.— O. C. 354 atn. Infra, art. '184» 427. The judge presiding at the trial may, at any time be- fore verdict, of his own motion or on the application of cither party, strikn out, add to, or amend any of the facta so as- signed, if he considers that by doing so a more perfect trial of the issues will be secured — New. 428. The trial must be had at the place where the action is brought, unless for suflicient cause the judge orders that it shall be had in another district ; and in such case the verdict is returned with the record to the place where the suit was com- menced. — O. C. 355, a'/i. 429. In any action for dam- ages brought against a i)ul)lic officer by reason of any illegal act done by him in the perform- ance of his functions, the judge may order that the trial shall be held in another district if it is shown that the case cannot be tried impartially in the dis- trict in which the suit is brought.— O. C. 856, am. Supi'a, art. 97. SECTION II. T?ie Jury 430. 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 cases, by taking from the list of persons qualified to serve as grand jurors in crim- inal cases, which is deposited in liis otJice, the names of all per sons residing within a distam f of fifteen miles from the courl, in theorderin which suchnaims appear.— O. C. Ii57, am. If the court is held in anj place other than the citie.s of Quebec, Montreal, Three Iliv«'rs, Sherbrooke, or St. llypcinllic, or the town of St. Johns, the names of all persons appearing on the list of grand jurors must be entered by thy prothonotary upon the list of persons quali tied to starve as jurors in civil cases.— (51 Vic, c. 47, s, 3. 431. Immediatcdy alter re- ceipt of the notice given by the sheriff that ho lias compltttd the revision of the granoi jury lists, the prothonotary is bound to forthwith correct the copy in his possession so as to make it conform to the jury-li.its so re- vised ; and such corrections are certified l)y the sheriff. The list of jurors for civi! cases is revised by the prothonotary according to the list of grand jurors for criminal cases so re vised, by striking out the names of deceased, absent or dis(piali- fied persons, and adding the names of new persons qualilied to serve as jurors. The prothonotary is al-o bound to strike out from lime to time the names of all persons w}\om the sheriff, in any ptiid ing case, returns as deao, ab sent or disqualified, or who are declared by the court to be so. — O. C. 361, am.; R. S. 2(W(). 2641, .5893. 433. The grounds of extnip tion from serving as jurors are the same as in criminal matters. — O.C. 360, am.; R. S. 5892, 2ti21 ; 59 Vic, c. 43, s. 2. t'lirmai (inn I. '{3. of eithe a (lay fo another it) tci'iri order tli to try t place \vl in any c to circu latter ca i)e sent the con »• 434. ' ing of 1 he acco'i in the of amount practice. S. ( '. ()."), 43.5. J merc'ial i suminoni ed only ] sons, sp lanj^uagc in the j or trader! they Stan cases wh is not a t; jury com ers, the . one halfd posed of 1 If there list the ni traders t moned t( special lis hig other list in tl prescribet 4:jg. u either ps party does TRIAL BY .IIIRY. 57 SECTION III t'nniiiifion of the Sfxcial Jjint (intl Sfriki»(f f/it '*anfi I. 'J.*!. The judge, upon motion of cither of the parties, may i\x 11 (hiv for striking the panel, and (Uiotlierday for the trial, either ill term or in vacation, and order tlie summoniufjol a jury to try the issues, either at tlie pliice where the court is held or in any other district, according to circumstances, and, in the latter case, order the record to he sent to the prothonotary of the (•uu''tat the 'ipj: >iuted place. 0. ('. ;^()2, (im. 4:H. The motion for the fix- inK of a day for trial must be iicccnipanied with a deposit in the oftice of t' i court of the amount lixed '),v the rules of practice.— O. C. I^)" am.; R. P. S. ('. (55. 4;J5. If the action is of a com- mercial nature, the jurors to be sinmnoned are taken and select- ed only from ai longst the per- sons, speaking the required language, who are designated in the jury-list as merchants or traders, in the order in 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 trad- ers, the judge may order that one half only of the jury be com- posed of traders. If there are not upon the jury list the numberof merchants or traders that sliould be sum- moned to form the jury, the special list is completed by tak- iiif; other names from the jury- list in the order hereinbefore prescribed.— O. C. 363, am. l.*J«. Upon the application of either party, if the opjjosite party does not object, the judge may order the jury to be com- posed exclusively of persons speaking th^ French language or of persons speaking the Eng- lish language. If tlu! parties are of different origin, and oneof tliemdem nnds a jury t/r medicfatr Ihig/Kr, or if such application is made by a corporation which is a narty to the suit, the judge orclers the jury to be composed of equal numbers of persons speaking the French language and of per- sons speaking the English lan- guage.— O. C. 'MSA, am. 4i$7. T'^pon the order being granted, the prctlionotar) takes from the list of jurors for civil niMtters, commencing with the name of the tirst juror follow- ing that of the last juror in- cluded in the tpecial list previ- ously made, the names of fifty jurors, whose nam^s are n xt on the list, having, in ^he special cases, the qualifications re(|uired according to the order of the judge, and makes a special list thereof to form part of the record in the case.— O. C. 366, am. 438., Upon the day and at the hour fixed forstriking the panel, the parties must attend for that purpose at the office of the court.— O. C. 367, am. 4:iO. E]ach party strikes alter- nately, from the special list pre- pared by the prothonotary, the name of one ot the persons therein designated, to the num- ber of twelve, paraphing each namestruckout, and the twenty- six names then remaining form the panel from which the twelve jurors who are to serve in the case are taken.~0- C. 368, am. 440. In the case oi articles 435 and 436, neither party can strike out the names of more than six persons speaking the ( < ■m^ 68 TRIAL BY JURY. French language or of more than six persons speaking the English language, or the names of more than six traders or non- traders, as the case may be. — O. C. 369. 441. If either of the parties fails to attend for the purpose of striking the panel, the protho- notary may strike twelve names from the special list en his behalf, observing the rules prescribed in the preceding article.— O. G. 370. 442. When any party who has demanded a trial by jury allows a delay of thirty days to elapse from any date at which the case stands ready for trial or for a new trial, without pro- ceeding to bring on the trial, he is thereupon by the sole operation of law •' rived of his right to a jur> iirial ; but the judge may, upon applica- tion maae within the dcla^ , ex- tend it for cause shown. The other party may, within fifteen days from the expiry of the said delay, proceed to a trial by jury. If the delay elapses, in either case, without such proceedings being taken, the case may be inscribed for proor and hearing in the ordinary manner. — New. O. C. 371. SECTION IV Summoning of Jurors 443. As soon as rhe panel is formed, the prothonotary de- livers ' o the party who applies for it a writ, of Venire J^acias, in the name of thi Sovereign, signed and attested by the pro- thonotary, ordering the sheriff to summon the twenty-six per- sons whose names compose the panel. A copy of such panel is annexed to the wrii.— O. C, 372, can. 444. The jurors must be summoned at least four days before the day ilxed for the trial.-O. C. 373. 445. The sheriff is not bound to leave a copy of the writ of Venire Facias with each per- son, but merely a notice under his signature, summonhig him in virtue of such writ to appear upon the day, at the hour, a!id at the place fixed for the trial. This notice must give tlie names of the parties to the case. the names, occupation and residence of the person sum- moned as a juror, and the day, hour and place, fixed for the trial, the summons to appear as juror, the date of the writ of Venire Facias, the date of tlie notice, and the signature of the officer to whom the writ is ad- dressed.— O. C, 374. SECTION V Formation of the Jury Challenges. a II d 446. As soon as the case is called on the appointed day, the sheriff must return before the court the writ of Venire Facias, to which is annexed the copy of the panel of jurors, and must also report his i)ro- ceedings, including the certi ficates of service upon, or at tempts to serve, those persons whose names appear in the ganel. Neu: O.C. 37o, 377; I. S. 2667. 447. On the day fixed for the trial, the persons sumnnjn ed as jurors mu.st appear ai the ap';)ointed hour, at the place where the court is held, urdera penalty not exceeding ^venty-five dollars, which may TRIAL BY JURY. 69 be liiimediately imposed by the court. Such penalt}' is levied by the sherirton the goods and chat- tels of the person so lined ; and, in default of sufHcient goods and chattels such person may be ininrisoned for a period not exceeding fifteen days. The court may, however, for good cause shown, reduce or re- mit such penalty or imprison- ment. Any juror duly summoned, who without surticient cause fails to attend at the time and place appointed, is furtherniore fiable to the parties for all dam- aj?e8 caused by his default. - 0. C. 876, awi. ; R. S. 5894. 448. After the jurors sum- iv;ned have been called and a Hulhcient number to form the jury are in attendance, either party may challenge the array on the ground of partiality, or of fraud, or of wilful miscon- duct on the part of the officer by whom the panel was return- ee*, or on the ground of such causes of nullity as may be found iri the summoning of the jurors oi in the making up of the lists or panel.— C. G. 377, am. ; Cri.n. Code, 666, § 1. 449. The challenge must be in writing, stating the causes of nullity relied upon, and must conclude by demanding that the panel be quashed.— O. C. 378. See Form, Sched. I. in ap- pendix. 460. The presiding judge de- cides the challenge, and may, if necessary, order the facts upon which it is based to be substan- tiated on oath.— O. C, 379. 451. If the challenge is pro- nounced valid, the party who applied for a trial by jury must obtain the issue of another Venire Facias.—O. C. 380. 452. If there is no challenge to the array, or if the challenge is overruled, the nrothonotary, in order to form the jury, pro- ceeds to call and swear in twelve of the persons summon- ed, following the order in which they appear on the panel, sav- ing the cases in which the selection is to bo made with reference to special qualifica- tions.— O. C. 381, rtwi. ; C. S. L. C, c. 84, s. 43. 453. In cases of a commer cial nature, the names of the merchants or traders summon- ed as jurors n\ust be called first, and if they are not in sufficient number, the jury is completed from among the other persons summoned.— O. C. 390, a mj. 454. Either of the parties may challenge for cause any per .on called to form part of the jury, before such person is sworn ; but where tnere are several parties on the same side they must join in making a (ih&Weuge.— New 171 part. O. C. 382; C«^. 601. 455. The grounds of chal- lenges to the polls are : 1. That any juror is subject to finy disqualification or dis- ability, as provided by law ; 2. Ihat any juror is r'».lated to or connected by affinity with any party to the suit, within the degree cf cousin -german, inclusively ; 3. Thatany juror is interested in the suit, or is not indifTerent between the parties.- iV^ew. O. C. 384 ; R. S. 2620 ; 58 Vic, c. 31, s. 6 ; Crim. Code, 668, ^§ 4, 5. Civil Code, a^ts. 26,36,365. 456. The court may, in its discretion, require the chal- I'-n^e to be reduced to writina: by the party making it. Neiv, Crim, Code 668, s. 6. See Form, Sched. J. in Appendix. h ' :i 60 TRIAL BY JURY. m ■i 1 457. The cliallenge is sum- marily decided by the two Jurors last sworn ; or, if two Jurors have not yet been sworn, by any two persons present who are appointed by the court, and who must be sworn to try the challenge impartially. If, after what the court con- siders a reasonable time, the triers are unable to agree, the court may discharge them from giving a decision, and may di- rect other persons to be sworn in their place.— O. C. 380, 387 ; Crim, Code, 668, s . 8, in fine. 458. The Juror himself may be examined on oath as to the matter of the challenge. —0. C. 388, am. 459. A challenge founded upon a judicial condemnation must be accompanied with an authentic certificate of such condemnation.- O. C. 389. 460. If several of the jurorf- summoned are challenged or fail to attend, or are exempt or incapable, so that the number of twelve duly qualified jurors cannot be completed, the c-.^art or sitting judge may with tie consent of the parties, but not otherwise, give an order in writing to the sheriff or the officer acting in his stead, to make up the number by taking forthwith from among the per- sons present in court the re- quisite number of individuals qualified to serve as jurors : bit the jury cannot be wholly ( )mposed of tales ; and if all lie jurors summoned fail to .attend, cr are Irwfully chal- lenged, the trial cannot then proceed. O. C. 31)1, a7ii. 401. If a juror called is not challenged, or if the challenge is overruled, he is sworn to try the matter at issue and t give his verdict in & just and im- partial manner according to the evidence. — O. C. 392. SECTION VI Proceedin{/s befor^e the Jury 462. Three days at least be- fore chat fixed for the trial, eacli party must deliver to the pro thonotary, for the use of th»' judge who is to preside at the trial, a copy of the pleadings necessary to join the issue, to gether with a /'ac^it wi or case, inclosed within a sealed cover, containing a statement of the facts of the case and of the an thorities upon which he relies. O. C. 393, am. 463. After the return of the Venire Facias on the day fixed for the trial, if neither party appears, the jurors are dis charged ; if the plaintiff aji pears and the defendant makes default, such default is recorded and the plaintiti" may proceeii ex parte; if the plaintilf alone fails to appear, his default is recorded, ana judgment of non suit is entered against him, with costs to the defendant. O. C. 394. 464 The plamtilV may also, at any time before verdict, with draw from court or abandon his suit, and a like judgment ol non-suit, with costs, is renderd •against him.— O. C, 395, am. 465. No paper can be read to the jury without leave from the judge, and, if it is not authen tic, it must first be proved. O. C, 396. 466. The prothonotary keeps, under the direction of tlic judge, fall minutes of the pro- ceedings at the trial, incluair.u; ail admi.»sions and all exce]) tions taken, or objections TRIAL BY JURY. 61 made, orally in court.— O. C. 397, am. Infra, art. 506. 407. A copy of such minutes is made out by the prothono- tary, and, after being certified by the judge, is tiled of record, and ia held to be the true re- cord of all proceedings men- tioned therein, and stands in lieu of any bill of exceptions by either party against the evi- dence or the trial.— O. (J. 398, am. Infra, art. 506. 468. The witnesses give their evidence orally in the presence of the jury, saving the provisions of articles 343, \m, 3.59 to 370, arid 380 to 390.— 0. C. 397, 399, 402, am. 469. Whenever the judge is of opinion that the plaintitHias given no evidence upon which a jury could find a verdict, he may dismiss the action. — New. Infra, art. 474. 470. The ordinary rules as to the conduct of cases inscribed for proof and hearing app'} , so far as may be, to jury trials. — New. O. C. 399a ; R. S. 5895. 471. The party upon whom the burden of proof lies opens the case and adduces Ids evid- ence. The opposite party in turn opens his case and adduces his evidence ; and upon the con- clusion of any evidence m re- buttal, or if there is no evidence in rebuttal upon the conclusion Civil Code, art. 1203. 472. When each party has stated his case and adduced his evidence, the judge, if he deems it necessary, sums up the evid- ence to the jury.— O. C 404. Infra, arts. .500, 500. Alii. If either party objects to the judge's charge, the judge must, either Immediately or as soon as he conveniently can, reduce to writing ♦^he portion of his charge which is objected to, mentioning the objection made. What is thus written is signed by the judge and forms part of the record in the case. — O. C. 405, am. SECTION VII Provinces of Judge and Jury 474. It is the province of the judge to declare whether there is any evidence and whether that evidence is legal. O. C. 406, am. Supra, art. 4(59. 475. The jury find the facts, but must be guided by tha directions of the judge as re- gards the law.— O. C. 407. SECTION VIII Verdict 476. When the case is finally submitted to the jury, they may render a verdict immedi- of his evidence, addresses the ; ately or retire for deliberation. jury upon the case The party who began is thereupon entitled to reply. If his opponent does not ad- duce evitience, the party who l>egan addresses the jury at the close of hi.s case, and the op- posite party then replies.— O. C. 403, am. ; R. P. O. 075, If they retire, they must re- main together in sone conven- ient place, under charge of an orlicer appointed by the court, until they agree upon a verdict. The officer so acting must not suffer them to communicate with any person, except by order of the court ; and he 62 TRIAL BY JURY. j'i must not, before their verdict is rendered, communicate to any person their deliberations or the verdict agreed upon.— New in part. O. C. 408 ; Cal, 613. 477. The judge may, never- theless, during the trial or while the case is under deliber- ation, permit them to separate, and order that they attend again at a specified time. If the jurors fail so to attend, they are liable to the penalties attached to contempt of court, without prejudice to the re- course of the parties against them for damages.— O. C. 408, s. 2, 409. Infra, art. 834. 4 7H. If the jury are permit- ted to separate, they must be admonished by the judge not to converse with or suffer them- selves to be addressed by any other persons in reference to the case.— iV^w'. Cal Oil. 470. The jury may at any time, even after the summing up by the judge, but in his presence and with his permiss- ion, in open court, examine again the witnesses already heard. They may also ask the opinion of the judge upon any questions of law which present themselves, ai^d may, with his pern)ission, take communica- tion of any document of record. — O. C. 410, am. 480. The agreement of nine of the twelve jurors is suffi- cient to return a verdict.— O. C. 411. 481. If nine of tlie 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.— O. C. 412. 482. The prothonotary, after ascertaining that all the jurors are present, receives their vc r diet and enters it in the regis ters oi the court, inserting their names, and stating the number of those who concur in the verdict if it is not unanirn ous.-O. C. 413. 483. When there is an as signment of facts, the verdict must be special, explicit and articulated upon each fact sul) mitted.— O. C. 414, am. Supra, art. 424 et s. 484. When the parties have agreed to dispense with an as signment of facts, the verdict is general, either in favor of tlie plaintiff for a specific sum, or in favour of the defendant.— O. C. 415. Supra, art. 426 . 485. 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 1 y either party, the jury are (!is- charged without rendering a verdict, with costs against tlio party who demanded a trial l)y jury'. Such costs include the costs incurred upon the trial and the allowance for the jurors ; and such allowance is paid them as soon as it is recovered by the prothonotary. The defaulting party is there \ipon deprived, by the operation of law, of his rignt to a trial t)y jury.— O. C. 416, arn. 486. The prothonotary, in the case of such default to pay. nmst immediately issue, against the party condemned to costs, a writ of execution, to be enfon cd by the slieriff, for the recovery TRIAL BY JUHY. 63 of the allowance due the jurors. -0. C„ 417. 187 The verdict must be given upon all the issues submit- ted to tne jury.— O. C. 418. 488. The verdict cannot in any manner pronounce upon the costs.— O. C. 419. 480. The presiding judge may order the amendment of any clerical errors that have oc- curred in any proceeding in the case befot ' the jury or in the verdict.— O. C. 420, § 1. l.ifra, art. 518. 4B0. If at any time before ver- dict a juror becomes, through illness or any other c use, un- able or in default to perform his duty, the judge may adjourn the case, or order him to be dis- charged ; and, in the latter case, tlie trial may proceed with the remaining jurors, or another juror may be sworn and the trial be begun anew, or the jury may be discharged and a new jury be impanelled to try the Qma.-New. O. C. 420, §§ 2, 3; (kiL 615 ; C. I. C. F. 394; Dalloz Rep. vo. *' Instruction Crim- inelU;' Nos. 1846, 1804, ss. SECTION IX Judgment after Verdict 401. The trial judge must, either at once or after a delay for further consideration, ren- der judgment for the party in whose favour the verdict has been given, unless for special causes stated in a certificate filed of record, he reserves the case for the consideration of the Court of Review.— ATc?/', R.P.O. 682. Supra, art. 51. SECTION X Remedifs against Judgments, and Proceedings in Reserved Cases § 1. — ()ENERAL PROVISIONS 492. An appeal lies from the final judgment rendered by the trial judge, in the same manner as from any final judgment of the Superior CowTt.— Neir. 403. The appellant must an- nex to his inscription in review or appeal a statement in concise language of the grounds upon which he relies, with conclus- ions tor a new trial, or for a different judgment, or alter- nately for any of these reme- dies.— A^^jr. 404. When the trial judge has reserved the case for the consideration of the Court of Review, a party may move be- fore that court for judgment in accordance with the verdict. A motion may also be made for a new trial or for a judg- ment different from the verdict, or, alternately, for any of these remedies. A statement of rea- sons similar to that mentioned in the preceding Article must then be annexed to the motion. The motions must be made be- fore the Court of Review on the first or second day of its next term beginning at least ten days after the day on which the case was reserved. — New . Supra, art. 51; infra, art. 1191. 405. The judgment of the Court of Review, rendered in the exercise of its original jur- isdiction in reserved cases, is executory and subject to appeal in the same manner as any nnal judgment of the Superior CourU—New, ^- J 64 TRIAL BY JURY. 496. The Court may, in all cases where the judgment of the trial judge, or the verdict in a reserved case, is attacl/?. Supra, arts. 493, 494, 496. 400. The defects in the as signment of facts must be such as to prevent a trial of the material issues, and it must be shown that an objection stating the necessary amendment was made and overruled before vor diet rendered.— O. C. 426, s 1, am.; Cannon vs. Huot. 1 Q. L, R. 139. Infra, art. 506. 500. A new trial is not granted on the ground of mis direction, or of the improper admission or rejection of evi dence, unless some substantial prejudice has been thereby oc casioned ; and, if it appears that sucli prejudice att'eci^ a part only of the matter in eon troversy, the court may diiect a new trial as to such is>-iies only.— New. O. C. 426, ss. 2, :<, 4; Enq. R. 556 ; R. P. O. 791. Infra, art. 506. 501. A verdict is not eon sidered against the Aveiglit of evidence unless it is one \\ hicli the jury, viewing the whole of the evidence, could not reason ably f\m\.—New. O. C, 420, ^ 13; Metropolitan By. Co. vs. Wright, 11 App. Cas. 152. 502. A new trial is granted whenever the amount aw.mle'i is so grossly excessive or in sufficient that it is evident that the jurors have been influenced DECISION OF QUESTIONS OF LAW. 65 by improper motives or led into error.— O. C. 42t5, s. 11, am. 503. If the amount awarded by the verdict is p:rossly exceH- sive, the court may refuse a new trial, provided th?.t the phvintitr aj?rees that it be re- duced to an amount which the court considers not excessive. Neu: O. C. 426 ; Belt vs. Lawes, 12 Q. B. D. 356 ; Mail Print ing Co. vs. Laflamme, 12 L. N. 33 ; Taylor vs. Northern Assur, Co'., 'So, L. C. J. 6. 504. If the amount awarded by the jury is grossly inauffic- ieni. the court may also refuse a new trial, provided that the defendant agrees to its being increased to an amount which the court considers not insuflfic mn.~Neiv. Belt vs. Lawes, 12, Q. B. D. :358. 505. The discovery of new evidence since the verdict is ground for a new trial only when the party applying there- for shows : 1 That the evidence is such that, if it had been brovight for- ward in time, It would probably have changed the result ; 2. That at the time he might so have used it, neither he nor his attorney or agent had knowledge of it ; 'S. That it could not, with reasonalile diligence, have been di>)/. Ibid. 516. In all cases not provided for by the preceding articles, the parties may, at any time be- fore judgment, with the leav.- of the judge, upon such coiidi tions as are aeemed proper, amend the writ of summons, the declaration, the defence or any other pleading. — iWnv, (). C. 117 ; R. P. O. 390, 429, 444 ; N. Y. O. 497. 517. If any copy of a plead ing is incorrect or diflferent from the original, the party who swerv- ed it, may, before the service of an answer to the same, furnish a correct copy thereof to the other party, without leave of the judge, and with such leave after the service of the answer, upon such conditions as are deein.J proper— O. C. 118, am. 518. The judacemay, witliout being thereto moved, at any time before judgment and upon such conditions as are deemed proper, order the im mediate amendment in any pleading of errors of expression, calculation or writing, and of any other irregularities of form which do not cause a prejudice. AMENDMENTS. 67 -Xnr. R. C. C. S. 240 ; R. P. O. 446. 51». The judp;e may gmnt leHve to amend .iny error ap- pearing in a return made by a sherifT, bailifi" or other author- ized person. -O. C. HO, 159. nni. Si(pr((, art. 116. oiJO. The judge may, at any time before judgment, upon such conditions as lie considers just, allow a pleading to be amended so as to agree with the facts proved ; and a pleading is surticiently sustained if the facts alleged agree sufticiently with the facts proved, and if, in the opinion of the judge, the opposite party has not been led into error as to the real nature of the facts intended to be al- leged and proved.— O. C. 320, am. Supi'd, art. 110. 521. Non-joinder in the suit of a person whose presence is necessary does not entail nullity if by amendment he is made a party to the SLction.—New. F. C. C. S: 176^ ; R. P. O. 324 ; N. Y. C. 723. Supra, arts. 177, s. 8 ; infra, 525. 522. No amendment can be made or allowed if it changes the nature of the demand. The court may, nevertheless, at any time before judgment, allow the conclusions to be cor- rected, modified or even en- larged, provided that the facta alleged give rise to the new re- lief demanded. —iVce rendered in open court, except in matters within the jurisdic- tion of a judge in chambers, and in the cases stated in articles 529 and 532.-0. C. 469, (till. Supra, art. 70. 5:i8. Whenever a judge who has heard a cause is unable, on account of illness, absence or other cause, to render judg- ment in person he may trans- mit the draft of the judgment cert i (led by him, to the protho- notarv, with instructions to record such judgment, and to reafl it or to give communica- tion of it on demand, to the par- ties or to their attorneys, on the day which he fixes for that purpose. The prothonotary, on receiv- ing the draft of judgment and the instructions a''companying it, is obliged to conform to such instructions ; and the judg- ment so en registered has the same etlect as if it had jeen rendered by the judge (-aring the sitting of the court.— O. (J. art. 469rt, am.; B. S,, 5*;j2. mat. Judgment In a suit which is under advisement can- not be stayed ()y reason of the death of the p.irties or of their attorneys.— O. C. 4(58. Sujt7-a, arts. 259, 206, 267. i54<). If a 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 obtains leave of absence, he may render judgnjent as if no change had taken place.— O. C. 408. 541. Every judgment must mention the cause of action, and must be susceptible of exe- cution. In contested cases it must moreover contain a summary statement of the issues of law and of fact _ '\ised and decided, the reasons upon which the de- cision is founded, and the name of the judge by whom it wan rendered.— O. C. 472. 542. Every judgment for 70 008TS. (lainaK<^s must c-ontHln a li(|ui- dalioii tluireof.— O. C. 471. 5i:i. Kvery judgment con deniniMK a party to the rostitu- tion of rent--, issues and jjrolits must order the liijuidation thereof ; and thiH is done Uy experts, if tlie ease recpiires it : and the party condemned is hound for that purpose to pro- duce all accounts and docu- ments showing? the receipts, all leases of immovables, and a statement of the cost of tilling, sowing and harvesting incurred by him.- O. C. 475. Sufrra, art. 892 et s,. CU-il Code, art. 410 et s., 417, 012, 1540, 2070. 544. The judgment must be entered without delay in the register of the court, in con- formity with the draft paraphed by the judge. -O. C. 473. 545. In the case of diUerence between the draft and the en- try thereof in tlie register, the draft ia to be followed ; and the court may, without any for- mality, order the rectification of the register.— C. C. 474. 540. The judge may, at any time, at the instance of one of the parties, correct any clerical error aflectin.^ a judgment.— Ntnv. 547. Unless where it is ex- pressly ordered, or where there is a provision of the law, or in the case of Judgments in recog- nition of hypothecs rendered against defendants having a known domicile in the Prov- ince, it is not necessary to have the judgment served on the party condemned. — O. C. art. 470, am. Supra, art. 188 ; infra, arts. 089, 908, 1031. 548. A party may, on giving notice to the oppo^^ite party, re- nounce either a part only or the whole of any judgment reiiilcr ed in his favor, and have Mich renunciation recorded by the prothonotary ; and, in the ml ter case, the cause is place.">7. Whenever witnesses are summoned from beyond the jurisdiction, their expenses can- not be taxed against the op- posite party for more than it would have cost to examine them by means of a commission, unless the judge otherwise orders.— O. C. 4»0. UTIH. In the cases of articles I'M and 2JK», no greater costs of s»'rviee can be allowelltH I. Pl'TTIN(i IN SkCURITY II. AC('OUNTIN(} 5««. III. SrUKKNDEH 570. IV. Tkndkk and Payment INTO CouiiT 583. SECTION I Puftlnn in Security 55f). Every judgment order- ing security to be given nmst fix the time within which sureties si.all be ollered. The security-bond is entered into at the otHce of the court.— O. C. 514, am. ; 51.5. Civil Code, art, 1U62 et s. 560. Sureties are offered after notice served upon the op- posite party.- O. C. 515, am. Suj)ra, art. 182 ; infra, art. 915. 561. Except in cases where the law requires only personal justification, a surety may, if he is objected to, be required to give in a declaration of his real property, together with his titles thereto. Sureties may in all cases be required to justify their suffi- ciency on oath.— O" C. 516, am. Infra, arts. 833, s. 3 ; 1215, I 1249 ; Ciril Code art. 1939. 502. A surety may be ob- I jected to : 1. If he has not the qualifica- tions required according to the !-^.: 72 ACCOUNTING. V\i\e Of Suretyship in the Civil Code ; 2. II" he is not suHifient.— O. C. 517. Civil Codt' !»:» et s. ; K)G2 et s. 503. The suttlciency of a surety is decided upon tlie documents and affidavits pro- duced, without pi oof being ordered.— O. C. 518. 564. If the surety is accept- ed, the bond is drawn up and entered into in conformity with the judgment, and remains in the office of the court as part of the record in tlie case.— O. C. 51{). 505. The acceptance of sureties is decided upon sum- marily, A ithout any petition or writings, and the bond is entered into notwithstanding oppositions or appeals, and without prejudice thereto.— O. C. 520. SECTION II Accouvting 500. Every judgment order- ing an account must fix a delay for rendering it.— O. C. 521. Infra, art. 594, s. 6. 567. The account must be rendered nominately to the party entitled to it ; it must be sworn to and be filed in the office of the court within the delay fixed, together with the vouchers in support of it. The judge may, however, up- on motion, extend the delay for rendering the account.— O. C. 522, am. 568. The account must con- tain, under separate heads, the receipts ana expenditure, and close with a recapitulation of such receipts and expendi- ture, establishing the balance ; whatever remains to be retov ered is reserved for a sepuiatf head.— (J. C. 523, a///. 569. Under the head of le ceipts nnist be placed all sums which the accounting party has received, and all those thai he ought to have received du'iiicj his management.— O. C. 524. 570. The accounting partv cannot place under thenead of expenditure t e costs of ilu' judgment ordering him to ; .• i count, unless he is authorized to do so by the court ; bu( he may charge under that luud ! his travelling expenses, the at tendances of the attorney wlio i made up the account, the cost I o-f preparing, presenting and I verifying it, and of whatever copies thereof are reav } ing the right of the other par ties accounted to, to employ at- torneys of their own, upon pay SURRENDER. Td nient of all coats occasioned thereby. -O.C. 528, am. 574. The tccounting party has a delay of six days after the tiling of the contestation to file ills answers in support of his account, and the other party has a similar delay to file his re- plications.— O. C. 529, am. 573. In default of Hiing the contestations, answers or repli- cations within the delay fixed, the party so in default in held to admit whatever is contained in the document he fails to con- test.— O. C, art. 580. 570. After the issues are com- pleted the parties proceed to trial in the ordinary manner ; but the court may, at any time before judgment, refer the case to arbitrators, or to a practi- tioner or accountant, according to its nature. — O. C. 531, «wt. Svpra, arts. 410, 411. 577. The judgment upon the account must contain a comput- ation of the receipts and ex- penditure, and establish the Dahuice if there is any.— O. C. 532, am. Infra, ar^s. 833, 836. 578. If the defendant fails to render an account, the plaintiff may proceed to have one made out in the manner mentioned in Article 568.-C. C. P. 533. SECTION III Surrender' 570. The voluntary execution of any judgment ordering the restitution and delivery of any movable or immovable is effect- ed, unless the judgment other- wise provides, by delivering the movable object or surrendering the possession of the immov- able, in such a manner that the party entitled thereto may take possession of it ; and this must he done in conformity with the judgment and the provisions contained in the title Of Obliga- tions in the Ciril Co(h.—0. C. 534. infra, arts. (510, Oil: Ciril Code, nm et. s. 1164, 1105, 1200, 1492, 1499. 580. The voluntary execution of a judgment ordering the sur- render of an hypothecated im- movable is effected by means of a declaration of the defendant, in the office of the court, to the effect that he makes such sur- render in compliance with the judgment, and by his relin- quishing his possession.— O. C. CiHl Code, arts. 2075, 2077, 2079. 581. When an inmiovable is thus surrendered, the judge, upon application by the plain- tiff, or by any other creditor if the plaintiff" fails to so apply, ap- points a curator to the surren- der, against whom all ulterior proceedings are directed.— O. C. 536, am. ^ivil Code, arts. Ml, §5 ; 348. 582. The curator has a right to collect the rents, issues and profits due and accrued from the time of the surrender, and may even grant leases if the sale is prevented during any considerable time. The rents, issues and profits of the immovable surrendered are treated as realty, and are distributed in the same manner as the price.— O. C. 537. Ciril Code, art. 2076. SECTION IV. Tender and Payment into C ourt 583. A tender or a putting 'n i ii\\ ]. < h'] 74 EXAMINATION OF DEBTORS AFTER JUDGMENT. default to accept must describe the object offered ; :'nd, if it be of money, it must (-on tain an enumeration and description thereof. -O. C. 5:^. Civil Code, nvt 1162, et. «. 58 i. Tender maybe made by an authentic document, or In iny other manner which admits of its being legally proved. Tender may be made in a suit by demandinf^ record thereof, and must be accompanied with payment into court.— O. C. 539. ^upra, art. 170 ; Civil Code, lies, 123:}. 5«5. Tender may be made at the doinicile elected in a con- tract. -O. C. 540. Civil Code, art. 85. 586. The authentic document recording the tender, if there is one, must state the .answer made by the creditor or by the person representing him, the fact of his being called upon to sign such answer, and of his h.iving signed, or of his having refused or declared himself un- able tosig)!. — O. C. 541, am. Civil Code, art. 1209. 587. A debtor who has made a tender and is afterwards sued may renew it in his defence and pay the amount into court. However, if the debtor has regularly deposited the sum in the general deposit office of the Province, the production of the receipt for such deposit avails in lieu of the renewal of the tender in the defence. -.0. C. 542, am.; R. S. 5912. Civil Code, arts. 1162, 1823. 588. Moneys paid into court cannot, without the authoriza- tion of the court, be withdrawn by the party who paid them in. Unless the tender is condi- tional, the paity to whom it is made is entitled to receive the moneys paid in, without preju- dicing his claim to the remain der. -O. C. .543. Civil Cede, arts. Um, 1167 589. The expense of the ten der is borne by the debtor ; bnt, if it is declared sufficient, the costs attending the payment into cour' are borne by the creditor.- -J. C. 544. Civil Code, art. 1143. CHAPTER XXVIl Exaiiiiuation of Debtors After Judgment. 500. Upon the return of a writ of execution accompanied with a certificate oinulla bona, or a certificate that it has been satisfied in part only, the crcli tor at whose instance the exo cution issued may summon any of the following persona to up pear before the judge or the prothonotary, to answer su'^h questions as may be put to i them concerning the debtor^s property and assets : 1. The debtor : 2. AVhen the debtor is a cor poration, the president, man;i- ger, treasurer or secretary of such corporation : 3. When the debtor is a tor eign firm or corporation doinf? business in this Province, *^lie agent of such firm or corpora tion. New. R. P. O. 926, S»iS; Eng. li. 610 ; Cal. 714 : N. Y. C. 1871, 1878. 591. The judge may, at tlie instance of the creditor, order the production of any books or documents relating to the mat- ters mentioned in the preceding Article, as well as the examina- tion before the judge or the prothonotary, of any persons whom he considers capable of giving information about such PROVISIONAL EXECUTION — EXEMPTIONS. 75 matters.— New. Eng. K. GIO, (jll : R. P. O. 927. .'^U2. The rules jjove ruing the isuninioning, exatninatioii and punishment of witnesses, and the takipprof evidence, al^o ap- ply, in so far as may be, co the cases mentioned in the two pre- ceding Articles. If any dispute arises during the examination before the prothonotary, the parties are sent before the judge to have it decided.— iVe?<'. 50JJ. Tlie costs of such ex- amination form part of the costs of the execution, unless the judge orders otherwise. — New. Evg. K. tU2. CHAPTER XXVIII. Provinional li]\ccutiou 594. Provisional execution may be ordered, upon appUca- ' ion of the party, notwithstand- ing any review or appeal, and with cr without security being re(juircd, in any of the follow- ing matters: V Actions based upon authen- tic acts or private writings ; 2. Possessory actions ; 3. Affixing and removing seals, or making inventories ; 4. Urgent repairs ; 0. Ejectment, when there is 1.0 lease, or the lease has ex- pired or has been cancelled or annulled ; 0. Appointments of tutors, curators or other administra- tors, and rendering accounts ; 7, Alimentary pensions or Jillowances ; 8. Judgments of sequestra- ixon.-Neir. Ord. 1667. Tit. 17, Arts. 13, 15 ; C. P. C. F. 135 ss.; C. P. G. 315, 310. O. C. 885. Supra 565, infra 1199, 1214. 505. Provisional execution ' cannot be ordered for costs, even w!;on they are awarded in I lieu of damages.— JVe?r. C. P. I 590. If the court omits to : Older provisional execution, it cannot thereafter be allowed ex'ept upon review or appeal. -Neu\ C. P. C. F. 136. 597. The court before which the appeal is brought, when- ever the application is made during term, or two judges of the Court of Queen's Bench or of the Superior Court, according as the appeal has been taken to the Court of Queen's Bencli or the Court of Review, whenever the application is made out of term, is empowered : 1. To allow provisional exe- cution, when it has not been allowed in any case wherein it lies ; 2. To refuse provisional exe- cution, when it has been allowed in any case wherein it does not lie by law ; and, ac- cording to cireumstances, to refuse or stay such execution in other cases ; :>. To order that security be given by any Darty who was exempted from doing so by the court of original jurisdiction at the time when the judgment was rendered allowing provis- ional execution. New. C. P. C. F. 458, 459 ;C. P. G. 317, 318. CHAPTER XXIX. ExeniptionM from Seizure 59S. The. debtor may select and withdraw from seizure : 1. The bed, bedding and bed- steads in use by him and his family ; 2. The ordinary and necess- ary wearing apparel of himself and his family ; 1 t r- ^ I 111 t. 76 EXEMPTIONS FROM SEIZURE. 8. Two st.ove.s and tlieir pipes, one pot-hook and its access- orie.s, one pair of andirons, one pair of tonjjjs and one nliovel ; 4. All the cookinjj; utensils, knives, forks, spoons and crock- ery in use by the family, two tables, two cupboards or dress- ers, one lamp, one mirror, one washinjjj-stand with its toilet accessories, two trunks or val- ises, the carpets or matting covering the Hoors, one clock, one sofa and twelve chairs : pro- vided that the total value of such effects does not exceed the sum of fifty dollars ; 5. All spinning wheels and weaving looms intended for domestic use, one axe, one saw% one gun, six traps, such fishing nets, lines and seines as are in common use, one tub, one wash- ing machine, one wringer, on- sewing machine, two pails, three flat-irons, one blacking brush, one scrubbing brush, one broom ; (). Fifty volumes of books, and all drawings and paintings executed by the debtor or the members of his family, for their use ; 7 Fuel and food sufficient for the debtor and his family for three months ; 8. One span of plough -horses or a yoke of oxen, one horse, one summer vehicle and one winter vehicle, and the harness used by a carter or driver for earning his livelihood, one cow, two pigs, four sheep, the wool from such sheep, the cloth manufactured from such wool, and the hay and other fodder intended for feeding the said animals ; and, moreover, the following agricultural tools and implements : one plough, one harrow, one working sleigh, one tumbril, one hay-cart with its wheels, and all harness neces- sary and intended for farminif ])urposes ; 0. Books relating to the pro- fession, art or trade of the dtutor, to the value of two hundred dollars ; 10. Tools and impknnentsniid other ch ittels oruinaiily u.>e(l in his ])rofession, art or trade to the value of two hundred /i., 55(}, s. o, in ]JO,rf ; R. S. 591H ; h'l Vic, ch. 50, .N. 4 ; 54 Vic, c 12, s. 2; O. C. 628 am.; R. S. 50H1 ; ;)4 Vic, c. 12, s. 3 ; O. C. 632, 557. 13. All pensions granted by financial or other institutions to their employees, by means of retiring funds or peii iion funds established among the said em- ployees, as well as the instal- ments paid, or to be paid, tc form such pension funds and to give a rigiit to the benefits aris- ing therelTOm. 62 Vic, c. 53. ClHl Code, arts. IIJK), §3, 1911, 1980, Infra, arts. 645, 697, 722, 861, 870. ' CHAPTER XXX Compulsory Kxetuitioii of Judginontt^ I. Gkneral Provisions 600. II. Execution in Real Ac- tions 610. III. ExEc;uTioN IN Personal Actions 612. §1. General provisions 612. J? 2. Execution upon movable property. (1) Seizure of movable prop- erty 617. (2) Oppositions to seizure of movable property 644. (3) Sale of movable property 655. (4) Return of the writ, pay- mer*^ and distribution of the moneys levied 670. 1 "'''^'S^a^''"" 78 COMPULSORY EXECUTION OF JUDGMENTS. §3. Seizure by garnishment 677. §4. Execution upon immov- ables. (1) Opposition to annul 723. (i^; Ippositions to withdraw 723. (H) Oppositions to secure charges 724. (1) Oppositions to charges up- on immovables under seiz- ure 720. (.")) General provisions as to Bidding and Sale 735. Resale for false Bidding 761. Return of Executions 768. ElTects of Sheriirs Sales 7 7». Vacating Sherifl"s Sales 784. Oppositions for Payment 789. Payment of the Moneys with- out Collocation 703. Collocation and Distribution of Moneys 704. Sub-collocation 824. , Payment of Monies licvied | 828. IV. Arrest in Civil Matters ] AND COKRCIVE IMPRISON- MENT 832. SECTION I General Provisions eoo. The judgments of a court can be put into execution only by means of a writ issuing in the name of the Sovereign. — C. C. P. 515, in part, am,.; 11. S. 5913. Infra, art. 1247. 06l. h]xcept where it is other- wise provided, the writ is ad- dressed to the sheriff or a bailiff of the district in which it issues, who may execute it in such dis- trict or in any other district, or to the sheriff or baiHffof the dis- trict in which it is to be exe- cuted. If the writ is addressed to the sheriff, he may have it executed by his officer -.—C. C. P. 545, in part, am.; R. S. 5913. 602. It must mention the date of the judgment to be exe- cuted, be attested and signed hy the prothonotary, and be issued by him upon the written requisi tion of the party prosccn ting t lie execution.— O. C. 545, am.; R. S. 5913. 603. It remains in force while unsatisfied.— JS^/' jr. 604. Whenever a writ of exe- cution is lost or destroyed, the creditor may, with the leave of the judge, obtain a new one. If, however, it appears by the return of the otticer charged with the writ so lost or dt troy- ed, that property was seized thereunder hut not sold, the creditor may, in like manner, obtain a writ of Venditioni Ex- ponas commanding the com petent officer to proceed to the sale of the property seized.— New. O. C. 579, am. eOR. In the event of the death of the debtor, or of his change of status, the execution com- menced upon his property is continued against him, his heirs, representatives, or as- signs, as the case may be, with out suspension or continuance of suit being thereby rendered necessary. If execution has not been so commenced, judgments cannot. I on pain of nullity, be executed I against the debtor, his heirs. \ representatives, or assigns, un- I til the expiry of eight days after thev have been served upon such parties personally or at their domicile or ordinary rtsi- dence.— xVf'j/'. O. C. otO ; C. P. (J. 399, 400 ; Bellot 153 ss. Supi'a, art. 135. Civil Code, art. 735, et. s. EXECUTION iN PERSONAL ACTIONS. t9 006. The proviaiona of article 13;'), governing execution upon proj)erty left by a deceased (lel)tor, do not apply to execu- tion upon the private property of tlie heirs, representatives or assigns of the debtor.— iY«M?. ('. r G.402; liellot, p. 155. «C7. If the judgment does not order a thing that is purely personal to the plaintiff, it may fu' executed in his name even after his death ; but if any con- testation arises upon the execu- tion, the representatives of the deceased party must intervene in t he contestation.— O. C. 547. Civil Code, art. 1030. 008. When the judgment or- ders the performance of any pliysical act, the otticer charged with its execution may use the force necessary for that pur- pose ; observing, however, at the same time, all necessary formalities. — O. C. 548. Civil Code, 1065, 10(56. 000. The previous execution of a .rit renders a demand of paynientunnecessary under any subsequent execution in the same auit. — O. C. 548a, a»t.; R. S. 5914. SECTION II Execution in Real Actions 010. When a party con- demned to surrender or restore an immovable refuses to do so within the delay prescribed, the plaintiff may obtain a writ of )08session to eject him and to )e placed in possession.- -O. C. .>i9. Si'p7'a, art. 579; iiA/ra., art. 102a, 106(). Oil. The officer intrusted with the execution of such writ must be accompanied by one witness, and , must uraw up a minute of his proceedings.— O. C. 550, ron. Supra, art. ($08. SKCTION III Ejcecution in Personal Actions ^ 1.— <4r;NKRAL rUOVISIONS <112. .Judgments for the pay- ment of a sum of money cannot hi' executed before the expiry of fifteen daya from their date. Nevertheless, upon anapplica- tionof the creditor accompanied with an attideavit establishing circumstances under which sim- ple attachment might issue be- fore judgment, the judge may allow execution to issue before the expiry of fifteen days, but the sale cannot take place any Booner than if the writ of execu- tion had issued after the ordin- ary delay.— O. C. 551, am. Supra, art. 92 ; infra, arts. 689,931, 1160. 613. A creditor may seize in execution the movable or the im- movable property of his debtor, in such debtor's possession, as well as any corporeal movables in the possession of the creditor or of third parti'is who consent thereto.— O. C. .-55.3, am.; R. S. 5915. Infra, arts. 641, (577. 614. A creditor may exercise at the same time the different means of execution allowed him by law. He may cause the movable and immovable property to be seized under the same writ, but he cannot proceed to the sale of the immovables until after the movable property has been dis- cussed, saving the special ])ro visions concerning building so- cieties, cases of pledge, and the case mentioned in article 1032, 80 EXECUTION UPON MOVABLE PROPERTY. judgments rendered for the re- covery of rents constituted un- der the Seignorial Act of 1854, and judgments declaring hy- pothecs. Nevertheless, a sub- sequent writ may be noted as an opposition for payment without again discussing the movable property.— iVe*r, in part ; O. C. 554, am. C15. "When the creditor has received part of his judgment claim, he must make mention of it on the back of the writ of execution.— O. C. 555, § 3 ; R. S. 5910. 616. When the property to be seized is at a distance of more than nine miles from the place where the writ issues, or from the office or from the domicile of the officer to whom the writ is addressed, such offi- cer is, upon the written demand of the creditor or his attorney, obliged to employ a bailiff des- ignated by the creditor, and re- siding in the locality in which the movable or immovable prop- erty is situate, to make the seiz- ure, publications and adjudica- tion. The seizing creditor may like- wise, to save costs, undertake the transmission of the docu- ments relating to the execution, and the bailitt must hand them over to him.— O. C. 555, 34, 835, am.; K. S, 5916. §2— EXECUTION UPON MOVABLE PROPERTY. I.— Seizure of Movable Property 617. In the seizure of mov- able property in execution, the writ is addressed to the sheriff or a bailiff of the district in which the writ issues, who may execute it in such district or in any other district, or is ad- dressed to the sheriff or a bailiff of the district where the debt- or's movable property is situ- ated, or in which the debtor has his domicile, ordering him to levy the amount of the debt, t he interest, and the costs both of the suit and of the execution. - O. C. .555, ss. 1, 2, am.; R. S. 59I(). 618. The seizure cannot be made before ficven o'clock in the morning, or after seven in the evening, without the leave of the judge or of the prothoiio- tary, except in cases of fraudu- lent removal. It may, if necessary, be con- tinued on the following days, upon aflBxing seals or placing guards.— O. C. 574, am. 619. Seizures cannot be made on Sundays or holidays without the leave of the judge or of the prothonotary, except in cases of fraudulent removal, or where the property is found upon the highway.— O. C. 575, am. 620. If the debtor is absent, or if there is no person to open the doors of the house, cup- boards, trunks, or other closed places, or in the case of refusal to open them, the seizing officer must draw up a minute of the fact ; and thereupon the judge, or in his absence the prothon- tary, may order the opening to be effected by all necessary means in the presence of two witnesses, and with such force as may be required, without prejudice to coercive imprison- ment in case of refusal, violence or other physical inipediment.— O. C, 569, am.; R. S. 5921. Infri., art. 834. 621. The officer making the seizure is bound to accept a sol- vent depositary offered by the debtor, and in such case he is not answerable for the acts of the depositary, if he proves that IXEOUTION UPON MOVABLE PROPERTY. 81 when he accepted hlin such de- positary was solvent to the amount of the property intrust- ed to his care.— O. C. oGO, §7; H. S. 55)20. f'iril Code, arts. 3«o, 1823, ets. 623. The seizing officer can- not take, as ^^'^-rdians or de- positaries of the things seized, his relations or connections, to the degree of consins-gernian, or the jddgnient debtor, or his wife or children, on pain of be- ing liable for all costs and dam- ages. All other relations, by blood or iUlinity, of either party, may heippointed.— O. C. 560, ss. H, 9, am.; R. S. 5920. «I2;{. If the movable property has already been seized and the debtor dispossessed, any cred- itor making a second seizure is hound to name the same guard- ian, who is bound to accept, and can be discharged only by the sale of the property so seized, the consent of all the seizing parties, or the order of a judge. —0. C. 577, nm. (134. The guardian or de- positary has a right at the time of his appointment to remove the property under seizure in order to keep it in charge, and to phice guards, if necessary, in the place where it is.— O. C. 562, §1. 085. If the person appointed guardian or depositary becomes, while the seizure lasts or is sus- pended, insufficient to be re- sponsible for the property seized, the judge may authorize the ap- pointment of another person sufliciently solvent or reliable, and may order that the prop- erty seized be placed under his care or in his possession by the sheriff or a bailiff, after a veri- fication and inventory of the whole has been made. — O.C. 5«2, § 3, avi. 68«. The seizing officer may demand in advance from the party suing out the writ, or his attorney, such sum as may be deemed sufficient by the judge or the prothonotary for the safe- keeping of the effects seized. — O. C.5f)8, 817, ^Tm. 627. As often as the sum so advanced is expended, he may renew such demand ; and, if the amount fixed by the judge or prothonotary is not p:;'d within the delay prescribed, the seizure is discharged.— O. C. 568, 848, cDn. 02H. If the seizing oflicer cannot find a responsible guar- dian or depositary, he may, after serving the minutes upon the debtor, have the thiiigs taken away and removed to a place of safety, until he obtains such a guardian or depositary.— O. C. 562, § 2, am. 629. The seiztire of movable property is recorded by minutes made by the sheriff or his deputy, or by a bailiff author- ized by him to that effect, or by the bailiff intrusted with t.ie writ of execution.— O. C. 559; R. S. 5919. 030. The minutes must con- tain : 1. Mention of the present domicile of the creditor ; 2. Mention of the writ of exe- cutiou, its date and its purport ; 3. A description of the things seized, their number, weight and measure, according to their nature ; and, in addition, in the case of the seizure of a regis- tered vessel, a copy of the cer- tificate, of ownership of such vessel, or of the principal con- tents thereof ; 4. The appointment of a guar- 6 ,1,1 82 EXECUTION UPON MOVABLE PROPERTY. I m .?;■ dian, or the name of the deposi- tary furnished by the debtor; 5. Mention of the day and hour when the seizure is made ; 0. The signature of the guar- dian or depositaiy, and ot the witnesses, in the case of art- icle (520, or mention that they cannot sign, and the signature; of the sei'^ing officer. The debtor must also, if he is present, be called upon to sign the minutes ; and entry must he therein made as to his being so called upon, and as to his re- fusal or inability to do so or his absence.— O. C. nfif), s.s. 1 to 0, 10, om.;R. S. 5920. OiJl . If current money is seized, mention of its kind and quantity must be made in the minutes, and it must be re- turned with the other moneys levied.-O. C. 564 TfifradlO. 632. The minutes must be made and signed in triplicates, one of which must be given to the guardian or depositary, and another to tlie debtor. ~0. C. 561, am. 633. If the debtor has no domicile, residence or place of business in the district in which the judgment is rendered, the triplicate of the minutes of seizure is left for him at tlie office of the court.— O. C. 570, «m.;R. S. 5922. 634. If the things seized are of a perishable nature, or are liable to deteriorate, the judge may order them to be sold, and the proceeds of the sale to be deposited in the office of the court. — O. C. 872, «m. 635. Immediate notice must be given to the debtor and to the guardian or depositary, of the place, day and hour at which the movable property will be offered for sale. If the debtor has no domi( ilc, residence or place of business in the district in which the judgntent was rendered, ttie notice may be addres.sed to liim and left at the office of tin court.— O. C. 571, am.; H. S. 502M. 636. Sales of movable pro- perty cannot be conmience«l In- fore ten o'clock in the momiii^, or continued after live in the afternoon . — A'etr . 637. The jtKlge may, uiion the application of any inten >ted pa.'^ty, allow the seizing ollicor to remove the prnpcity uiuUr seizure to any other specitied place, so as to sell it there, if it can so be sold to greater a72, am. Supra, art. 612. 630. In the cities of Quelle, Montreal, Three Rivers, Slur brooke, St. Hyacintheand Sorel and in the towns of St. Johns. the sale of movable propcrtv under seizure is advertised In OPPOSITIONS TO REIZURl, 88 IMI, 1 lit liulc lit e muni- lublica- to tllf 1 lace 1)1- days, tn day of 1 .^72, J dims, property ii^ei\ In ft notice atntinK Nunimarlly the nanioH of the parties, the nature of the eirects, and the place, day and hour of sale, inserted in French in a newspaper pub- lished in that lanKua^e, and in English in a newspaper pub- lished in the English language, and if there should be but one paper in the place, or if all the papeis are published in but one of such languages, then the no- tice must he inserted in both languages in one paper. A duplicate of such notice must be posted in the sheritr's oftice from tue time of such advertisement in a newspaper until the day of the sale. The sale cannot take place until after the expiry of eight days from the day of such pub- lication. — O. C. 573, am ; R. S. 3924. 640. If the movable property has been provisionally attached before juugment, it la not neces- sary to proceed to a verification, hut it is sufficient to give notice to the debtor, and to the guar - ian or depositary, of the placu, day and hour of sale, as pre- scribed in article (Wo, and to give the notice required bv article 638 or article 639, as the case may be.— O. C. 570. 641. Debentures, pronissory notes, whether negotiable or net, shares in corporations and other instruments payable to order or to bearer, bank-notes included, may be seized like all other movable effects belonging to the debtor.— O. C. 565, am. Supra, arts. 599, § 12 ; infra, art.s. 666, 677, 695. Civil Code, art. 1573. 642. The seizure of shares in any corporation is made by serving such corporation with a copy of the writ of execution, together with a notice that all the shares held by the debtor in sucli corporation are placed under execution. A similar notice is served upon t lie debtor.— O. C. 5(J6, am. Infra, art. 667. 04.'J. If there in more than one place at which the corpora- tion mav be served, the service hereinahove mentioned, when made elsewhere than at the »!,ice where the transfer of shares and the pavnient of divi- dends may be validly made, has no ellect against subse([uent purchasers until a sufficient time has elapsed (o allow notice of the service to be transmitted from the place where it was made to the place where trans- fers of shares should lie entered, and the corporation is bound to effect such transmission. The seizure of such shares in- cludes all benefits and profits attached to them.- O. C. ml. ir.— Oppositions to the Seizure of Movable Property. «44. A seizure of movable property in execution may be contested by opposition, either by the debtor himself or by third parties.— O. C. 580. 645. Tne debtor may demand the nullity of a seizure of mov- able property in execution : 1. On the ground of irregulari- ties in the seizure, whenever they cause a prejudice ; 2. On the ground of any of the effects being exempt from seiz- ure ; 3 On the ground of the ex- tinction of the debt ; 4. On any other ground of a nature to affect the judgment sought to be executed. Whenever the grounds relied upon by the debtor relate only to a part of the property under 84 OPP08ITIONH TO SEIZURE. Rcizure, or to a pari of Dw amount clainied, the debtor can only demand the nullity of the seizure, for such part. — O, (' 581, am. Supra, arts. r>f>8, 5!K) ; infru, art. 722. Civil Code, art. li;*8. «44. When all the publica- tions and advertisements re- quired by law have been duly pnlilished and made at the time of a fornu'r opposition, the exe- cution cannot be stopped by opposition, unless for reasons suhsenuent to the proceedings by wliicli the sale was stopped in the first instance and upon a judj^e's order. In the districts of Quebec and Montreal, such order must be given by one of the judges ad- rainist ering Justice therein ; in the other districts, except those of llasp^, Rimouski, Heauce and (-'hicoutirni, such order can- not 1)6 made except by the judfjje who resides in the dis- Iric't in which the opposition Is to be tiled, except in the absence of tlie judge established by the certilicate of the prothonotary. Sueh order is made only after one day's notice to the opposite party.— O. C. 588a am.; R. S. 5925 • C. C. P, 664 ; R. S. 5938. Infra, art. 734. III.— Sale of Movable Property. OS.'j. If there is nothing to prevent the sale of the movable property seized, it takes place ;at the day, hour and place men- tioned in the notice . If the sale has beeu retarded |by any obstacle, subsequently removed, or if there are no bid- Iders, new notices and publica- tions must be given.— O. C. 1 589, am.; Supra, art. 8. Civil Code, arts. 15(U, 1591. «5«. The creditor first seiz- ing, who does not proceed with proper diligence, cannot prevent the sale by the next seizing cp^ditor.— O. C. 5/8, 4| 1, Svr}ra, art. 623 ; in/nt, 676 § (J s after the sale, the sheriff or bailiff" pays the moneys seized or levied, after deducting the duties tliere- on and taxed costs, to the seiz ing creditor, if no opposition for payment has been received; otherwise he must return them into court, to be adjudged lO such persons as are theretn en- titled. -O. C. 601, am.; R. S. 5962. Supra, art. 631. 671. Within six days after the sale, the sheriff or the liailiff must return the writ vviih all his proceedings thereunder into the office of the court. — Nnr. 672. When the moneys levied have been returned into court, the seizing creditor has a right to be paid in preference to »11 other chirographic creditors, saving the right of a prior seiz iiig party for his costs, the case missmMsmisi^^^ SEIZURE BY GARNISHMENT. SI of the insolvency of the debtor ftmi thecaseof priviliged claim><. 07;$. When the moneys are returned, and the insolvency of the debtor is ral]e^ed,the distrib- ution ot the moneys cannot take phici' until his creditors ^ener- ally have been called in. Tlu' creditors are called in upon the order of the judge, published twice in the French and English languages in the Quebec Ojficial Gazette, requir- intr them to file their claims within fifteen days from the date oj the first insertion. The same rule applies, under siinihir circumstances, to all cases where moneys other thati t!ie proceeds of immovables, or moneys of which an account has been rendered into court, are to be distributed.— O. C. 603, am.; R. S. 5927. Infra, art. 694. Civil Code, art lOlJe. 074. It is Sviliicient for the claims to state the names, oc- cupation and residence of the claimant, and the nature and amount of his claim. They must be accompanied witli an aftidavit that the sum claimed is lavrfuUy due, and with vouchers, if there are any. -0. C. 604, am. 075. The moneys are distri- iMited according to the order prescribed in the title Of Privi- hrjes and Hypothecs, and the title Of Merclu tit Shipping, in the ('ivil Code, in the statutes, and in the provisions contained in this Code.— O. C. 60.5, am. Supra, art. 646. Civil Code, arts. 743, 802. 966, 1899, 1993, et s.; 2;K^, et a. 676. The following order is observed as regards the co lec- tion of judicial costs : I . Costs of seizure and sale ; 2. The duty payable upon moneys leviea and paid into court ; 3. The fees of the oflHcer re- ceiving moneys levied or i)aid in; 4. The fees upon the report of distribution ; o. The fees of the advocate pro.secuting the distribution ; 6. Costs, subsequent to judg- ment, incurred in order to effect the seizure and sale, and ac- cording to the priority of date or of privilege when there are several seizing creditors ; the costs of a prior seizing party have a preference over those of a subsequent one ; nevertheless, if two or more writs of execu- tion issue upon judgments ren- dered on the same day against the same debtor, the costs there- on are paid concurrently ; 7. Costs of seals, or of invent- ories, when ordered by the court ; 8. Costa of suit of the seizing creditor.— O. C. 606, am.', R. S. 5928; Tansey vs. Bethune, 3 Dorion\% Q.B. R. 3*t3. Supra, art. 593, 660 Civil Qode, arts. 1994, 1995, 1996. § 3.— SEIZURE BY OARNISHMENT (177. Execution upon the movable property of a debtor, which is in the possession of a third party, may, in all cases, and must, whensuch third party does not consent to its immedi- ate seizure, be effected by means of seizure by garnishment. The same means must be adopted in executing upon debts due to the deV)tor, otherthan those mentioned in article 641. -O. C. 612. Supra, arts. 613, 614, .598, 599; infra, arts. 824, 940 ets. Civil Code, art. lOJil. >?i ^- '.:-'h-^ Vi 88 SEIZURE BY GARNI8HMEP.T. 678. Seizure by garnishment is made by means of a writ, is- suing from the court which rendered the judgment, and clothed with the formalities of writs of summons. It mentions the date and amount of the judgment, orders the garnishees not to dispossess themselves of the movable prop- erty belonging to the debtor which is in their possession, or 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 and at an hour fixed to declare under oath what propertv they have in their possession belonging to to the debtor, and what sums of money or other things they owe him or will have to pay him ; it also summons the debtor to ap- pear on the day fixed, and show cause why the seizure should not be declared valid . In seizing salaries and wages, the writ must also state the de- fendant's place of residence, and the nature and place of his oc- cupation.— A'e?^ in par f. O. C. 613, 614, ar/i. 670. The rules concerning the service of ordinary writs of summons apply to seizures by garnishment. Nevertheless, the garnishee cannot be condemned by de- fault, unless the writ of sum- mons or other order to appear has been served upon him per- sonally or at his domicile. If the defendant in the ori- ginal action has no domicile, residence or place of business in the district where judgment was rendered, the seizure by garnishment may be served upon him at the office of the court.— O. C. 615, awj. 680. The effect of seizure by garnishment ^ is to place the property and debts of which t lie garnujhee is debtor under Judi cial control, and to .sequestrate in his handsall corporeal thinfi;,s, in the same manner as if he had been specially appointed guard- ian. -O. C. 616. Civil Code, arts. 1147, JUHi, 1825. 681. The delays within which the debtor must plead to the proceedings by garnishment are the same as in summary mat- ters . If, b V. ^*, the declaration is made or completed after the day of return, the delavs for pleading are computed only from the day when the declara tion is completed . In other respects the contesta- tion is subject to the same rules and delays as summary matt er>:. -New. O. C. 615. Infra ^ 1154 et s. 682. The garnishee's declara- tion must be made on the day and at the hour mentioned iii the writ. It may, howev^ ;' made at any time before y urn day, provided that ( r». <■ :^\ notice of the day and hour y j;iven to the seizing crt ditor.- ef. C. 018, awi . 68**. The garnishee is bound to make his declaration under oath before the prothonotary, in the office of the cor*t which is- sued the writ of seizure by gar- nishment. Nevertheless, if the garnishee resides in a district other than thau in which the writ Is issued, he may, upon giving two days' notice to the seizing creditor, make his declaration on or he- fore the day fixed for the return of the writ before the judge or tlie prothonotary of his domi- cile, and such prothonotary is SEIZURE BY GARNISHMENT. 89 bound to transmit the same to the office of the court whence the writ issued.— O. C. 617, am.; R. S. 5929. 084. When a seizure by gar- nishment is made in the hands of a corporation, the declaration is made by an ittorney or by any other person authorized in the manner prescribed in Article 'Mi for answering interroga- tories upon articulated facts. Nevertlieless, in the case of a municipal corporation, the trea- surer, and, in defp.ult of the treasurer, the clork, or the secretary-trc3Suror, may make such declaration, —O. C. 617, am.; R.S. 5929. 085. The garnishee must de- clare in what he was indebted at the time of the service of the writ upon him, in what he has become indebted since that time, the cause of the indebted- ness, and any other seizure made in his hands. If the debt i3 not yet payable, i»e must declare when it will be. If his indebtedness is condi- tional or suspended by any hin- drance, he must also declare it. He must furnish a detailed statement of the movable prop- erty in his possession belonging to the debtor, and declare by what title he holds it. — O. C. 6IJ). 086. The seizing creditor has a right to be present when the garnishee makes his declara- tion, and to put any questions to him tending to prove any obli,u;atiOii of the garnishee to- wards the judgment debtor. If any difficulty arises during the examination, the parties are sent before the judge to have it decided.- O. C. 619, am. 087. The garnishee is en- titled to be taxed as a witness by the judge or by the prothono- tary who receives his declara- tion, and he may retain the amount of the taxation out of the sums in which he is in- debted. If he owes nothing, such taxa- tion may be enforced by execu- tion against the party suing out the writ, in the manner and after the delay prescribed for judgments in summary mat- ters.— 0. C. 620, am. Supra, 335; infra, 1160. 688. If a garnishee declares that he is not indebted and he cannot be proved to be so, the court, upon motion by the gar- nishee or by the debtor, orders him to be discharged from the seizure, and condenms the seiz- ing party to pay the costs.— O.C. &M; 53 Vic, c. 59, s. 3. 689. If the declaration of the garnishee is not contested, and he has not declared that any other seizure has been made in his hands, the judge or the pro- thonotary, upon an inscription for judgment by either party, orders him to pay to the seizing creditor on account of, or to the extent of his debt, the moneys seized, according to their suffi- ciency. Such judgment must be served, and the delay for execut- ing it is computed only from the day of such service.— O. C 621 ; 53 Vic, c59, s. 1. Supra, 547. 690. If the moneys or other things due by the garnishee are Eayable only at a future time, e may be condemned to pay them when such time arrives ; and if they are due under condi- tions which are not yet fulfilled, the court may, upon motion of the seizing creditor, declare the seizure binding until such con- ditions are fulfilled. Without prejudice to the case k; 1 m 90 SEIZURE BY GARNISHMENT. in which the insolvenc} of the common debtor is alleged, whenever the seizure of a con- ditional debt or of a debt pay- able with a term has been de- clared binding, the amount thereof is distributed in the manner provided in article H07, third paragraph, among such creditors as have tiled copies of their judgments in the record of the case, and have given notice to the parties interested— O.G. (523. In fret, art. 694. OOl. Any garnishee who fails to make a declaration is con- demned as a personal debtor of the seizing creditor, to the pay- ment of his claim . If the seizing creditor fails to proceed against such garnishee, the debtor may obtain the dis- missal of the seizure, with costs against him, or he may inscribe the case for judgment by de- fault against the garnishee, and execute it in the name of the seizing creditor. A garnishee may, however, obtain leave to make his de- claration at any time, even after judgment, upon payment of all costs incurred by his default. — O. C. 624 :R.S. 5930; 53Vic.,c. 59, s. 2. 692 . The judgment rendered upon a garnishee's declaration of indebtedness, is equivalent to a judicial assignment to the seizing creditor of the judgment debtor's title of debt, and ettects subrogation.— O. C. 625. Marsan v , Testier, 25 L . C . J., 214. Civil Code, arts. 1156, 1574, 1986, et. s. 2127. 698. The contestation of a garnishee's declaration must be served upon the garnishee and filed in the office of the court within six days, to be computed from the judgment rendered upon the contestation of tlie seizure by the debtor, or, in tlif absence of such contestation, from the expiry of the delays for producing it. In other respects, the con- testation of a garnishee's de- claration is subject to the same rules and delays as the originHJ action.— O. C 626, 627, am. Supra, art . 681 . 694. If there are several ot her seizures at the suit of ditfei- ent creditors in the hands of the same garnishee, each sei/ ure has a preference over Dw subsequent seizures, accoid ing to the date of its ser- vice upon the garnishee, except in cases of privilege, unless the insolvency ot the common del)t- or is alleged, in whicli case pro- ceedings must be taken ui)on the first seizure to call in the creditors in the manner provid ed in article 673; and the garni- shees in su(;h case are con- demned to pay into court the amounts they acknowledged lo owe.-O. C. 622. 695. If the garnishee de- clares that he has in his posses sion movable property, the judgment orders that iu shall l)e sold, and the garnishee must deliver it to the officer charged with selling it. i If the garnishee has in liis I hands negotiable paper or titles i of debt paj'able to bearer, he I may be condemned to deposit them in the office of the court, J or to deliver them to a person ; named by the court, according ; to circumstances. — O. C. 629. 696. The proceeds of the sale of such juovable property are afterwards paid or distributed in the same manner as otlier moneys levied under execution against movable propertv — O. C. 630. ^r/'-y T^^ms^^&wmUB. SEIZURE BY GARNISHMENT. 91 Supra, art. 070 et. s. (J97. In seizing salaries or wages mentioned in paragraplis 10 ami II of Article 51)9, the seizure by garnishment remains binding for the ])()rportion which is seizable, so long as the contract or engagement con- tinues, or so long as the debtor remains in the employ of the garnishee. The other creditors wlio have Judgmei)ts against the tiebtor may file a copy of such judg- meiits in the record of the cause, and must give notice thereof to the parties interested . The prothonotary, after colloc- ating the first seizing party for his costs, distributes rateably among the first seizing creditor, and the creditors who have ful- filled the requiretrents of the preceding paragraph, the sum to be divided, and determinrs in a summary manner upon the wiit or upon a sheet annexed thereto, the amount coming to each of the creditors. The ga^'nishee must, on mak- ing his declaration, deposit the sum which he owes ; and if the defendant continues in his ser- vice, the garnishee must every month either renew his declara- tion in the office of the court, and make the required deposit, or transmit to the prothonotary, by registered letter, a sworn declaration stating the amount in which he is indebted, accom- panied with the amount to be deposited. If he neglects so to do, he may be thereto compelled by a judge's order. If the defendant (piitshis ser- vice, tlie garnishee makes a de- claration to that effect. The garnishee may, upon making his original declaration, tix the day of the month, not later than the fifteenth, at which he will renew his declara- tion. The moneys seized and de posited remain in the hands of the prothonotary, who pays them over to the plaintill' and the other creditors on demand three days after tliey are de- posited, if there are no opposi- tions. In other respects, the seizure of salaries is subject to the same rules as seizures by garnish- ment in general.— O. C. 028, am.: R. S. oiKU. 0 3. A description of the im- movables seized, indicating the city, town, village, parish or township, as well as the street, range or concession in which tl»ey are situated, and the nuni- hvr of each immovable, if there exists an ofliicial plan of the locality, if not, it must mention the contcrminou. lands. If the property to be seized consists of incorporeal rights, such as rents, leases or other charges, mention must be made of the title under which they are due, with a description as above mentioned of the real property charged with the same. If the property to be seized consists of a line of railway and its appurtenances, and a plan of Huch railway has not been made in accordance with article 5008 of the Revised Statutes, it is only necessary to mention the name of such railway, with its terminal r»oints, in such a man- ner as to establish its identity, wiihout s^^ating the number of the immo\ ables through which it passes ; i. Mention that the minutes are made in duplicate, and that one duplicate thereof has been delivered to the judgment debtoi, in accordance with the noxt following article.— -O. C. (KiS, am.; 57 Vic, c. 48, s. 1. CivilCode, art. 2108. 707. The minutes are made in duplicate, and one duplicate is served upon the judgment debtor personally or at his domi- cile, residence or place of busi- ness If, however, the debtor has no domicile, residence or place of business in the district where the immovables are situate, in whole or in part, the duplicate minutes mav be left at the office of the court.— Nt'iv, in part. O. C. 038 a^n. 70M. No minutes are neces- sary ill the case of suits insti- tuted by building societies for bringing to sale immovables subject to their hypothec or right of pledge, or, in the case of immovables subject to hypo- thecs, Ijclonging to proprietors who are unknown or uncertain . — O. C. 041, am., mi. Infra, art. 1(«2. 70». The" judgment debtor, as well as the seizing creditor, may cause the ground rents and charges upon the immovables seized to be mentioned in the minutes ; but it is not necessary to insert mention of their being subject to rents established in redemption of seignorial rights, and any oppositions filed for that purpose cannot retard the sale, but must be returned by the sh riJf, and no costs can be obtained thereon by the oppos- ants. — O. C. 040, am. Infra, arts. 710, s, 4, 724, 725, 720. 710. The seizing creditor's domicile is elected at the sher- itl's office, without its being necessary to mention it in the minutes.— O. C. 039, a)/i. 711. When the sheriff has seized an immovable upon a debtor, h(» cannot seize it attain at the suit of another creditor, or of the same creditor for an- other debt, so long as the first seizure subsists ; but he is bound to note any subsequent writ of execution as an opposi- tion for payment upon the first writ, and in such case the first seizure cannot be discontinued or suspended, except in conse- quence of an opposition or with the consent as well of the seiz- ing creditor as of subsequent creditors whose writs of execu- '/«' 94 ADVERTISEMENTS AT 1) PUBLICATIONS. lion have been noted, or by an order of n jud^e.—O. C. 642, avr.. 712. In the event of the seiz- ing creditor discontinuing the seizure or receivinj? payment of his claim, thesheri/Iis bound to continue the proceedinpjs in tlie name of the seizing creditor and at the costof the judgment cred- itors whose writs have been noted, in order to satisfy the claims specified in the subse- quent writs of execution, provid- ed the seizure was made with all reo".i8ite formalities. — O.C. 64a, am.. 713. The immovables under seizure remain in the possession of the judgment debtor until the .adjudication ; but if the sale is stopped by an opposit ion, the seizing creditor nmy, according to circumstances and in the dis- cretion of the judge, obtain the appointment of a sequestrator to receive the revenues of the immovables.— O. C. 645, am.; R. S. 5932. Infra, art. 978, et. s. 714. Any person who cuts timber on the property seized, or in any manner deteriorates the same, is liable to imprison- ment for a term not exceeding six months, imposed by the court or by a judge out of term . — O. C.(M6,am. 715. From the moment that immoval)les have been seized, the debtor cannot, on pain of nullity, alienate them. The alienation avails, how- ever, if the seizure is declared null, or if, before the day tixed for the adjudication, the pur- chaser or the del)tor deposits with tiie sherirt'a sum sufficient to discharge the claims of the creditor in whose name the seizure was effected, as well as of any creditors whose writs of execution have been noted ; and the amount thus deposited is forthwith paid by the slieriff lo the creditors entitled to it.- O. C. 044. Civil rv?«, art. 2091. II.— Advertisements and Public - a lions 716. The sheriff must insert in the Quebec Official Gazef/r, in the French and English lan- guages, two separate times dur- ing one month, the first publitd- tion being r.t least thirty days before the sale, a notice sta*^':.^ : 1. The number of the cause and the nature of the writ ; 2. The names of the plaintiff in the suit, or if there are sev- eral plaintiffs, the designation of the first named in the writ, with an indication that there are others ; 3. The names of the defendant in the suit, or, if there are sev- eral defendants, a designation of the one first named in the writ, with an indication that there are others. If the plain tiff or defendant is acting as a tutor, it is sufficient to state that he is acting as tutor to t he minor children of the deceased person, without designating the minors by name ; 4. A designation of tlie im- movables or of the rents, as the case may be, as inserted in the minutes, with the charges therein mentioned, and also those which the seizing creditor has requested in writing to have inserted, together with men- tion upon which of the debtors the property is seized ; 5. The day, hour and place at which the immovables or rents will be put up for sale and ad judged. The advertisements of sher ADVERTISEMENTS AND PUBLICATIONS. 95 iffs sales must be printed con- secutively, and be preceded by a notice according to Schedule h in the Appendix to this Code. -0 . C. 648, am . , (WS) ; R . S . 593H . See Form Sched. L in Appoi- dix. 717. It is also the sheriff's duty :~ 1. When seizures are made in the cities of Quebec, Montreal, Three Rivers, Sherbrooke, St. Hyacintheand Sorel, and in the tow n of St. Johns, to publish, at the latest fifteen day»before the sale, a notice briefly detailing the particulars of the sale in a newspaper published in Frencii, and in one published in English, in the locality; and, if there is only one newspaper in the local- ity, or all are published in the .same language, to pul)li8h the notice in both languages in the same newspaper, and to post a copy of the notice in his office after the publication; or 2 When the seizure is made in a parish other than those con- tained in the above-mentioned loealities to publish and post such notice on the third Sunday before the day fixed for the sale, at the door of the church of the parish in which the pro- perty seized is situated, imme- diately after morning service, or, if there is no church, at the most public place in the local- ity. If there is no service, it is sutlicient to merely post the notice.— O. C. ()o06, in part, nm . : 650, ant .; R. S. 5934. 718. In the case of a line of railway passing through several municipalities, the notice re- quired oy the second paragraph of the preceding article must be given by the secretary- treasurer of each of such nuini- cipalities.— O. C. 650, an. ; 51 Vic., c. 48, 8.2. ! 7 19. As soon as the notice prescribed by article 716 has i)een given, the sheriff" must send a printed copy thereof in a registererl letter to the regis- trar of the registration division in which the immovable under seizure is situated, who must give notice thereof to the par- ties interested in the manner prescril)ed by the Civil Code. The omis.sion to give such notice does not invalidate the proceedings, but the officer in default is responsible for all damages which may result therefrom . When the seizure is annulled, and the seizing creditor is con- demned to pay the costs there- of, the expanses of the notice and of the cancellation of the notice of sei ure are borne by him. -O. C. ra, art. 650, et. s.; infra, arts. 1133. 1134. 73a. Every party who op- poses unsuccessfully the sale of an immovable or of a rent under seizuire is liable towards the seizing creditor and the debtor, not only for the costs incurred upon his opposition, but al.«o for all damages resulting there- from, including interest upon the amount due to the seizing creditor for the time during which the sale was stopped.— O. C. 656,a7n. 7 4^. 1 ' 98 BIDDING AND SALE. 733. When oppoHitlons are decided before the day fixed for the Bale, if the seizure is not set a^ide, the sheriir on the day of Hale proceeds to sell. I3ut if the oppositions are de- cided after the day fixed, the sherill', before proceeding to the sale, must insert in the Quebec Offivial Gazette, at the latest fifteen days before the sale, a notice in accordance with Schedule M in the Appendix, and must, moreover, cause it to be published in conformity with the rules contained in articles 717 and 718. In all such cases the sheriff must observe the conditions prescribed in the judgment.— O. C. 662, am.;m'.\ ; R. S. 5935. See Form, Sched. M, in Ap- pendix. Supra, art. 15, § 8 ; infra, art . 767. 734. Article 654 applies to seizure in execution against im- movables.— O. C 664, a7/i.;R. S. 59:^6. IV.— Bidding and Sale. 735. Bids may be given in writing at the sheriff's office at any time after the seizure, but at least four days previous to the date fixed for the sale.— O. C. 665, am. 736. Every such bid must be in writing, and l)e signed by the bidder, unless it is in the form of a notarial original, and must state : 1 . The name of the cause in which it is made ; 2. The names, quality and residence of the bidder ; 3. The immovable or rent bid upon ; 4 . The amount offered . —O . C. 668, am. 737. Every such bid must be accompanied with an afHdavit declaring thatr it is made in good faith and not to dela^- the proceedings, and, if the bidder IS a creditor, stating the naturu and amount of his claim. The sheriff may receive the afildavit.-O. C. Cm, am., iWu. 738. If a person bidding is not a creditor, the sheriff may, if he thinks fit, recjuire security from such bidder, or a de[)().sit of a sufficient sum to cover the costs incurred by the seizing creditor up to the time of such bid, and the costs of a resale upon false bidding, in case it should be necessary .—O. C. (567, am . 73P The sheriff must in dorse very such bid the date of its ^.»iiig, and return it into court with his other proceed- ings.— O. C. &ib,am. 740. The sheriff", must uir- nish the officer by whom the sale is to be made with a list of the bids duly filed. -O. C. 670, am. 741. All immovables must be bid upon and sold at the door of the parish church of the local- ity where they are situated, ex cept in the following cases : 1. Immovables situated in a earish not civilly erected must e offered for final l)idding and adjudication at the registry office for the registration divi- sion in which they are situated ; 2. Immovables situated with in the limits of a parish wholly or partially contained in the Island of Montreal, and those situated elsewhere in any city, town or chief-place where the sheriff's office is kept, or within the suburban limits {banlieue) thereof, must be bid upon and sold at the sheriff's office ; 3. Lines of railway must be sold at the office of the sheriff cliarged with the writ. BIDDING AND SALE. 99 The jud^e niny, upon the application of any interested party, allow the slierltl' to sell the iininovables at any other Hpecitlod place, if they can there he sdid to greater advantage.— AV/r /// part. O. C. (571 ; R. S. olW; 57 Vic, c. 4K s. W. 742. The .sherilf may, before proceeding to the sale, re»/'. 743. On the day and at the place appointed for the sale, tlie ollicer conducting the same, after reading the notice, the charges and the conditions of the sail , and the bids filed in the shcrifTs oflfice, offers the immovables for sale, taking as an upset price the only bin or the highest bid filed with the sheriff, if any have been so filed. -0. C. (573. Sitpra, art. 8. 744. Unless the judgment debtor consents, the sale must not proceed beyond the amount necessary to pay the debt, in principal, interest and costs. Supra, art. 66i. 74.">. The conditions of the sheritrs sale must express all those contained in articles 74(5, 747, 758, 7o9, 779 and 780, in the advert'sements, and in any judgment affecting the sale— 0. C. 675, am. 746. No bid can be received unless the bidder declares his names, quality or occupation and residence . Verbal bids may bo made by proxy. Minutes are taken of the bids received.- O. C. 674, am.; 677. 1 mm, art. 757. 747. Every bid imnlies an undertaking to buy tne prop- erty at tlie price of such bid, subject to the condition that no higner valid bid will be taken. -O. C. (»74, am. 74H. The followii;g persons cannot be bidders or purchasers at the sale : 1. The party upon whom the property is sold, if personally liable for the debt ; 2 The persons mentioned in article 1484 of the Civil Code : H. The sheriff or other oflicer entrusted with the sale ; 4. The false bidder who has not purged his default.— iV«u; in part. O. C. (57(5. Ciril Code, art. 1706. 749. The officer conducting the sale must renuire from every bidder, before he receives his bid, a deposit of a sum of money equal to the costs then due to the seizing creditor upon the judgment and seizure, whenever the judge, in the fol- lowing cases, has imposed such condition : 1. At the instance of the seizing creditor, in any case of resale upon false bidding or whenever the sale has been stopped by an opposition : 2. Whenever an affidavit is produced, stating that the de- ponent is credibly informed and bebeves that the debtor will, with a view to retard the sale, cause the immovable to be ad- judged to some insolvent or unknown person. The advertisements need not mention such condition.— O. C. 678, ()79, am.; R. S. 5938, 5939. Supra, art. 15, s. 8. 750. In any case wherein a resale upon false bidding has is Mi, 100 BIDDING AND SALE. taken place, the judge may, upon application by any inter- ested party, order that every bidder shall be required to de- posit a sum equal to one-hhird of the debt due to the seizing creditor, in principal, interest and costs, but not in any case exceeding four hundred dollars. — O. C. 680, am.; R. S. 5940 ; 58 Vic, c. 47, s. 1. 751. The officer proceeding to the sale may, with the con- sent in writing of the person who has caused the condition to be imposed, or of his attor- ney, receive any bid without requiring the prescribed de- posit. When the person who has caused the condition to be im- posed is not the seizing creditor, the written consent of the lat- ter or of his attorney is likewise required.— O. C. 681, a))i. 752. If any bidder fails to deposit forthwith the amount required, his bid is disregarded, and the proceedings are re- sumed upon the previous bid. — O. C. 682. 753. Immediately after adju- dication the officer proceeding to the sale is bound to refund to every bidder, except the purchaser, the amount de- posited by him. The deposit made by the purchaser is retained as part of the purchase money.— O. C. 683, am. 754. When several immov- ables cannot be sold separate- ly without disadvantage, the judge, upon the demand of any interested party, may order such immovables to be sold as a whole.— ivfU'. Infra, art. ^5. 755. The adjudication of an immovable cannot be made be- fore the expiration of a quarter of an hour from the time at v»hicb it was put up for sale, but after that delajr the officer, before adjudging it, must re- ceive all other bids oftered. - C. C. P. 684. 756. The property nmst be adjudged to the highest and last bidder. When there is only one out- bidder, he is declared tho pur- chaser . —A' 31^; in part. O. C. 085. Supra, art . 662 . 757. A person who has jjur- chased as agent for another is bound to furnish the shcrilF within three days v ith the names, quality and residence of his principal, and evidence of his power of attorney, or a rati- fication of his bid and purchase ; in default whereof he is held to have purchased in his own name. He is likewise held to have purchased it 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 purchaser- O.C.686. Supra, art, 746. Civil Code, art . 1715, et . s . 758. The purchaser is bound to pay the purchase-money or the balance tnereof within tliree days, after which delay he is bound to pay interest.— O. C. 637. 750. Nevertheless, the seiz- ing creditor or any other hypoth- ecary creditor, whose claiiit is mentioned in the certificate of hypothecs hereinafter mention- ed, or who has filed an opposi- tion in the hands of the sheritl', may, on becoming purchaser, retain the purchase-money to the extent of his claim until the judgment of distribution, pro- vided he furnish the sheriff with 'iihJii:ii ...A"' RESALE FOR FALSE BIDDING. 101 sureties for all damages whicli may result to anj' party inter- ested in the ev^nt of non-pay- ment of such sum as the judge may order such puiThaser to pay into the hands of the sheriff. — C. 688, am.; R. S. 5941 ; Fair- banks vs . Barlow, M . L . R. , 4 S. C. IW. Infra, art. 820. 7«0 Upon payment by the pnrcliaser of the purchase- money, or of so much thereof as he i.s not entitled to retain, the slioriir is bound to give such pur- chaser a deed of the sale made to him containing : — 1. A designation of the wi'it under which the sale took place ; 2. The number of the cause, and the names and the designa- tion of the parties ; 'y\. A description of the im- movable sold ; and, if such im- movable is a lino of railway and its appurtenances, and an offi- cial plan of such railway has not been made in accordance with article 5668 of the Revised Statutes, mention of the name of such railway, and of its ter- minal points, in such a manner as to establish its identity ; 4. A statement that all the fornuilities prescribed by law have been observed ; 0. The time and place at which the property was adjudged ; <) The conditions of the sale, including those mentioned in arUcles 779 and 7?'»0 ; 7. A statement of the price at whicij the property was ad- judged, and how it was paid ; 8. A conveyance of all the rights of the judgment debtor upon the immovable.— O. C. 689, am.; 57 Vic, c. 48, s. 4. Supra, art. 745; infra, art. 10.n:i 1318. < ivil Code, art. 2155. v.— Resale for False Bidding. 761 . Upon thesherift's return that a purchaser has not paid the whole or a balence ol the purchase-monv'y, or given secur- ity when he may lawfully do so, tHe seizing creditor may de- mand that the immovable of which the purchase-money thus remains due be resold for false bidding upon the purchaser thus in default ; and this is done 1 y a petition served upon the latter with the delays re- quired for ordinary summons. If the purchaser has no domi- cile, residence or place of busi- ness in the district where the adjudication took place, the ser- vice may be made at the office of the court from which the seizure issued. — O.C. 690, am. Supra, arts. 149,758; infra, 788, 829. 762. If the seizing creditor fails to proceed against the pur- chaser with proper diligence, any other creditor whose claim appears upon the record, or the debtor, may denumd the resale ; but the purchaser cannot be held liable for the costs of more than one of such proceedings ; and that of t^e seizing creditor or, in his default, the one first served has preference over the othera, provided it is followed up with proper diligence. — O.C. 691, am. 7 63. The proceedings upon an application for resale for false bidding are summary, and no written contestation can be had thereon without leave of the judge. O. C. 692, am.; R. S. .5942. 764. The purchaser may pre- vent the resale for false bidding by paying into the hands of the sheriff before such sale the amount of the purchase-money 102 RETURN OF WRITS OP EXECUTION. with the interest accrued there- on since the adjudication, and all costs incurred by reason of his default.— O.C. 094. 765. The false bidder is liable to the judp;ment creditors and to the debtor for all interest, costs and damages, resulting from his failure or delay to pay the purchase-money, and also for the difference between the amount of his bid and the price brought by the actual sale, if such price be less. If the price be greater, he has no right to the excess, which goes to the benefit of the judg- mentdebtorand his creditors. — O. C. 693, am. Supra, art. 748, s. 4. Civil Code, art. 1568. 766. If the price upon the re- sale is not sufficient to cover the amount of the first pvnchase with interest thereon and the costs incurred on the resale, the false bidder may he held, even by coercive imprisonment, to pay the diflerence, upon an ap plication to that effect made by any party to the suit, in the same manner and under the same conditions as that for a resale.— O. C, 695, Infra, art. 833, § 3. 767. The sheiifT proceeds upon the writ to the sale for false bidding by observing the conditions fixed by the judg- ment ordering the sale, and by conforming to the rules pre- scribed by article 733. — New. O. C, 696. Sujyra, arts. 749, 775. VI.— Return of Writs of Execution. 768. When the debtor has no immovables to seize, the sheriff must immediately return tlie writ with a certificate to that effect.— O. C, 697. Supra, art. 590, et. s. 769. Six days after the sale the sheriff must return : — 1. The writ under which he proceeded to the sale ; 2. A certificate of his proceed- ings : 3. The minutes of seizure ; 4. A copy of the advertise- ments, with a certificate of their publication and of the oral publications ; 5. The minutes of the l)id- ding ; 6. The conditions of sale ; 7. A statement of his fees and disbursements, tax-^d in con- formity with article 776 ; 8. The certificate of hypothecs charged upon the iinmoval)le seized, or, if such certificate has not yet been fu.nished, a de claration whether it will be furnished by him to the protho- notary ; 9. All oppositions and claims placed in his hands, or writ.s of execution which have been noted on the first writ.— O.C, 697, 698. Infra, arts. 1132, 1291. 770. On the day of sale, or within four days thereafter, any interested party may furnish the sheriff with a certificate signed by the registrar of the registration division in which the immovable is situate, men- tioning the privileges, hypoth- ecs and other charges aflect- ing such immovable, and regist ered up to the day of sale. If several certificates are offered to the sheriff, he must accept the first so offered : and if several are offered at the same time, the oneobtained first after the seizure. Should the interested parties fail to furnish the certificate RETURN OF WRITS OF EXECUTtON. 103 within the prescribed delay, the sheriff must, if he has aufticient moneys realized from the sale, procure it, paying its costs to the registrar, and transmit it to the prothonotary either with his return, or thereafter if he could not obtain it before such return. When it appears by the sher- iffs return that the certificate will not be furnished by him to the prothonotary, any inter- ested party may do so, subject to the rules governing certifi- cates received by the sheriff.— New. O. C, 699. Infra, arts. 777, 794. 771. The certificate must contain : — 1. All hypothecs registered against the property, as soon as hypothecs are thus registered, from the time when the plan and book of reference have been in force in the registration divi- sion ; 2. All hypothecs registered against the parties who, during the ten years previous to the sale, were owners of the im- movable ; 3. All anterior hypothecs of which the registration lias been renewed during that period. It must also contain the date of the act registered as creating or evidencing each hypothec, and the date of its registration, and of its renewal, if it has been renewed, the names, occupation and residence of the creditor, and the name of the notary or notaries before whom the act was passed, if it is notarial ; it must specify, when several immovables are seized, which of them is affected by each hypothec, mentioning, as re- gards each hypothec, every partial payment registered, and the amount in principal and preserved interest which ap- pears to be due. But the registrar must not include hypothecs which appear by his books to have been wholly discharged or extinguished ; and, in searching for hypothecs, the registrar must not go beyond the date of a sheriff's title, or of a sale bv forced licitation, or of any other sale having tlie effect of a sheriff's sale, or of a judg- ment of confirmation of title, with regard to the immovable in (question, and which has been registered ; except as to hypo- thecs which are not by such means discharged or extin- guished. If there is no hypothec regist- ered, or if all the hypothecs re- gistered appear to have been ischarged or extinguished, he must state so in his certificate. — O. C, art. 700. Infra, arts. 790, 808. Civil Code, art. 2177. 772. If the registrar cannot ascertain from the books and documents in his office what persons were owners of the im- movable during the ten years which preceded the sale, he must diligently inquire of the neighbouring proprietors and other persons well acquainted with the property ; and such persons are bound to give him, m writing and under oath, such information as they possess. The registrar, in his cei^ifl- cate, must mention the infor- mation thus obtained, and see that every fact upon which his certificate is thus based is at- tested by two witnesses, whose aftidavita, duly sworn to before him or any other competent officer, are annexed to such certificate.— O.C. 701. Civil Code, art. 1073. 773. If the immovable was, '-/» *■;«%■ kmw 104 EFFECT OF SHERIFF'S SALES. during the ten years wliich pre- ceded the sale, in another county or registration division, of which neitiier the books, en- tries and documents relating to such immovable, nor copies thereof, liave been transmitted to the registry office of the county or registration division in which the immovable was situated at the time of the sale, the registrar states the fact in his certificate ; and in every such case the sheriff must ob- tain, from the registrar of such other county or registration division, a certificate of all hypothecs registered while the immovable was within such county or registration division, and the latter registrar is like- wise subject to the provisions the two preceding articles.— O. C. 702, am. Infra, art. 107.3. 774. After the plan and book of reference have been deposited in any registry office, in accor- dance with the provisions of articles 2168, 2169, 2176a and 2llQb of the Civil Code, the Lieutenant - Governor - in-Coun- cil may change the form of the certificate of hypothecs ; and every order to that cff"ect is pub- lished in the Quebec Official Gazette, and takes effect from and after the day therein fixed, provided such day be not less than one month after the pub- lication of the order.— O. C. 703, am.;R. S. 5943. Infra, art. 1073. 775. In the case of resale for false bidding, no certificate of hypothecs need be produced if one has already been filed on the occasion of the first sale. — O. C. 704, am. 776. The sheriff* is allowed, out of the moneys which he has levied, all costs incurred by him to effect the sale, and- all fets belonging to his office, after they have been taxed by tlie judge or by the prothonotarv, together with the cost of tlie certificate of hypothecs ; and lie must hold the balance subject to the order of the court.— O. C. 705 am.; .55.56 Vic, c. 42, s. 2. Infra, art. 798. 777. Any person, except tlie debtor, who has procured the certificate of hypothecs, is col- located by privilege for the amount which he justifies by claim under oath to have paid for the certificate, without any fee being allowed the prothono- tary for such collocation. The claim may be conteslttl in the ordinary manner.— AV/r. Supra, art. 770 ; infra, art. 798. VII.— Eff'ect of Sheriff '.1 Sales 778. The adjudication is not perfect until the price is paid, and then it conveys ownership from its date. — O. C., 706. Infra, art. 1054. Civil Code, art. 1591. 770. The purchaser takes the immovable in the condition in which it is at the time of the adjudication, without regard to deteriorations or improvements subsequent to the seizure. — 0. C. 707. Supra, arts. 745, 760. Ciril (^ode, art. 1498. 780. The adjudication is al- ways without any warranty as to the contents of the immov- able; but it conveys all rights belonging to it which the judtc- ment debtor might have exer cised, and also all active servi- tudes attached to it even al- though they are not mentioned tioned in the minutes of seiz- ure.— O. C. 708. VACATING sheriff's SALES. 105 .S'apra, arts. 745, 760, s. 6 ; in- frt ; 55-56 Vic, c. 43 s. 2. Supra, art. 598,599. 802. The declaration and tlic statement are filed in the ofli( e of the Superior Court for the district where the debtor has his principal place of business, and, in default of such pla(e, where he is domiciled. — O. C. 764, «>«.; H. S. 595-^. Supra^ arts., 850, 851 ; infra, art. 928, 929. 8fi3. The abandonment de- prives the debtor of the enjoy- ment of such of his property as is liable to seizure, as well as of the possession of his books of account and titles of debt ; and gives his creditors the right to have such property sold and re- alized for the payment of their respective claims.— O. C. 778, am.; R, S. 5i)64. 864. Immediately after the filing of the declaration that the debtor consents tc abandon, whether it is accompanied l)y the statement or not, the pro- thonotary appoints a provi sional guardian whom he, as tar as possible, selects from the most interested creditors, who, mmm ABANDONMENT OP PROPERTY. 117 either personally or by a person vvliom he delegates for that purpose, takes immediate pos- session of all the property liable to seizure and of the books of account and titles of debt of the debtor. The guardian may summarily dispose of any perishable goods, and may take conservatory measures, under the direction of the judge, or, in the absence of the latter, of the prothono- tary.— O. C. 768, ata.; K. S. 5956 ; 55 .06 Vic, c. 43, 8. \i. Supra, art. (W4. Civil Code, art. 1825, et. s. 865. Within five days after the filing of the statement the provisional guardian must give notice of the abandonment : 1. By inserting an advertise- ment to that ettect in the Quebec Official GazMte • 2. By a registerea letter, post- ed to the address of each of the creditors, setting forth the date of the filing of the statement, id the amount and nature of each claim In defaui of such notices be- ing '.riven by the provisional ruardian within the prescribed 'lay, the debtor or any creditor . I y give them.— O. C. 765, am.; K S. .5955. Hfle. For the purpose of ad- vising as to the appointment of a curator and inspectors, a meet- \n\x, of the creditors is called be- fore the judge, by a registered notice posted to the address of each of them, and also inserted in a newspaper published in the district, or in a neighboring dis- trict if there be none in the dis- trict . Such meeting must be held be- tween the fifth and the fifteenth day after the publication of the notice calling it.— O. C. 768 am.; li. S. 5956 ; 55-56 Vic, c 43, s. 4. See Form, Sched. P, Appen- dix . Hill. The judge must appoint, as curator and inspectors, the persons chosen by the majority in number and in value of the creditors present or represented at the meeting who have filed sworn claims. If the majority in number does not agree with the majority in value, the judge decides be- tween them,as bethinks proper. — O. C. 768; H. S. 5956; 55-56 Vic, c 43, s. 4. Supra, art. 15, s. 8 ; infra, arts. 890, 1338. Civil Code, arts. 347, 347rt. 868. The judge may also ap- point a guardian and a curator in any of the following cases': 1. When a capias cannot be '.executed by reason of the ab- sence of the defendant, or be- cause he cannot be found ; 2. When the debtor is a trader who has ceased his payments, and has left the Province, or no longer resides therein ; 3. When the demand has been served upon a trader of the age of seventy years or upwards, or upon a woman who is a public trader, and has not been complied with. — O. 0. 780, am.', 763a ; R. S. 5965 ; 55-56 Vic, c. 43, s. 1. Supra, art. 15, s. 8; infra, arts. 890, 895, 896, 931. 869. Such appointment is made on the petition of the l)laintifi" or of a creditor whose claim is unsecured for a sum of two hundred dollars and up- \vards. The powers and obligjitions of the provisional guardian and of the curator so appointed are, in so far as may be, the same as in cases of abandonment. The judge may prescribe the obaervance of such formalities ■ iT 118 ABANDONMENT OF PROPERTY. and the giving of such public notices as he deems necessary. New in part. O. C. 780 ; R. S. 5965. 870. The curator takes pos- session of all the property mentioned in the statement, as well as of the debtor's books of account and titles of debt, and administers the property until it is sold or realized in the manner hereinafter mentioned. He has, in like manner, a right to receive, collect and re- cover any other property be- longing to the debtor, which the latter has failed to include in his statement, except such as is by law exempt from seizure. — O. C. 771, 772, am.\ R. S. 5960 ; 5ii Vic, c. 51, s. 1. 871. After the abandonment, any proceeding by way cf seiz- ure, attachment for rent or seizure in execution against the movable property of the debtor is suspended ; and the guardian or the curator has a right to take possession of the goods so seized, upon serving, by a bailiff, a notice of his ap- pointment upon the seizing creditor, or upon his attorney, or upon the bailiff entrusted with the writ. The costs upon such seizure, incurred after the notice, or, in the absence of such notice, in- curred by a creditor after he had knowledge of the abandon- ment, either personally, or by his attorney, or by the bailiff, and in all cases, the cost of seizure incurred eight days after the notice given by the curator, cannot be collocated upon the property of the debtor, the proceeds of which are dis- tributed in consequence of the abandonment. The judge iiiJiy, however, per- mit the continuance of proceed- ings already commenced, upon such terms as are deemed pro p&T.—Neic in pai^t. O. C. 769 : R. S. 5957; Thompson vs. Ken- nedy, M. L. R., 4 S. C. 44H. Infra, art. 890. 872. The curator must make his appointment known by an advertisement in the Quebec OJificial Gazette, and by a regis- tered notice posted to the ad- dress of each creditor. In such notice the curator calls upon the creditors to tile their sworn claims with him within a delay of thirty days. - O. C. 770, am.; R. S. 5958. See Form, Schcd. Q. App< n dix. 873. if subsequently to tlie abandonment, and before the curator has rendered his final account, the debtor acquires any additional property, he may be required, by a new demand, to abandon it also. Immediately upon the aban- donment being made, the cura tor takes possession of such propert3% and proceeds to the sale and distribution of the moneys as in ordinary cases ; btit is bound to reimburse tlie expenses incurred by any credi- tor through whose diligence the property is rendered available. Such demand may be made by the curator, with the au thorization of the inspectors, or by any creditor competent to demand an abandonment. — New. 874. The curator appointed may be required to give sec ur- ity, the amount whereof is fixed by the judge. The security may be given in favor of the creditors of the debtor generally without men- tioning their names. The judge may, whenever it becomes necessary, appoint a ttmmmiimiUSimm sr- ABANDONMENT OF PROPERTY. 119 curator ad hoc to enforce any such bond a^svinst the parties liable.— iV^ew in part. O. C. llOa ; R. S. 5959. 875. The curator is subject to the summary jurisdiction of the judge.-O. C. 110a; R. S. 5959. 876. Any propel ty not be- longing to the debtor, which is in the curator's possession by virtue of the abandonment, may be recovered by the person thereto entitled, upon a petition to the judge.— iV«M?. 877. The curator may, with the leave of the judge, upon the advice of the creditors or in- spectors, exercise all the rights of action of the debtor and all the actions possessed by the mass of the creditors.— O. C. 772 am.; R. S. 59m. Intra, art. 890. 878. The curator may sell the movable and immovable proper- ty of the debtor in the manner imlicated by the judge, upon the advice of the parties interested or of the inspectors.— O. C. 772, am.; R. S. 5960. Infra, art. 890. Civil Code, art. 1565. 879. Upon the application of the curator, authorized by the inspectors, or upon the ap- plication of an hypothecary creditor, after notice to the debtor, the judge may authorize the curator to sell the immov- ables of the latter in such manner and after sucn notices, as the judge may please to or- der ; he may also authorize or command the curator *to issue his warrant to the sheriff com- petent to act, requiring the lat- ter to seize and sell such im- movables. The sheriff executes such warrant without making any service upon the debtor, but by otherwise observing the same rules as in the case of an execu- tion against immovables ; and all subsequent proceedings are had in the Superior Court. The moneys realized from the sale made' by the sheriff remains in his hands to be paid by him to the privileged and hypothecary creditors in accordrnce with the report of distribution which shall be made by the prothono- taryof the Superior Court in the usual way, and the surplus shall be remitted to the curator upon ati order of the judge for its dis- tribution among the chirogra- phorv creditors by means of a dividend slieet prepared in ac- cordance with the following article. 61 Vic. c. 47, s. 7. The sheriff executes such war- rant without making any ser- vice upon the debtor, but by otherwise observing the same rules as in the case of an execu- tion against immovables ; and all proceedings subsequent to the issue of the warrant up to the distribution of the proceeds of the sale are had in the Su- perior Court. The moneys remain in the hands of the sheriff, who pays them to the parties thereto en- titled under dividend-sheets prepared in accordance with the next following nrticle.— New in part. O. C. 772, am.; R. S. 5{K)0;52 Vic, c. 51,8. 1. 880. The moneys realized by the curator from the property of the debtor must be distribut- ed by the curator among the creditors by means of dividend- sheets prepared after the ex- piration of the delays to file creditors' claims. Notice of their preparations must be given by an advertise- 120 ABANDONMENT OF PROPERTY. ment in the Quebec Official Gazette. A copy of the dividend sheets, with a notice of the date at which they are payable, must also be posted by registered let- ter to the address of each of the creditors who have filed th(,'ir claims or whose names appear in the statement. The dividend sheets are pay- able fifteen days after the ob- servance of these formalities. — O.C.772a, am.; R S. 5i)«l ; 53 Vic, c. 60, s. 1 ; 54 Vic, c 41, s. 2. Supra, art. 872. 881. The claims or dividends may be contested by any party interested, or by the curator at the expense of the estate if he is so instructed by the curators. The contestation for such pur- pose is filed with the curator, who is bound to transmit it im- mediately to the prothonotary of the Superior Court for the district in which the proceed- ings upon the abandonment are then deposited, or for such other district as the parties interested in the contestation may agree upon ; and the contestation is proceeded with and decided summarily by the judge. The judge may allow the pay- ment, in whole or in part, of any claims or dividends which are not contested, upon being satisfied that a sufficient sum is retained to meet the contesta- tion. — New in part. O. C. 772. om.; R.S. 5901 ; 53 Vic, c. 60. s. 1 ; 54 Vice 41, s. 2. Supra, art. 15, s. 8. 882. Any creditor, at any time after the filing of the state- ment, or the curator with the authorization of the inspectors, may summon the debtor to ap- pear before the judge or the prothonotary, and examine him on oath concerning the state ment and the condition of his a tla i rs . — Neiv . O . C . 775 . 883. Upon application In any creditor at any time aftt'V the filing of the statement, or by the curator with the author- ization of the inspectors, the judge may order the production of any book or document rehu ingto the matters metjtioned in the preceding article, and the exaini nation of the consort of the debtor and of any other per- sons whom he deems capable of furnishing information in re- gard to such matters.— AV(r. O.C. 7726 ; 55-56 Vic, c. 43, s. 5 Injra. art. 890. 88-4. The rules relating to the summoning and exaniina tion of witnesses and the taking of evidence govern cases pro- vided for in the two preceding articles, in so far as they apply. Any person summoned wlio refuses to appear or to answer or to produce any book or document, may be condemned by the judge to imprison- ment for a term not exceed- ing one year. If any dispute arises during the exainina tion, the parties are sent before the judge to have it decided. - New. O. C. 772^;, 716 ; 55-56 \'ic., c 43, s. 5. Supra, art. 834. 883. The curator, authorized by the inspectors, or any cred- itor, may contesc the statement, by reason : 1. Of the fraudulent omission to mention property of the viilue of one hundred dollars ; 2. Of fraudulent misrepresen- tations therein with respect to the number of the creditors, or the nature or amount of their claims ; 3. Of secretion by the debtor, within the year immediutelj' ABANDONMENT OF PROPERTY. 121 ineceding the filing of the state- ment, or since, of any portion of his property, with intent to de- fraud his creditors.— O.C. 773, am.; R.S. 5962; 5o-56Vic,c, 43, s.6. Siq^ra, art. 15, s. 8, 886. The contestation of the statement must be made within four months from the day on which the advertisement of the curator's appointment appears in the Quebec OJficial Gazette. -New. O. C. 773 ; R. S. 5962. 887. The contesting party is also bound, within the same de- lay, to prove his allegations by all legal means. The judge may, however, pro- long the delay for making such proof, but not beyond two months. The judge may, when sat isfied that the delay is due to the fault of the debtor, allow, from time to time, a further delay of two months. — New in part. O. C. 774, am. 888. If the contesting party establishes any one of the offences mentioned in article 885, the judge may condemn the debtor to be imprisoned for a term not exceeding one year. The rules contained in articles 838,839,840,841 and 812 apply in so far as may be, to proceed- ings in execution of the con- demnation. — Neiv 171 part. O.C. 77() anu; R. S. 5963. 889. If the statement is not contested within the required delay, or if the contestation is not proved within such delay, the judge may order the dis- charge of the debtor, and the latter is exempt from arrest or imprisonment by reason of any cause of action which existed before the making of such state- ment, without prejudice tocases where he has been already ar- rested under a capias, or is im- prisoned for any debt of the des- cription mentioned in articles 8;i3 and 834 ; and in case of such imprisonment or arrest, he may obtain his liberation from the judge, upon petition and sutH- cient proof. — O. C. 777, am. ; C. C. 2275. 89Q. Judgtuents and orders rendered in virtue of articles 8(56, 867, 868, 871, 874, 877,878, 879, 882 and 883 are not subject to review or to appeal. — Neiv. 891. The abandonment of his property discharges the debtor from his debts to the extent only of the amount which his creditors have been paid out of the proceeds of the sale of such property.— O. C 779. 892. The curator must keep a register containing the names and description of the debtor, the date of the abandonment, the amount of the proceeds of the property, the amount of each claim, the amount paid to each creditor, the numoer of dividends and the amount of his fees and disbursements. The register may be consulted by any creditor, during reason- able hours, at the curator's place of business. Within two months after the date when the last dividend- sheet is payable, the curator must deposit the register in the office of the court to which it appertains. The cnrator must also, within the same delay, unless the judge otherwise orders, under penalty of all costs and damages, pre- pare a certificate if all his pro- ceedings, and file it in the office of the Superior Court, with all papers and documents relating to his management ; and the complete record thus returned forms part of the records of such court.— New. 122 ISSUE OP THE CAPIAS. FOURTH PART PROVISIONAL REMEDIES. CHAPTER XXXII GENERAL PROVISION. 893. In the cases provided for by the following Chapters, a plaintiff may have the person or the property of his debtor, or the object in dispute, placed in judicial custody, or may other- wise obtain provisional relief, subject to a right of action by the latter to recover damages upon establishing a want of reasonable and probable cau^e in resorting to any such extra- ordinary remedies.— O. C. 796, am. Supra, art. 15, s. 8. CHAPTER XXXIII. CAPIAS AD RESPONDENDUM. SECTION I Issue of the Capias. I. Issue of the Capias 804. II. Execution of the Capias 906. III. Release Upon Bail 910. IV. Contestation of the Capias 919. V. Effect of the Capias 925. 894. The Superior Court only has jnrisdiction in matters of capias. — O. C. 808. 895. The plaintiff may obtain a writ of summons and arrest against the defendant when- ever a personal debt amount hig to fifty dollars or upwards is c'ue him, and such debt has been created or is made payable within the limits of the Pro vinces of Quebec and Ontario, in any case wherein the defend- ant : — 1. Is immediately about to leave the Provinces of Quebec, and Ontario, with intent to de- fraud his creditors in general or the plaintiff in particular, and the plaintiff will thereby be deprived of his recourse against the defendant ; or 2. Is secreting or making away with, has secreted or made away with or is immediately about to secrete or make away with, his property, with intent to defraud his creditors in general or the plaintitl" in particular, and the plaintiff will thereby be deprivea of his re course against the defendant; or 3. Is a trader who has ceased his payments, and has refused to make a judicial abandonment of his property for the benetit of his creditors, although duly re- quired to do so.— O. C. 797, 798, 799, 806, am. ; R. S. 5966. Supra, art. 859. 896. Except in the cases mentioned in articles 833 and 834, a writ of capias cannot is- sue : 1. Against priests or minis- ters of any religious denomina- tion whatever ; 2. Against septuagenarians ; EXECUTION OF THE CAPIAS. 123 3. Against women.— O. C. 805, am. Su})ra, art. 83.5 ; in^Va, art. 910, S.4. 8l>7. The writ of capias may be Joined with the writ of sum- mons, or may be issued after- wards as an incident in the cause. In the latter case it must be accompanied witli a summons to hear it adjudged that the writ be joined with the p-iiuipal demand and be de- dared valid. The writ may ;^lso issue after judt^ment has oeen obtained for the recovery of the debt.— O. C m,(im. HOH. The writ of capias is obtained upon an {'.ifidavit of the plaintiff, his bookkeeper, clerk or legal attorney, setting forth, besides the required per- sonal indebtedness, the exis- tence of any one or more of the grounds for which capias lies. The affidavit must be drawn up in accordance with the forms contained in Schedule R in the Appendix to this Code, or any others to the same effect. — Neiv in part. O. C. 798, 799 ; R. S. 59(36. See Form, Sched. R, Appen- dix. Supra, art. 119. 899. If the demand is found- ed upon a claim forunliquidated damages, the affidavit must also state the nature and amount of the damages souglit, and the facts whicli gave rise to them, and must be submitted to the judge, without whose order the writ cannot issue. In granting leave to issue the writ, the judge must fix the amount of the bail, upon giving which the defendant may be released.— O. C. 801, am. Infra, arts. 904, 910, 913. 000. The affidavit may be made by one person only, or by several persons, each of whom swears to a portion of the ne- cessary facts.— O. C. 807. 001. Any affidavit, founded upon information or belief, must state the grounds of such belief, and the sources of such information. — New. See Form, Sched. S, Ap]jen- (tix. 002. The writ is issued by the prothonotary, or by tlie clerk of the Circuit Court, who, in such case, acts as an officer of tlie Superior Court, and draws up the writ as though it were issued by the prothono- tary.— iV«t•' el fected by simply endorsin;:; his name on the bail-bond.— (J. C. 913. The defendant may jl) tain his release from coniine ment upon giving good and sufficient sureties, to the satis- faction of the judge or piotho- notary, that he will make an abandonment of his property for the benefit of his creditors within thirty days after tlie rendering of judgment main taining the capias, and also that he will surrender himself into the custody of the sheriff, wlun required to do so by an onicr it the judge, within thirty days after service of such order upon him or his sureties, and that, in default of such abandonment and surrender, or of either, ^uch sureties will pay to the |)laintilT the amount of the judg' nut in principal, interest and ei»ts, or, in the case of article S',':*, the amount of the judgment (othc extent of the sum fixed I'v ihe judge.— O. C. 776, 825, aw. See Form, Sched. V, Appen dix. Supra, art. 559 et. s.; infra, ^11 1 mjMkj- CONTESTATION OF THE CAPIAS. 125 nay ob- M)nline- )(l iind e satis- protho- ake an roi)ertY •editors er the main- ilso tha'. into t, whon nit'i' I't y (lays [er upon that, in pnment ler, >uch il.iintiff lit in lu>ts, or, i\)[K the [ I o I he l.v the art. 920. Civil Code, arts. 1938 et. s., ltM?2et. 8. 01 I. The relejise, may ha ob- taiin'l in tliciuaniicr proscribed by tlu' preeediiif,? iirticio at any tiuu! l)efore nid^irnent O.C. 825. Ol.'S. Such bail is ollVred after one (lay's notice, containinji; a description of the sui'eties pro- posed, served upon the plaint ill' or liis attor»iey. O. C. 82(>, a//i. 010. The sureties olVered iinist if the plaintiff so requires, justify their sufticiency on oath, but m-vA )iot justify on real es- tate. -O.C. 827, French Vci'sion. SuDrn, art. 516. Civil Code, ; art. 1939. ' 917. The sureties or any of them, nmy themselves arrest i the defendant and deliver him to the sheriff ; or may obtain ; without notice, from the pro- thonotary, an order command- in}? the sheriff or a bailiff to make t he arrest . The execution of such order is go\«'rned i)y the rules con- tained in articles 906, 997 and 1)08.-0. C. 831, am. 918. When the sureties have themselves arrested the defend- ant, the sherift" is not bound to receive him without a w ritten requisition, signed by the sure- ties or by one of them, or by their authorized attorney. The requisition nmst contain tlie 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 . It is the duty of the sheriff to give the sureties a certificate of such >urrender O.C. 832, —am SECTION IV Contestation of the Capias. 910. Upon petition present- t'ti to a judge, the defendant may have the capla.s qua.shed in the '"olio wing ca-»'S : 1. U'henever he shows that the allegations of the aflldavit upon which tlic capias is found- ed aic insufllcient ; 2. Whenever lie shows that he is exempt from arrest ; 3. Whenever the plaintiff fails to establish the truth of the essential allegations of the alH(la\ it.~0. C. 819, «7n. Svprti, arts. 15, § 8 ; 895, 89(5. 030. In order to decide upon this incidental proceeding, the judge may order the immediate return of the writ of capias and the proceedings had upon it ; but the delays for pleading to the action are computed only from the date on which the re- turn would otherwise have been made. -O. C. 820, awj. 021. If the contestation is merely as to the sufficiency of the allegations of the affidavit, the .judge may dispose of it after hearing the parties.— O. C. 821. 1>22. If the contestation is founded upon the falsity of the allegations, or upon the defend- ant's being exempt from arrest, issue must be joined upon the petition of the defendant inde- pendently of the contestation upon the principal demand. The contestation is subject to the same rules and delays as summary matters. -O. C. 821, (on. Infra, art. 1156, et. s. }}'2ii A defendant whose ap- plication to be released from confinement is rejected may appeal to the Court of Review or to the Court of Queen's Bench. -O. C. 822, am. Supra, art. 52. 024 . If the court or the j udge ((uashes the capias, the plaintiff may obtain a suspension of the 126 EFFECT OF THE CAPIAS. judgment by declaring imme- diately that he intend" to take the decision to review or t) ap- peal. In the former case, he must serve the inscription and de- posit the amount required by article 1196 before the expiry of the next juridical day after the rendering of judgment, and, in the latter case, must serve the Inscription within the same de- lay, and give security in tie ordinary wtiy. If the plaintiff is entitled to appeal from the judgment in review, he must immediately declare his intention of doing so, file the inscription in appeal before the expiry of the next juridical day after the render- mg of judgment in review, and give security in the ordinary way. Ir the plaintiff fails to comply with these formalities, the de- fendant is released — .O. C. 823, am.; 54 Vic c. 41, s. 3. Infra, art. 1209. SECTION V. Effect of the Capias. 925. Upon a petition by the plaintiff, the debtor against whom a capias has been main- tained, and who has been re- leased upon bail, may be con- demned by the court to impris- onment for an indeterminate time. The order decreeing the im- prisonment may be rendered as soon as judgment has been pro- nounced maintaining the capias, but it is executory only thirty davs after its service. f u other respects, it is applied for, contested and executed in ihe same manner as coercive imprisonment.— iVcw;, O. C. 776. Supra, art. 837 et s. 020. Saving the responHJhil ity incurred by the Hurtiicji whenever the defendant han not n)ade an abandonment of his property within thirty days after judgment maintaining the capias, the debtor may inak' such abandonment at any tiiiit —New hi part, O.C. 760; H. S 5963. Supra, arts. 853, 913. 027. Abandonments conse quent upon capias are governed by the rules contained in arti cles 854 to 892, inclusive, except in so far as special provisions are contained in this section - Ncu\ 028. The abandonment is made by filing the declaiiitioii and the statement in the office of the Superior Court for the district in which the capias issued.— O. C. 764, am. ; K. S. 5954 Supra, arts. 850, 862. 020. After the appointment of the curator, the record of the proceedings upon the abandon ment is transmitted to the pro thonotar^ of the Superior Court for the district where the dchtor has his place of business, or, in default of such place, where he is domiciled. Nevertheless, if the debtor has no place of business or domicile in the Province, the record re mains in the office of the court where the abandonment is \wSi6.Q,—New in 2)art, O. (■. 768, am. ; R. S. 5956. Supra, art. 851 . 030. The statement mar. apart from the cases mentioned in article 885, be contested by reason of any secretion which preceded the capias and was the cause of it being maintained, unless the things secreted are Xf' ATTACHMENT BEFORE JUDGMENT. \21 included in the abandonment ; and if it is proved that such things are not tlierein included, the debtor is subject to the penalty imposed by article m.—New in part, O. C. 773, a III . Supra, art. 852. CHAPTER XXXIV. Attachment Before Jud^^- luent. SECTION I. Simple Attachment. I, Simple Attachment 031. II. Attachment by Garnish- ment 040. 9.'J1. A creditor may, before obtaining judgment, procure a writ to attach the goods and effects of his debtor, in any case wherein the defendant is per- sonally indebted to the plaintiff in a sum exceeding five dollars : 1. In the case of the der'nier equipeur : 2. When the defendant :— a. Is immediately about to leave the Province with intent to defraud his creditors in gen- eral, or the plaintiff in particu- lar, and the plaintiff will there- by 1)6 deprived of bis recourse against the defendant ; or b. Is secreting or making away with, has secreted or made away with, or is immediately about to secrete or make away with, his property, with intent to defraud his creditors in gen- eralor the plaintiff in particular, and the plaintiff will thereby be deprived of his recourse against the defendant ; or 0. Is a trader who has ceased his payments, and has refused to make an abandonment of his pronerty for the benefit of his creaitors, although duly requir- ed to do so.— O. C. 834, am. ; R. S. 5970. Sujira, arts. 15, s. 8, 612, 895. Infra, art. 940. 932. The writ of simple at- tachment is addressed and ex- ecuted in the manner prescribed by article (KH. It commands the sheriff or bailiff to attach the movable property of the defendant, and to summon the latter to appear and answer the demand and to hear the attachment declared valid.-O. C. Ki(), 840, am. ; U. S. 5971. 033. The writ is obtained upon an affidavit of the plaintiff, his book-keeper, clerk, or legal attorney, setting forth, in the case of the dernier equipeur, the existence of the reauired In- debtedness, and in other cases, besides the required indebted- ness, the existence of any one or more of the other grounas for which attachment before judg- ment WGn.—Neiv, O. C. 834, R. S. 5970. Supra, arts. 112, 119. 034. The writ is issued bv the prothonotary or by the clerk of the Circuit Court, as the case may be, and is clothed with the formalities of ordinary sum- mons. It may also be issued for the Superior Court, by the clerk of the Circuit Court, who in such case acts as an officer of the Superior Court, and draws up the writ as though it were issued by the prothonotary.— O. C. 838, 839, am., 840, in part. 935. The seizure of the prop- erty of the defendant ana the nomination and powei"S of guardians and depositaries are im wmmm 128 ATTACHMENT BY GARNISHMENT. subject to the rules governing the execution of judgments. The seizing officer may make the seizure in another district if the debtor has conveyed his property there or has withdrawn there himself.-O. C. 841, 851, am. OiJfl. A copy of the writ of at- tachment mnst be served upon the defendant ar soon as the seizure ia completed.— O. C. 850. 937. If the defendant is ab- sent from the Province, or con- ce h: himself so as to prevent the s ^rvice of the writ of attach- ment or of the mi?iutes of seiz- ure, the judge mn.y, upon a re- turn to that effect, prescribe the ! method of service.— O. C. 852, ; am. Supra, arts. 145, 146. OSH. A defendant whose ef- fects have been seized may have them restored to him by the seizing oflicer within three days from the service of the minutes of seizure : — 1. By depositing with the seizing officer the amount in- dorseci on the writ, together with interest and costs, or such amount only, if it is for un- liquidated damages ; or 2. By giving the seizing officer, who is bound to accept them, good and sufficient sureties, who justify under oath to the amount innorsed upon the w^rit, with interest and costs, or to such amount only if it is for un- liquidated damages, thfl t he will satisfy the judgment that may be rendered. In default of his doing so within the specified delay, the effects remain under seizure to satisfy the judgment, unless the judge orders otherwise.— O. C. 85;i, am. 03(>. The issue of the writ of attachment, its form, execution and contestation are governed . in so far as may be, by the pro visions of articles 81)9, 900, 1)01. 903, 004, 909, and 919 to 924, in- clusively.— .Vm'. O. C. 835, 887, 854. Supra, arts. 52, 640. SECTION II Attachment by Garnishment 940. In all the cases where a writ of simple attachment niuy be granted, a creditor may alsii attach any movable property ho longing to his debtor which may be in the hands of third persons, and also whatever sums tlicy owe him. — O. C. 8.55, am. Supra, arts. 15, s. 8, 677, 9:U ; infi^a, art. 1152. 941. This attachment is ef fected by means of a writ ad dressed and executed in the manner provided by article (i()l, commanding the garnishees not to dispossess themselves of llie movable property belonging; to the debtor which is in their |)0> session, and of such moneys o) other things as they owe hitn or wnll have to pay him, until tlie court has pronounced unon th*' matter, and ordering them to appear on a day and at an hour fixed to declare under oath what property they have in their pos- session belonging to the defend ant, and what sums of money or other things they owe him ox will have to pay iiim, and snni moning the defendant to appear on the day fixed and answer the demand of the plaintiff and to hear the attachment de, ()H2, ()«:{, ().S5, (;8(). (vS7, (iSS, OlM), (591, «}9:i, 094, 095, ()'iX), 097 and 098 i!i' also apj^licable to atlach- iiu'iit l)y g;arnihhnient. — O. C Mill, S()2, 8();-{, m\, avi. 9 4-t . If thii declaration of the uMriiisliee is not contested, the judijce, in rendering judp^nient \)\)'n\ tlie piincipal demand, ad- judicates also upon theattach- iiiciit and the declaration of the ^'arnishee — O. C . 8(»1 . J>t5. Tiie contestation of the atruchment by the defendant, aiui any appeal from the judj^;- ment upon the petition to (juash, arc )j:overned by the rules con- tained in articles 019 to 921, in- clui^ively. — O. C. 865, am. CHAPTER XXXV Attachiiieiit in fiev«M»(lica- tioii UMi. Wlioever has a right to nvi'iulicate movable properly may obtain a writ for the pur- po.se of having it attached, upon production of an allichivit set- ting forth his right and descril)- inj' the property so as to identify it This right of attachment in revendication may be exercised by the owner, the pledgee, the depositary, the usufructuary, till' institute in substitutions, and the substitute.- O. C 8t)Ci. Supra, arts. 15, s. 8 ; 112, 119, 870: infra, 1922, IKW, 1152. Civil Code, arts. 459, 947. 950, 154;i, 1998, hm, 22()8. 1)47. The writ of attachment in revendication ordcFs t he seiz- ure of the ellects revendicated, and that they be j)laced in (he hands of guardians until judg ment is rendered upon the re- vendication. The iiamti of tln^ person upon whose affidavit the writ issues is in(h)rsed upon t)ie w>*it. -O. C. 807. 048. The formalities pi-cscrib- ed in articles tK)9, 9:52, 91 J4, 9:15, an09, respecting the service of the de- claration, apply likewise to at- tachment for rent. -O. C. 874, 875, am.;li, S. 5974. CHAPTER XXXVII Conservatory Attachiiiei): 9.'>5. If there is no other remedy ecpiaDy coiiveniciit, beneficial and efFectuj.l. tlu; plaiutifl'may ol)tain a conserva tory attachment upon produr ing an affidavit, showing : 1. That he is entitled to re elaiin the possession of movahk' property sold by him with a term for the payment of its price ; ^. That he is entitled to rank by preference upon the price of movable property, and that il is being dealt with in such a nuui ner as to defeat his remedy ; 3. That he is entitled, by ica son of some provision of law . to have mo\able property phucd under judicial custody, in oitlci to assure the exercise of his rights over it.— O. C. 83^, sdii r>4V. c. 39, s. 1. Civil Code, arts. 1543, \\m 1999. Supra, art. 15, s. 8. 950. The proceedings iijioii conservatory attachment arc subject to the rules governing: attachment before judgihenr. in so far as they can apply. CHAPTER XXX VI II Injunctions 957. Any judge of the Sii perior Courr may grant an in terlocutory order of injunrtion in any of ihe following cases: 1 . At the time of issuiim the writ of summons : a. Whenever it appears i>y tlii> petition that the piaintill is en tiHed to the relief demandeil. and that siich relief consists, in whole or in part, in restraining' the commission or continiiHiici INJUNCTIONS. 131 of any act or operation, either ffir a limited period or perpetu- ally ; /;. Whenever the commission or continuance of any act or op- eration would produce waste, or would produce j^reat or irre- parable injury ; 2. During the pendency of a suit : a. Whenever the commission or continuance of any act or op- eration during i he .suit would produce waste, or would pro- duce great or irreparabh; injury; b. Whenever the opposite party is doing or is about to do some act in violation of the plaintiffs rights, or in contra- vention of law, respecting the subject of the ac^^ion, which is of a nature to render the final judgment ineffectual. Neir. 0. C. Mma ; H. S. 5991; Cai. 520 ; N. Y. (503, l>()4 ; Enff. J. A . 1873, s. 25, sub-sec. 8; Eng. R. (Shl((, mi ; (hit. J^ .4., s. 53, sub- sec. 8 ; H. & L. 52 et seq. Supra, ivt. 15, s. 8. 058. An injunction cannot be granted : 1. To restrain proceedings at law, saving the power of the court or of the judge tc direct, by an order in any matter orsuit pending before them, that the proceedings therein be stayed : 2. To restrain the exercise of any ottice in a public or in ii i)rivate corporation. — New. EiKf. J. A. 1873, s. 24, sub-sec. 5; Cal. a a 3423. 059. After the issue of an interlocutory injunction, any additionnl injunction which is decujed necessarv mav be grant- ed. -.Vnr. O. C". 1033/; R. S. 55KU ; Cal. 527. iH\0. The application for an interlocutory injunction is made by petiti >n, supported by one or niore aftldavits verifyinc; its allegations.— O. C. 10;«/>, am.; R. S. 55)91. JHJl. In cases of urgent ne- cessity the judge may gr.ant an interlocutor}' injunction with- out i;otice. In all other cases he must re- <]uire notice to be given to the opposite party in whate\cr manner he deems proper ; but he may, in that event, grant an interim injunction, to remain in force during the time therein spt^cifled.— O. C. 1033r, n)n.; R. 8. 5991 ; Caf. oM 0«2. The judge n»ay, when the petition is presented, alio .' either party to answer in writ- ing the allegations of the oppo site party, and to file affidavits or to adduce evidence if neces- sary, and nuiy fix delays for so doing.— AV?r. 9CliJ. No interim or interlo- ciitory injunction can issue un- less tiie person applying there- for first gives security, in the manner and for the amount prescribed by the judge and to his satisfaction, for the costs and damages w'uch the oppos- ite party may suffer ^)y its issiie. In the case of an additional injunction, the judg(; may dis- pense with the obligation to give security. The judge may at any lime order that the security be in- creased or reduced, or tliat new .security be given in place of any which has become insufllcient. —New in parf.—O. C. 103JV^, 10:«i ; R. S. 5991. Supra, art. 559 et. s. 0«4. The injunction consists of an order enjoining the oppos- ite party, his servants, agents and employees, to refrain from a specified act, or to suspend all acts and operations respecting the matters in controversy, un- 132 INJUNCTIONS. der pain of all legal peiialti(\s. New in ixirt.-'O. C. 1033(i UYXie, am.; K. S. olM. JMI5. The order is served up )n the oppositL' party in the tnannei providi-d for writs of summons, or prescribed by the .pidfre. When an "nterlocutory in- junction is .L^riintod at the time of issuing the writ ol sunniions, it is served alon^j; vvitn such writ sumnioninjjj tlie o[)})osite party to answer upon the merits of llu; petition t hereto annexed ; but, when it is granted during the suit, it is served along with the petition. — iVtw. IHKI, When an interlr n\\ injunction is grunted \. i.jur notice, the person against \vhom it is directed may, at any time befoi' juilgment. apply l>y mo- tion *,o have it vacated or modi- tied. The contestation upon such application is governed by the provisions of article 902. — AVfr. Cnl. rm, 532. \}ii7. Any injunc'tion may from tin\e to time be suspended for sijch period and upon such conditions, as to security or otlu-rwise, as the judge deems reasonable, and may after- war991. fHJH. The final judgment ad- judicates upon the conciusions oi t he petition, a.s well as apon the merits of the action. If tMc jndgtiienr is in favor of the ptaintiir, it proiroun<;es the injunctions required, and adju dicates as to costs. It must be served on ths op- posite party.— i\V>r inpn r; O. C. 1033/ ; R. S. 5991. Supra, art. 547. !>(fl{). Any final judgment, conlirmiii^ am fnterlocutory in- junction, renuiins in force, not withstanding appeal or review. An interlocutory injunction remains in force, notwithstami ing a final judgment dissolving' it, whenevei- the petitioner, ini mediately upon the rendering of the judgment, declares his intention to take the case to review or to appeal, and, with in two days thereafter, ser\cs his inscription in review oi \\\ appeal. hie cou)-t before which tlic appeal is brought, whene\ii the a})})lication is made duriii'.: term, or two judges of llie Coml of Queen's Bench or of the Su perior (jourr, as the case may be, whenever the application is made out of term, may pro\ is ionally suspend any in junction. New. O. (;. mWi ; K. S. 5991. !Siipra.. art. ()0S. 970. The jadge may order the destruction, demolition or removal of anything dojie in contravoition of tlie injunction, if it is practicable.— O. C. ]{y,i'hii, am.; K. S. 5991. Sirpra, art. (508. 9 71. Any person against whom an injunction is directed. who infringes or refuses to obey it, oj- any person wlio. a! though not named or de.scrilud therein, knowingly ( ntraveius its cononands, is subject to a fine not exceediiig two t)iou sand s, witJiOiU prejudice to the rigiit of tlie 'cu-': V 'iT, '.''eved to reecver dam- ■j sc'.i Ol '; .'ties may be re i/» 1 .-.; V =. = ijted until the (01! : .vc 'li^' party obeys the in jun<'t.":-i!,. — Nem in part. O. C. 1033r.., .- M., 10;33vi; K. S. ni**.!!. «VJi\ i'lKi penalties provided JUDICIAL SEQUESTRATION. 133 by the preceding article arc imposed by rule previously served upon the cont»'avening paity. — Aew. CHAPTER XXXIX. JUDICIAL SRQUKSTRATION. mti. A\\ demands for secpies- trjilion are math' by petition to tlie eoJirt or to the JudKe. It may also, according to cir- cumstances, be or(h*red l»y th<^ court without beinjj; demanded by the parties. -O. C. 870. S>;.ora, art. 15, s. S, 7i:J, !)51. Civil Code, art. 1H2:}, et s. 074. The judj^ment ordering* secpaestr&.tion commands the parties to appear before the court or ,^)efore a judge, on a (lay fixed, to appoint a seques- trator ; and if the part'es can- not agree, or if one of tlicm makes default, the .judge ap- points one of liis own accord. — 0. C. 877, am.; Ord. 1667, iif. 19, art. 4. Supra, 5i)l, 8. 8. U75, Notice must fto given t(t Cie sequestrator of his ap- pointment and of the titne and place at whi'ii he \^'i!l i)e swoni. — AV»r. Ord. I()3. IV. J*RoiiiBrrioN loo;{, V. (JiONKRAL Provisions I 00«. 97 H. In all cases of general public int<»rest, t'le Attorney. General must and \n ali othe \li ;-i',:'t 134 CORPORATIONS ILLEGALLY FORMED. 'f cases may, but need not, unless suflicient security is siven to in(len?nify the Governujent for the costs to be incurred, prose- cute violations of the law in the followinf^ cases : 1. Whenever any association or number of persons acts as a corporation without being legal- ly incorporated or recognized. 2. Wheneverany corporation, public body or board violates any of the provisions of the acts by which it is governed, or be- cotaes li.hletoa f>rfeiture of its rights, oi loesor omits acts, the doing or omission of which amounts to a surr<'nd<'r of its corporate rights, i)r;vileges and franchises, or exercises any power, franchise or privilege* which does not belong to it or is not conferred upon it bylaw.—- O. C. mn,atti.; R.S. 5}>.S8. Su/)roard lias forfeited its rights, privilcucs and franchises, the judgnu'iii declares it to be dissolved and to be deprived of its rights,— O.C. U)08. Civil Code, art. 3(58, s. 3. 986. Any creditor or other interested party may demand the appointment of a curator to tlie property of the corporation, public body or board so dis solved. The rules governing the ip pointment of curators to di'^ solved corporations, their rijzliis. powers and obligations, apidy to such curators. -^ATcM'. () <'. 1098, 1(MHM(I15;C. C. 371-37'"; R. S. 5798 ; C.C. «84-(i88 ; O C vm-vxm; R. s. mti. Intra, art. 1339. Civil Code, art. 371 et s. MANDAMUS. iar> SKCTION II U>i}U'pation of Puh/ic .»/' ('or- pDi'itie (JJflces or Frdnvhiscs 1>K7. Any person interested may brinjj; a complaint wlien- ever another person usnrps, in- tnules into or unlawfully holds or exercises : — 1. Any public odice or any franchises or privilef^es in the Province : 2. Any oflice in any corpora- tion or public body or board. Whether such oflice exists under the connnon law or was created in virtue of any statute or ordinance. -C. C P. 1016, am. Snjyra, art. 15, s. 5. i}HH. The issue and the form of tiie writ of >unimons and the proceed in jis thereupon are gov- erned by the rules contained in articles 980, UHl and <>8:i— O. C. 1017, (tin. i>H9. The plaintiir, in addi- tion to the alle)',ations contrern- in^ the ustjrpation and illegal detention of the oftice, franchise or privilege, >nay in his petition declare the names of the person who has a right to such office, franchise or privilege, anlic IxKly or court of inferior juris- diction omits, neglects or re- 13(1 MANDAMUS. fiiHcs 1,() ])t'rfoirii any duty be- l(>n^;inj? to such olHci' or any act which hy law he is hoinid toper- form ; 4. Wiicncvcr any heir or rc- prcsi'iitat ive of a puV)lic olficor omits, refuses or U(^glects to (h) any act which, as such heir or representative, he is hy law oh- lij^ed to do ; 5. In all otherciises in wliich the j)l;unliir is interesl5. The pi i){!eedinprs are, in all otlu^r reHpects, subject to th(^ same I'ules and delays as summary matters. \eir. O. C'. 1021. I iifra, art. 115:5 et. s. IM>«. If the petition is well founded, the ,iud,u;e may order the is<-ue of a peremptory writ, comman linii; the defendant to do the thin,t>; diMunnded of hinj, Whenev(!r an election has to be ina contrary. — O. C. 1027, u m. IHH). Nevertheless, eviiy such election and every ii rit has been served, a fine not exceeding two thotisand dollars, payable to the Crown, with or without imprisonment for a term not exceeding one year, may be imposed for every stich infraction. Such fine is imposed in the manfier j)rescrit)ed in article 1(K)2.— AV/r. Supra, art. KW. SKCTION V (h'vrral Provifiious HHUi. No a|>peal lies to the Court of Queen's liench from any final judgment rendered under the provisions of this Chapter in matters relating to municipal corporations jin. The writ is in the same form as ordinary writs of suio- i mons ; and the proceedin'j;s are sui)ject to the same rules and delays as ordinary matters. — ■ >. t;. 103(5, am. 1()»0. The inscription in ap- peal from the judfj!;ment of the I court itf orif^inal jurisdiction, or i from that of tlie Court of Re- ' view, can he filed only within thirty days from the rendering; of the iudfjjment appealed from. — O. C. 1U:I7, mn.;ry{ Vic, c. 41. s. 7. Infrfu art. 120l>. CHAPTER XLII Petition of Riglit 1011. Any person having a claim to exercise against the (rovernment of this I'rovince. whetlier it he a revendication of movHl)leor immovahle property, or a claim for the pn.yinent of money on an alleji^ed contract, or for damages or otherwise may address a ptitition of right to Her Alajesty.— O. C. SSBa; R. S. 5970. Supra, arts. 48, 54. 1012. Such petition Is a'l- dressed to Her Majesty, and must state the names, the occu- pation or (piality, and the domi c'ileof the sup|)liant and of his attorney, if any, and hv in oIImi- respcf'ts drawn up in accdc dance with the ordinary nihs of pleading.— O. C. 8H(}/y, am.; R. S. 5«)7(). Srr Form, Sclu'd. V., Aj)fh,i dix. l()in. The petition musl lie s»j|)i)orted by an aflidavit <>f i he suppliant or of a (onjpetent pt r son, Vi-rifying the truth of ilic facts therein alleged, and iiay be n,ccompanied witli a factum. -O. C. 8.S()c, (im.; R. S. .507(1. 1014. The petition is Itii with the I'rovincial Secretary for submission to the Lienttn ant-Governor, in order that lie may consider it, and, if he I Imik fit, grant his liat that right lie done. No fee is paya'ole on leaving; or on receiving back the pi-ti tion.— O. C. KStir/,; }{. S. 5U7(i. 1015. Upon the liieuteiiant iJovernor's tiat being obtaiiicd, the petition and liat are tiled in the oflice of the Sujierior Cmirt in the district of Quebec. -O C S8Gr ; R. S. r>97(). tOl«. The r/appli«nt niust. at the time he files his petii ion in the protliunotary's otiice, pro duce and tile the written i)r()ofs which he has alleged in support of his claim, together with an inventory of such exhibits. He must also deposit a uni of two hundred dollars, \s liiili sum is intenrled to pay the costs of the Covernment if the < art should grant any ; if not, i i^^ returned to the sujipliant. 0. C. 88()/' .• R. S. ;.07G. Supra, art. 155 et. s. 1017. A copy of the petition and of the Lieutenant I iov ernor's flat certitied by the |)ro thonotary, with an endors itiou thereon that the deposit lias rETITK»N OP IIKIIIT. 131) [yeen iimrte, is left at, the oflUie | of Hie Att(U'iH*y-(irii«'raI witli a rioii of a contestation wit mi | thirty days after the «>i)7»5. S< . Fonn, Sclied. W., Ap^nn-^ ill.r. UttH. If within such delay, to ix-estahlished by the pivxliic- ; tloii of a certillcate of serviee of the petition, (iat and notice, a contestation is not filed, the suppliant proceeds as in a case hy default. If a contestation is (lied, the suhseijuent proceedings are. the same as in an ordinary contest- ed ease, save that a trial hy jury cannot he had.~0. C. 88()A , HHO/t ; II. S. oi)7(). 1019. In ease a n y pe 1 1 1 1 on ( ) f rii^iit relates to the recovery of any immovable or movable pn» perty which has been granted jivvay or disposed of, by or on l)ehalf of her Majesty and her pn^decessors, a writ of sum- mons is issued by the protho- iiotary, upon tlic written rccpii- sition of tne suppliant, and such writ is served, together with a copy of such petition and of the Lieutenant-Governor's fiat cer- tified by the prothonotary, upon th'^ person in the possession or onjoyment of such immovable or movable property, command- ing him to appear before the court within the delay therein mentioned, and to plead to or answer the claim.— O. C. 88*5/, am.; 11. S., 5970. 102(). The inscriotion in ap- peal from the judgment of the court of original jurisdiction, or from that of the Court of Re- view, cannot be filed except within thirty days from the rendering of the judgment ap- pealed from.--0. C. K8(V/, (thi.; n s., r>i)7(». fnf'rti, art. I2(«). I«UI. The costs may Im3 awarded to or airiinst the sup- pliant, as in ordinary suits. All cost > an ; K. S. 5!r7ti. ^apr<«, arts. 571), 1)04, et. s. 1023. When the Govern inent is adjudged to surrender immovable property, the sup- pliant inav after the ex|)iry of the delay lo appeal, or, in case of a{)pe;'.l, fifteen days after the rendering of the judgment in appeal, oi)tain a writ of posses- sion, under wtiich the suppliant is placed in possession. — O. C 88(5// ; U. S. 597(5. Supra, arts. .579, filO, Oil. 1034. When the Govern- ment is adjudged to pay costs or a sum of money with or with- out costs to the suppliant, after the expiry of the delay to ap- peal, or, in case of appeal, after the rendering of the judgment in appeal, a certifie ^"^^ r>. ^> <^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I l-iM IIM 12.2 li£ lillllP. 1.8 1.25 1.4 \h. •^ 6" — ► /, % Photographic Sciences Corporation 23 WEST MAIN STREET •VEBSTER.N.Y. 14580 (716) 87V-4503 'Q< ^ 140 HYPOTHECARY RECOURSE. money-^ or costs whicli have V)eeM .1 warded to the suppliant by th(i .judgment. — O. C. 88(10, am.; II. 8. 5070. CHAPTER XLIII HypoMnHjjiry It <^ <; u v so A^aiuHt IinnHyViiblns of Wliieh t!i<^ Owners are unknown or 1 025. When tlic owner of an iiy;»othe>;at-ed iiuinovah'e is un- known or unceriain, the cred- itor CO wliotn the capital or two years of t-he interest, or two years of arrears of any consti- tuted or other rent, secured by such hypothec, is due, may pre- sent a petition to the Su))erior Court, praying for the sale of such innnovable. — O. C. 900. 1020. Such petition must contain :— 1. All allegations necessary to establish the debt and the hypo- thec ; 2. A description of the im- movable ; li. Tlie nar.ies of* the occupier, if the immovable is occupied, and, if it is not, the nam^es of tlu^ last known occupier, the yjeriod for which it has remain- ed unoccupied, tl»e nanu's of all the known owners since the hypotjiec was created, and a de- claraiion that the petitioner lias in good faith made due sei'rch and used due diligence to dis- cover the owner ; 4. Conclusions praying that ;)ublic notice be given to the actual owner to appear and an- swer the petition, and that, \n default of his doing so, tlie inj- movable be brought to sale.— O. (\uh lished in one of the nearest dis- tricts. Except in the cities of Quebec. Montreal, Three Rivers, Shcr- V)rooke, St. Hyacinthe and Sorel, and hi the town of St. Johns, it must moreover i)i' read and posted in both Ian guages,at the door of the cliuich of the parish in which the iiii movable is situated, on a Stin day, immediat'jly after morning service ; if there is no such scr vice, it is sullicient l/O merely post tVie notice. If there is no church, the no tice must be posted in tlio registry office of the locality — O. C. iK)4, ttni. 10:50. If, within two nionlli;; from tlie last insertion in the newspapers, no person appcjirs as hereinafter provided, the petitioner proceeds as in .my other suit in whicli the delVn dant fails to appear ; and upon proof that the required forniali ties have been observed, the court declares the immov.ilde hypothecated, and orders that it be aohl for the payment of the COMPULSORY PARTITION AND LICITATION. 141 petitioner's claim.— O. C. 90o. See Form, ScJied, Y., Ajrpen- (Jix. 1(>;}1. Service of this jiidfj;- iiu'iii is not necessary.— O. C. Supra, art. 547. 1033. Fifteen days after judj^rnent rendered, a writ is- sues command infj; the sheriff to seize and sell the immovable hypothecated, ol)serving the foiinalities reciuired for ordin- ary seizures and sales, of im- iii()vaV)les, savinjj; the minutes of seizure, which are not re- (juired.— O. C. IK)7, (im. Supra, arts. 614, 705, 708. 1083. Any proprietor, or any holder entitled to exercise rights of ownership, may, at any time before the rendering qf the judgment ordering the sale, enter an appearance, speci- fying his title and the exteiit of his right of property ; and, with- ii) two months, to be covuputed from the expiry of the delay mentioned in article lOTO, the petitioner is bound lo file in the otlice of the court a demand against the pivrty appearing, for the recognition of the hypotliec, and to serve it upon such party. The same proceedings are had upon such demand as upon or- dinary suits for the recognition of hypothecs.— O. C. 908, am. See Form, Sched. Z., Ajrpen- dijc. Civil Code, art. 2058 et. s. 1034. If several persons ap penr, 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 pre- viously establish an ostensible right of property, or unless one of them pays the amount of his claim and costs. — O. C. liOO. 1 035. In the case of there being opposing claimants to the proj)erty, without any con- testation of the hypothecary de- mand, the court may, reserving its decision upon the opposing claims, grant the prayer of the petitioner, saving to tlie parties appearing, and to those who have not appeared, tlu ir claims upon the balance of tlie moneys levied, the distribution of which is made in the ordinary course. — O. C. 010, Fniuh Version. 1()36. If one or more known owners are in possession jointly with others who are unknown or uncertain, the creditor niay, in the ordinary manner, sue th3 known owners as possessing Jointly with others unknown or uncertain, and proceed in the same suit in the manner here- in above provided, against those who are u nknown or uncertain, modifying the notice which is to be published so as to nieet the circumstances. — O- C. Oil. CHAPTER XLIV Compulsory Partition ami Ijic'itHtioii 1()3V. When co-heirs or co- proprietors cannot agree upon a partition of their common pro- perty, the action at law to ob- tain such partition belongs to the one who is lirot to institute it.-O. C. 010. Civil Code, arts. :)0r., 080, et. 8., im^, 1452, 1808. i038. All the co-heirs or co- proprietors must be pjirties in the suit for a partition. — O. C. 020, am. Supra, art. 521. 1039. A special tutor must be uanied to eacli minor who.se M./:>?; m 142 COMPULSORY PARTITION AND LICITATION. #- interests are opposed to those of any other minor.— O. C. 921. Cirif Code, art. (598. 1<)4«. The court, l)efore ren- dering Judgment upon the suit for partition, orders that the immovables shall be viewed and valued by experts apjKunted ac- cording lo the ordinary rules, in order to ascertain whether the whole of the immovobles can be conveniently divided, and, in such case, to form the shares according to tlie j)rovisions oi articles 702, 708 and 104 of the Civil Code.-O. C. 922. Supra, art. 892 et. s. Civil Code, art. (UK). 104 1. If al3 the i)arties are of full age thev may agree on one expert.-O.'C. 928. Supra, art. 898. 1042. The same proceedings are had upon t!ie report of such expert as upon any other report of experts. -O. C. 924. Supra, arts. 40(> et. s. 414 et. s. 104:5. After the report of the experts has been homologated, the court sends the parties be- fore the prothonotary or some other person to proceed with the allotment of shares, minutes of which are talcen.— O. C. 925. 1044. If the suit is for an ac- count and a ])artition, the lots are not formed until after the accounts, tlie returns, the for- mation of the mass Jind the pre- takings have been determined by a practitioner, who is named by the parties or by the court, and whose report must also be homologated. — O. C. 920. S^ipra, art. 410. CivU Code, arts. 699 et. s., 712 et. s., 1355 et. s. 14(58. 1045. When immovables can- not be advantageously divided, or when there are not as many lots as co-partitioners, the court mny order that such immov- ables V)e put up to public iuiv- tion and be sold by way of liti tation.— O. C. 927. Ciril Code, art**. 8(K), (598, 1 :>(;•.> 15(58. 1<>4<{. Hules concerning vol untary licitation are contained in the Tenth Part of this Code. Tlie provisions of this C'liaj) ter apply to licitations jiuii ciouslv ordered upon action^ of partition.— O. C. 928. Infra, arts. 1841 et. s. I.Tm. 1899 et. s. Civil Code, arts. 098, 709. 1047. When the court li.is ordered a licitation, the j)Iaintiir must give notice that the iiii movables therein designated will be put up to auction and ad judged to the highest and last bidder at the sitting of (he Sii perior Courc next after the ex- piration of one montli from trie first insertion of such nolice, subject to the conditiojis men- tioned in the list of charij;es, and announce that all opposi ' tions to the sale must be filed at least twelve days before tlu' day fixed for tlie sale, and that all oppositions for payment must be filed withirj six days after the adjudication, on [laii: of being foreclosed. — O. C. !)21), inpart^ am ; R. S. 5980. See Form, Sched. A A., .ly^ pendix. 1048. Such notice must Ix' published : 1. By being inserted in the Quebec Official Gazette twiie during the course of one month ; 2. Moreover, if the iniinov ables are situated in the city of Quebec, Montreal, Three Hivers, Sherbrooke, St. Hyacintlie or Sorel, or in the town ot St. Johns, by being inserted in a newspaper published in Frentli and in one published in Kiiglisli COMPULSORY PARTITION ANIi LICITATION. 143 in tlie locality, ajul if there is only one new8pai)ei- in the dis- trict, or all are pvihlished in the siune language, in hoth lan- guages in t he same newspaper ; iuid, if the ininiovahles are sitn- ated in a parish other than those contained in the above men- tioned localities, by beinj^ read iUoud and posted on the tliird Sunday before the daj on which tilt licitatioii is to take place, at the door of the church of the parish in which the immovables are situated immediately after niorninj; service, or if there is no church, at the most public place in the lo(!ality. If there is no service, it is sufficient to merely post the notice.— O. C. 92!), m), am. ; R. S. 5i)S0. 1()4». If the plaintiir fails to proceed with the publication of such notice within fifteen days from the judgment of licitation, any other party may do so, and the first who takes such pro- ceedings has the preference, and has alone the right to be paid the costs of the licitation.— O.C. y;n. 1050. Oppositions to secure cliarges, to withdran or to an- nul, in respect of immovables which are to be sold by licita- lion, cannot be received after the twelfth day previous to the day fixed foi* the licitation ; if they are filed after that period, the right of the opposani is con- verted into an oppositljti for payment cut of the price of the innnovable.— O. C. 1)H2, am. Supra, arts. 799, 1047. 1051. If any opposition to secure charges, to withdruw or to aimul or any other proceed ing incidental to the licitation, cannot be decided before the lay fixed for the sale, the iicita- lion is suspended, and when rendering judgment upon such opposition or proceeding the court may, if necessary, fix an- other day upon which the sale may l>e proceeded with, aftf»r the {)art ies have caused another notice, in the same form as the first in so far as it can apply, to l)e j)ublished in the Qiuhcc OJficial (lazilfc at least two weeks before the day thus fix- ed. -O. C. 9;«, am. ; H. S. 5981. 1052. Bids may be made in writing at the ofllce of the court in the same manner as in cases of sale of immovables by the sheriff, and on the day appoint- ed bids jire received at the office of the court, but the adjudica- tion is completed before the court. Minut'.'s are drawn up of sucii bids and adjudication. Strangers are in all cases ad- mitted to bid.-O. C. 981. lOoiJ. The a'ljudication is made in accon.ance with the conditions contained in the list of charges, which must have been approved by the judge after hearing the parties, and must have been filed in the office of the court at least fifteen days before the day fixed for the sale. After the adjudication is com- pleted and the purchaser lias complied with the conditions by payir.n; the moneys which must be deposited in court, the protlionotarv must prepare a deed of sale, which nmst be drawn similarly to a sheriirs deed in so far as the provisions of article 7(30 are applicable.— O C. 935, am. 1054. The adjudication, after the observance of the formali- ties above prescribed, transfers the property with its active and passive servitudes, has the same eflects as a sheriff's sale, and discharges tl\^ property in the 144 ACTIONS OP BOUNDARY. same manner from such other charges, privilej^es and hypo- thecs as are not mentioned in the list of charges.— O. C. 9:36. Supra, art. 778 et s. Civil Code, arts. 2081, s.6, 215(i, 2157. 1055. The price of the adjudi- cation must be paid according to the conditions of tlie s:ile, and, unless otherwise provided, into the hands of the prothono- tary within three days after adjudication, saving the pur- chaser's right to retain the moiieys on giving security as in the case of a sheriff's sale ; and the purchaser failing to pay such price is subject to the same penalties and liabilities as the false bidder upon immov- ables sold in execution.— O. C. 9H1, am. Supra, arts. 751), 701 et s. 1050. All oppositions or claims for payment out of the proceeds of the licitatiou must be filed in the office of the court within six days after the adjudi- cation, after which period they cannot be received except by order of the court and upon such conditions as it m4y impose. — O. C. 938. Supra, arts. 790, 791, 792, 1047. 1057. The distribution of the purchase money is subject to the same formalities as in cases of execution against immov- ables, and the party prosecuiing the licitatiou is bound to obtain the certificate of registered hy- pothecs which is necessary for that purpose.— O. C. 939, am. 1058. If any immovable is situated partly in one district and partly in another, its licita- tiou as a whole may be demand- ed and may be ordered in either district, if the jurisdiction in such case is not assigned by law to a particular court.— O. (". 940. Supra,, art. 101. CHAPTER XLV ActioiiH oi' ISouiiilury. 1051>. Whenever two con- tiguous lands have never been bounded, or the boundaiics have (Hsappeared, or tlie fcnci's or boundary works have liccn wrongly placed, and one of t he neighbours refuses toagree upon a surveyor to determine the boundaries or to verify oi- to rectify the division line, as tht; case may bj, the other party may bring an action against him to compel him to do so.— 0, C. 941. Civil Code, arts. 504, 504a. 1000. If the parties do not agree, the court names a sworn surveyor, whom it charges witli making a plan of the locality, showing the respective prctcn sions of the parties, and with making such other operations as it may deem necessary. 0. C. 942. 1001. The surveyor thus named is bound, under his oath of office, to proceed in the same manner as experts. — O. C. Dili Supra, art. 398 et s. 1002. If the parties desire it, more than one surveyor may be appointed.— O. C. 944. 1063. The fixing of bounds, the verifying of ancient bound- aries or rectifying of divisiou lines, is ordered in conformity with the rights and titles of the parties, and is done by the per son named by the court, who proceeds in accordance with the judgment, and, if necessary, places boundary marks in pros ence of witnesses in accordance with law, and must draw up a DISCHARGE PROM HYPOTHECS. 145 statement of his operations and ret urn the ori^^inal of such state- niint to the court. — O. C. 945, ant. CHAi'TER XLVI I'osscssory Actions l()«-t. The possessor of any iiimiovable or real right, other than a farmer on shares or a liolder by sufferance, who is (iis- turbed in his possi'ssion, may bring an action in disturbance against tlie person wiio prevents his enjoyment in order to put an end to the disturbance and he maintained in his possession. Tiie action for repossession may be brought l)y any person who has had possession of an iintnoval)le or real right for a year and a day against any per- son who has forcibly disposs essed him,— O. C. 94(5. Civil Code, arts. 476, 572, 2192 et s. 1065. Possessory actions must be brought within a year from the disturbance, — O. C 947, lOOe. Actions on disturbance or for re-possession cannot be joined with the petitory claim, nor can the latter be brought until the action on disturbance or for repossession has been ter- minated and the condemnation has been satisfied and executed. Nevertheless, if the party who has obtained judgment is in de- fault with regard to the taxa- tion of the costs or the liquida- tion of the damages, the other party may bring his petitory ac- tion on giving security that he will sati.sfy such condemnation. -0. C, 948, am. Supra, arts. 87, GIO, (ill. CHAPTER XLVII Discharj^o rro:n Hypothecs, or Coiilirniation of Title 1O07. Any person wlio has ac(iuired immoval)le property by any title of a natu 'e to transfer ownership may free such proj)- erty from any liypothecs witli which it is charged, by obtain- ing a confirn)ation of his title according to the formalities I hereinafter prescribed. — O. C ! 949, am. j lOiiH. Such person must i lodge the title which he seeks I to have contlrn»ed in the oflice I of the Superior Court, in the i district where the inmiovabia is situated, or in which the coij- tirmation of the title must be obtained, and obtain from the prothonotary a notice in French and in English, mentioning that the deed has been so lodged, containing a designation of the deed and of the parties thereto, a description of the immovable, the date at which the applica- tion for confirmation will b»» presented to the court, an indic- ation of the persons who poss- essed the inmiovables during the three years next before such notice, and calling upon all creditors who claim to have any privilege or hypothec upon the immovable to tile their opposi- tions within six days from the day fixed for presenting the ap- plication If the deed comprises immov- ables situated in difTerent dis- tricts, an application for con- firmation of title sliould be nwide in each districts for such immovables as a»3 situated therein. When the imtnovable is situ- ated partly in one district and partly in another, the proceed - 10 "r?i 146 DISCHARGE FROM HYPOTHECS. in^8 may be had in either dis trict, and avail for the whole of the immovable.— O. C. 950, am., 951. Sec Form, Schcd. lili. 1068. Svpra, art. 101. lOOO. Such notice must be published : — 1. By being inserted in the Quebec Official Gazette twice during tlu? course of one month ; 2. Moreover, if the immovable is situated in the city of Quebec, Montreal, Three Rivers, Sher- brooke, St. Hyacinthe or Sorel, or in the town of St. Johns, by being inserted in a newspaper published in French and in one published in English in the lo- cality, and if there is only one newspaper in the district, or all are published in the same lan- guage, in both languages in the same newspaper ; or, if the im- movable is situated in a parish other than those contained in the above-mentioned localities, by reading aloud and posting such notice on the third Sunday before the day on which the ap- plication for confirmation of title is to be made at the door of the church of the parish in which the immovable is situat- ed immediately after morning service, or, if there is no church, at the most public place in the locality. If there is no service, it is sutTicient to merely post the notice.— O. C. 951, 952, am.; R. S. 5982, 5983. 1070. In the case of immov- ables by fiction of law, the pro- ceedings are had in the district where the vendor or assignor had his domicile during the three years next preceding the execution of the deed to be con- firmed, or, if during that period he had his domicile in more dis- tricts than one, then in the dis- trict *in which he is actually domiciled, giving the same notice in the other districts in which he was don?iciled dnriri}); such three years.— O. C 953. Civil Code, art. 382. 1071. Upon the day incn tioned in the notice, the appli cant must pre:'>ent his applita tion for confirmation to tlio court.- O. C. 954 ; R. S. 5981. 1072. The applicant u\u>\ file with his application :- 1. Certificates of the publidi tions and posting recpiired, if such have been had, and copiis of the Quebec Official Gaz*ilc and of the newspapers contain- ing the notices ; 2. Certificates from the rc^is trar or registrars within whose divisions the immovable is or was situated, prepared, in so far as may be, in confoniiitv with article 771.— O. C. 954, D.m, am. ; R. S. 5984. 1073.— The provisious of ;ir tides 772. 773 and 774 apply also to the certificate mentioned in the second paragraph of the i)re ceding article. — O. C. 956, (dti. 1074. All hypothecary <'n' ditors, whose rights are not made known bv the deed of which confirmation is sought, or by the registrar's certificate, are bound, on pain of bciny; foreclosed from doing so, to lilc their oppositions on or before the sixth day after the day fixed for presenting the application.— O. C. 957, am. Supra, art. 1068. 1075. No opposition is, liow ever, necessaryfor the presciva tion of the principal of rents created in place of seignorial rights. The provisions of article.s TiHJ and 791 apply also to proceed ings to obtain confirmation of title.— O. C. 958. 1070. During the month pre- DISCHARGE FROM IIYPOTIIECS. 147 ,s('ril)ed for tlie publication of the notice of the application for coiinnnation of title, an}' cre- ditor of the vendor or as«si<^nor orofliis predecessors in titU', may appear at the ollice of the court, and hid an increase over the sum, price, or other con sidcration or value, if any, inen- tidiied in the title, and have lus l)i(l received, provided the in- crease he ef hypothecs, the ])rice mentioned in tln^ title deed, or the amount \\hicli such i)rice has reached by the outbiddiiig. When, however, he lias an hypothecary claim against the property, which appears by the certificate of the registrar, he may retain tlu^ purchase-money, to the extent of his elaim, until .judgment has l)een rendered, provided he furnishes the pro- thonotary with good and suflic- ient sureties for all damages that may be suffered by any in- terested party in the event of the non-payment of such sum as the court shall order. If it appears l)y the certificate of the registrar that there are no hypothecs and if there are no oppositions or claims, or if the amount which has been de- posited or for which security has bf^en given is sufficient to pay all the charges w-hich ap- I)ear, then judgment of confir- mation is pronounced purely and simply. — O. C. 00.3, ani. ; U. S. 54, (UH. Suprd, art. 8!>2, et s. tOS2. If tlie value determin- ed by the experts does not ex- ceed the price paid in by the ■5 I '■H! i 148 LESSORS AND LEHSEE8. appli(!ant, the judgment of con- lirinatiou is pronounced purely and simply. If tlu! value determined by the experts exceeds the |)rice thus paid in, or if no i)rice is nuMition ed in tlie title-cU-ed, tlie appli- (!ant, cannot obtain a confirma- tion unless liedeposits thediller- ence between the value t bus as- cerained aiul thf pr:ce, ortlu; whole of such value, if no price h.is i)c(ui Rfjjreed upon.- (). C tOHti. The provisions of the last two preceding articles do not apply io cases of expropria- tion of pi'operty by compt^tent authority for jjublic purposes when the compensit ion or iji- denuiity has been settled by ar- bitration or by experts accord- ing to law.— O. C. i)m. Civil Code, arts. 407, livSl), et s. 20,S1, § (5. R.S. arts. 5754a, et s. 1 ()84. Upon proof of the ob- servance of all the formalities hereinabove prescribed, judg- ment is pronounced confirming the title-deed as free from all hypothecs other than those mentioned in article 1075— O. C. 0(57. Civil Code, art. 20H1, s 7. 10H5. If the applicant tiles a written declaration to that ef- fect, judgment may be rendered subject to the liypothecs men- tioned in the registrar's certifi- cate, and to the oppositions and claims filed; and in such case the immovable is discharged only from such hypothecs a> are not mentiotied in such judg- ment.— O. C. m>8. KKSU. The price deposited is distributed under an order of the court, as moneys levied upon the seizure and sale of im- movables under execution. — O. C. JK)5). 1087. The prothonotary, be- fore delivering to any person a copy of any jud has a right ,to demand from the apiilicant ilii> costs and expenses of such rcL; istratioM, and <»f the cancellini^s \vhi(di it occasions. (). ('. OTo. Civil Code, arts. 215(1, 2157. loss. The word " hypathcc " in this chapter includes all |»ri vilegt!s all'ecting real estate. O. ('. !)71. CHAPTER XL VIII C'erlaiM l*iM)('e«'tlliij»H ll<'- twoen lit'MsofH uiui IjcsHees. lOSO. Whenever any rent is due by a lessee and is not p.iid \^•hen due, the proprietor or li-s Ror may notify the lessee, in writing, to (piit the premiso lea.'^ed within a delay wliicli sliall not be 1 ss than three clear days; and, if iie (juits within the .said delay, the rent due is remitted him. If tlie lessee refuses or ue gleets to com])ly witii the said notice within the specified de- lay, the lessor may, by suit be fore a conipetent court, have nil the movables garnishing the leased premises, and which have not been removed within the specified delay, attachtd. and have them sold in the ordin ary manner, without the said lessee haviiig any right to nvail himself of the exemption from seizure provided for undei art icles 508 and 501), paragra|)h '1. The lessor neetl not avail him self of the benefit of this art irle. and in that case he retains all SEPARATroN BETVVEKV OONSOIITS. 140 his rif^htH and reconrcros as tlioiigli t'lis aitich^ did not «^x- ist. Neir. O. C. nrifW, (M) Vic, c. •")."». ClIAI'TKR XIJX Sopuratioii Brtwoen Coii- sortH I. Skpakation ok PuOI'ERTV ioi>o. II. Skpauation kkom Rkd and Boa Ml) io»U. KKCTION I Separation of ProjU'tly 10»0. No suit for separation of property can be brou{.;lit by a married woman without tlie piovjous authorization of a JudjiCe, granted upon a petition to that effect, or upon conclu- sions for that purpose contained in the declaration in such suit. O. C. 972. Supra, arts. 78, 5()9. 1 01*1. Suits for separation of property must be bron<;ht only in I he ca-es mentioned in art- icle 1311 of the Civil Code, and within the jurisdiction prescrib- ed by article S)G of this Code. — 0. (f. U73, am. 101)2. The formalities re- 'luired for ordinary summons in [ordinary cases j* must be strict- Ij ol)served hi such suits, and the consort summoned has no power to dispense with the siune, either directly or indi- rectly, even as regards the de- lay upon the summons. Notice of such suit must be given and published during one month in the Quebec Official d'avrffr, and in two newspapers at, or as near as possible to, the place when' (hr deft'iidant re sides, one of which is publishctl fn the l<'rench and the other in the Knglish language. No proceedings can be had in such suit until after t he publica- tion of such notice.— O. C. 1174 ; K. S. r)U.S7. 10J>:f. Whenever the suit for sei)aration of property is taken against the will of the husband, tlie wife may, with the author- ization of the judge, ol)tain an attachment against the movable property of the community, for the j)reservati()n of the share vvhicli she will have a right to claim when the partition takes place. The attachment is ellected in the same manner as attachment for rent, but the husband re- mains judicial depository of the property attached. The judge may, according to circumstances, allow the attach- ment to be released or suspend- ed, with or without security. — Ncir. O. C. UH7 ; C. F. C C. 20J. Supra, art. !'.")2 et s ; infra, art. 1102. Ciril Code, arts. 204, 205. lOO-l. Any creditor of the person sued for separation of property has a right to inter- vene in the suit, in order either to watch the proceedings or to contest the plaintiirs claim, and he may for this purpose set up whatever grounds and exer- cise whatever rights his del tor might.— C.C. 075. Supra, art. 220 et s. Civil Code, arts. 1031, 1315, 1316. 1005. Separation of property thus sued for cannot be granted * These words are found in the eorrosponding article of the old code, and api)«>ar to have been inadvertently omittt^d by the codifiers. 150 SEPARATION FROM RED AND BOARD. upon the coufosHiou or tlic ad niissioiis of til*' 'U'friidHut ; t lir ill U'^iit ions of tlu' (iccliir.'tl ioii must, l)«' (•Hhil)lislMMl l»y some ol.lu r Ic^nl pi-oof. (). C. 5I7(>. r/r// i'(Klv, art. \'M\. anus. Tlic judf^mt'iit, j)ro- nomiciiijj: scpiirul ion of propi'ily may al Mie same time determine the reprises of the plaint ill', or order that they hv determined by a pra'titioner or by exi)(»rt'^, if tliere is occasion for it. O. C. U77. SKpra,\XYiH. .'«)2, 410. Civil Code, art. VM\. l()f>7. Every judf^ment order- injj; separation of prop(»rty must be inscribed vvithort delay, by the prothonotary upon a iist kept for t liat purpose, and post- ed in the ol!ice of tlie court which rendered the judgment ; and such inscrii)tion and the date ihereof must be mentioned at the end of sucli judgment in tlie register in which it is re- corded. Nvu\ C. C. 1818, in jmrt ; R. S. ()235. loos. The judgment of sep- aration may be executed either voluntarily, by the actual pay- | ment, estaolished by an authen- tic act, of wliat tlie wife has a right to receive or get back, or i by legal means, by proceedings instituted for the purpose of ob- | tainingsuch payment, but with- out prejudice to the rights of third i)arties.— O. C. 081 ; O. C. 1312, injmrt. Civil Code, art. 1314a et s. SECTION II Sej)aration from. Bed and Board lOOO. No suit for separation from bed and board can be brought except within the.iuris- diction stated in article ^X) of this Code.-- AV»r. C. C. 11)2. ii,„. CIril Code, art. KSd et s. I loo. The suit is Itronulii, trie. C. Snpra, art. \)4i\ et s. 1I04. The trial of the case, tln' judgment, itsexe, ntion and its pnbli provisions contained in the preceding seetion.— O. C. 081). Supra, art. 1095 et a. Civil Code, art. 20(Jeta. CHAPTER L Oppositions to Martiaj^e 1 105. Opposiiions to marri- a are brought before the Su- piiior Court of the district of th" domicile of ti»e party vvliose marriage is opposed, or of the place where the marriage is to be solemnized, or before the judj^e of such court.— A^*" jr. C.C. 1 15. Supra, art. 15, § (5. Ciril Code, art. I'M et a. 1106. The opposition must be accompanied with a notice indicating the day and hour at which it will be presented. — O. C. \m, am. 1107. 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 represent them, a delay of five intermediate days being observed, with the usual addition where the distance ex- ceeds fifty miles.— O. C. 001. am. 1 108. The proceedings upon the opposition are in other re- spects aubjeet to the same rules and delays aa summary cases between lessors and lessees. — O. r.\m,am. I nfrn, art. 1151 et a. 1I0!>. If the opposant fails to present his opposition tjpon the day fixed, any peison in- teresteil may obtain judgment of non suit against him, upoji filing a copy of the opposition served upon such person ; and upon receiving a copy of such judgment, the functionary call- ed upon to solemnize the marri- age may proceed.— O. C. WW. Civil Codr, art. 143. 1 1 lO. If the opposant fails to proceed in che nninner prescrib- ed, the opposition is declared abandoned.— O. C. 004. 1111. The iidge. before rend ering judgment upon the oppos- ii/ion, may, if there be cause for it, summon the relatives, and, In defau'tof relatives, the friends of the intended consorts, in order that they may give their opinion upon the intended mar- riage, and that such further ac- tion may be had as to law may appertain.. If the opposition is made by a tutor or curator the judge can- not decide upon it without the adviceof a family council, which he must order to be called. — Neiv in part, O. C. 005 ; C. C. i:«. 1 1 12. Whenever an appeal or review has been taken, the proceedings thereon are sum- mary and have prececience. — O. C. OiK), am. 1113. If the opposition is dismissed, the opposanta, other than the father or mother, may be condemned to pay costs, without prejudice to the re- course in damages.— iV^^'?r, C. C. 147, m part. ^it 152 IIATIEAS CORPUS AD SUKJfC lENDUM. ^L'sass'-Pf^se, CHAPTER LI. Habeaw Corpus At! Siibjlc* iciidiiin in Civil Mutrois. 1114. Any peraon who is con- fiiuid or restrained of liis lil» erly, oi liervvise than under any order in civil matters granted by a court or judge liaving jurisdiction, or than for some criminal or suppose *d criminal matter, or any other person on his behalf, nwiy apply to any one of the judges of the Court of Quern's iJench, or of the Sii- j)erior Court, for* a writ address- ed to the person under whose custody be is so confined or re- stra?ni;d ordering the latter per- son to ng him forthwith be- fore the Judge who granted the writ, or before any other judge of the same c^yurt, together with the cause of his detention, in order to examine whether such detetition is iustifiable.— O. C. 1040, 1052, am\ Suprn, a . 15, s. 7. 1115. The application must be supported by an atlidavii, showing that there arc probable and .easonable grounds forth3 application.— O. C. 1011. Supra, art. 112. 1 1 Kl. The writ issjies in the name of thr; Sovereign, is sealed with the seal of the court to which the judge who granted it belongs, and is attested in the r.ame manner as any other writ. It is returnable withont de- lay, unless a term of the court is so near that tlie writ cannot be execuanl before such term, in which case the judge may order the writ to be returned dr-ring term ; and if the <^nd of term be so near that the writ cannot properly be execute ' during the term, it may be miule return- able during the following vaf;i. tion.-O. C. 1042. 11 17. The writ is served l)y leavingthe original with the per son himself to whom it is .ui dressed, or by speaking to liis upon a certified copy.— (_). C, Wi'A, (tin. J 1 18. If the person upon whom the writ of Habeas Car- pus isserved failstocomply w itii it, he is leld to be guilty ut a contempt of the court under whose weal the writ, issued, uiui the judge may grant a rule under the seal of the court, re turnable before such jr , or before the court for his ini|ni sonment.— O. C. 1044, aiu. Supra, art. SIM. 1110. Upon tlie return of the writ of Habx.as Corpus, or of the rule mentioned in artiele lllH, the judge proceeds, us soon as he conveniently cai\, to ex amine, by affidavit or by the examination of witnesses under oath, into the truth of the facts alleged, ainl decddes accordui^j; ly.— O. C; Wl,am. 1120. If the judge before whom the writ is returned in vacation is in doubt as to ilic truth of the facts alleged in ilic return, he may admit to bail the person so confiiu^d or restrained, upon his entering into a neo^ nizance with one or more sure ties, or in the case of minois or of women under mai'ital antlior if,y, upon security being given l)y recognizance in a rcasonal)le sum, for the appearance of tin' party b-.ifore the court on a lixed day during the next term, and, from day to day, to abide sucli order as the court may make.— O. C. 1040, am. PROCEDURE IN THE CIRCUIT COURT. 163 1121. The writ of Hahrr's Corpus i.s thereupon transniit- ted to the eourt, tojiether with tilt' recognizance .'ind nil the p.ipers connected with the pp- ])li(ation, and the court tiiere- u;)on makes sucl orders as to justice may appertain.— O. C. 1017. 1122. Tlie court n^ay direct one or more written issues for the trial of the facts allej^ed in the return, and sucli issues are tried either hy aflidavit or l)y the examination of witnesses before the court or judjjce, as such court or judge may think proper.— O. C. 1«'4H. 1123. The same proceedings are had '..\ term in the Cojirt of of Queen's Bencli and in the Superior Court, respectively, for controverting the truth of the return. - O. C. 10 h). 1 1 24. The courtor the judge may pronounce upon all costs incurred in the issuing, contest- ation and execution of the writ of lilt hens Cotims.-O. C. 1050. 1125. Whenever a writ of Habeas Corpus has been once refused by any judge, the ap- plication cannot be renewed be fore him or before any otlier judg(! unless new facts are al- leged ; l)ut the application may he renewed before the Caurt of Queen's Bench at its nextsitting in appeal at a place where ap- l)eals are l)rought from '^he dis- trict in which the application is made.— O. ':. 1051. SIXTH P A li T . TROCEDURE IN THE CIRCUIT (JOURT. CHAPTER LII General Provisions 1 120. All the powers coii fcrred upon the Superior Court, or upon thvi judges and otticers thereof, r"spectively, relaUvely to matters within their jurisdic- tion, are also conferred upon the Circuit Court, within the Hunts of its cognizance, upon the judges who hold such court, and upon the ortlcers of the said court, respectively, with regard to the same matters and the other matters whi'^h ;or:n the subject of the present Psirt, or with regard to any other matter concerning the manner of con- ducting suits, actions or pro- f'eedings in the Circuit Court. Whatever may or must be done by the prothonotary, as re- gards i)roceedings in the Su- perior t/ourt, ma,y or must be done in like numnerby the clerk of the Circuit Court, as regards I)roceedings before the lat* n* ' ' I'tjexceptihoweverjthejuoic- ial powers conferred upon the prothonotary in the absence of a judge.— O. C. 1050, (ttn, Suj)ra, arts. 8Ji, .54 ets. 1 127. All commissioners and other persons authorized to re- ceive aflfidavits to be used in the Superior Court have also like powers with regard to the Circuit Court. —O. C. 1000. Supra, art. 25 ets. lli?«. The Circuit Court for any district is held at the same place as the Superior Court, ai».d 154 CASES SU8CEl'TIBLE OF REVIEW OR APPEAL. its jurisdiction extends over the whole district by the name of which it is designated. It cannot, however, grant more costs against a defendant than he would have had to pay if he had been sued before the Circuit Court in the county in which he resides and in which the cause of action originated, — o. c um. 1139. The Circuit Court for a countv lias jurisdiction over the whole extentof such county, even when more than one place therein is appointed for its sit- tings.— G. C. 1063. 1130. In the cases men- tioned in article 49, the defend- ant may, before pleading to the merits, evoke the suit or action, and require it to be removed to the Superior Court in the same district for hearing and judg- ment. The declaration of evocation is filed in the record, which is thereupon removed to the office of the prothonotary, and the Superior Cou»^^t determines in a summary way whetlier the evoc- ation is well founded or not. In the former case the Superior Court tries the cause and ren- ders judgment therein ; in the latter case the cause is sent back to the Circuit Court. If, in any cause susceptible of being evoked, the defendant in his defence disputes or calls in question the plaintifl"8 title to any immovable, in sucli manner as might impair or injuriously affect the rights of the plaintiti" in tlivi future, the latter may evoke the suit, and proceedings are then had as in cases of evoc- ation by the defendant. —O, C. 1058, am. iliil. AV proceedings inci- dental to an ^jxecution against movable property, whatever may be tlie amount or the valuf of ilie thing claimed, are within the jurisdiction of the owit whioii issued the writ.— O. <'. 1(K{, 11():{. 1 i:Ji3. The writ of execution against an immovable is return able to the Superior Court of the district in which the judg- ment was rendered.— O. C. U)N(i, 1102, am. li:V{. All proceedings incid- ental to the seizure or sale of immovables seized are carried on before the Superior Cour', into which the writ of execution is returnable, in the same nian- ner as if the judgment had boci! rendered by such court.— O. C. 1088, a»i. 113-1;. Upon the return into the Superior Court of a writ of execution against immovable s, granted by the Circuit Couvt, the former coni't may order thn clerk of the latter to transmit the original record in the case, that it may serve for all lej.;;il purposes.— O. C. 1090, am. CHAPTER LIII Procedure in Cases Sus- ceptible ol* Review or of Appeal 1 135. Saving the special pro- visions contained in the fori'^o- ing chapter, in all causes, mat- ters and things susceptil)k' of review or of repeal, instituted and pending in the Circuit Court, the rules governing pro- ceedings up to judgment, judg- ments therein, remedies in tlio Circuit Court against such judf; ments, the execution of sudi judgments, oppositions to s»-iz ures and sales, attachments in' fore judgment, attachments in revendication, attachments ft r rent, conservatory atcachmen is, CASES NOT SUSrEPTIRLE <>P REVIEW OR APPEAL. 155 and judicial sequestration, ex- cept tiiose relating to trial l>y jury and to abandoiuncnt of property are the same as in like matters in the Sn|)erior Court. Xcir O. C. 1059, 10(1;"). Supra, art. 55. CHAPTKH LIV. 1*1 ocedure in Cases not Susceptible oJ'ileview or of Appeal. lliJO. Saving the sr)ecial provisions of Chapter Fifty- second, a\u\ of the present Chapter, in cause.;, niattevs and things not susceptible of rev>e\v or of ayjpeal, instituted and pending in the Circuit Court, the rules governing proceedings up to judgment, judgments tliorein, remedies in the Circuit Court against such judgments, the execution of such judg- iiK'nts, oppositions to seizures and sales, attachments before judgment, attachments in re- vindication, {Attachments for rent, conservatory attachments, and judicial sequestration, ex- cept those relating to trial by jury and to abandonment of pro- perty, are the same as in like matters in cases in the Superior Court.— iA^e-T. Supra, art. 54. 1 1 .*? 7. When the writ of sum mons is addres.sed to the sherilf or a bailitr of a dist rict other than that whence it i.ssued, it may l)e served by the sherilVor any l)ailitt'of such district; but; he is entitled to no more coses than if the service had been elVected by the bailitf nearest to the residence of the defendant thus summoned. Any writ of sumniotis, of sub- piMKt, or of execution, issued out of any Circuit Court in any county, may be served or exe- cuted l)y any baililT residing in the district; l)ut such l)ailitr is entitled to no more costs than if the ser> ice had been made or the execution had been ellected by the bailitl' resi. I li:i8. If the defendant is in I default to appear or to plead, ! the plaintiff is not bound to give notice of the inscription for proof, when such proof is neccs- i sary, or of the inscrintion for j judgment— O. C^. 1099. i Supra, arts. 418, ^t s. 5:^2 et s. 1 lao. The delay for pleading to the merits is four days from th;^ appearance of the defend- ant. There is a like delay of four days between each subsequent pleading allowed by law.— O. C. 1070, am . Sii]>r(f, art. 9. Infra, arts. 1155, 115(). 1140. Immediately after is- sue joined, the case may be in- scribed by either party ifor proof and hearing. Ai tide 295 does not apply to any such inscription —O. C. 1072, am. Infra, art. 1158. 1141. Notice must be given to the opposite party at least P^i'^ rM ' ■V' {■-.lit I 15G PROCEDURE IN SUMMARY MATTERS. three days before that fixed for proof and lieariiig.— O. C'. 1(H)9. Ivj'ra, urn. 11153. Tlie proof is n)> de orally and in open conrt, with- out notes thereof beinf< taken. -O. C. 1101. 114f{. No i)erson residing at a distance of more than forty- five miles from the place where the proof is to he taken, or be- yound the limits of the circuit, is bound to attend as a witness unless he is summoned in con- formity with the provisions con- tained in articles 299 and 300. — O. C. 107(5. 1144. Issues of lawareiais- ed by demurrer ; and whenever a demurrer or an answer in law has been filed, the case may, nevertheless, be inscribed for proof and hearing, reserving the argument upon the law issues until after the proof. —O. C. 1077, am. Infra, 11.57. 1145. The judge may at any time order the proof to be had, or a witness or a party to be examined in another circuit, and may order that the record, or a part thereof, be transmitted for that purpose, according to the provisions contained in articles a.57 and Ho«.~0. C. 1078, am. 114<}. Whenever, in conse- (pience of an op])osition to the seizure or sale, an order to stay execution is necessary, it may be granted by the judge, eithci within or beyond the limits ol the circuit, or by the clerk.— (>. C. 10H4, am, 1147. In default of movabli' property, the judgment may In- executed upon such immoval)l(> of the debtor as are within the limits of the district in vvhicli the judgment was rendered, oi- in any other district. Nevertheless, saving the cases mentioned in article 1148, jud;*^ ments for sums not exeeedii.j,' forty dollars can be executed only against the movable pm perty.-O. C. 108.5, 1102. Supirt, art. 014. 1148. In the case of an im movable which is declared liy the judgment to be hypothc cated, and has been surrender ed, or in cases of arrears of rents constituted under the Seignorial Act of 18.54, whatever may lie the amount thereof, a writol execution may is.sue immedi- ately against such immovable. - Q. C. 1087, 1102, a,>,i. Supra, art. 014. 1140. All cases not susf^opt ible of review or of appeal aio determined in a summary man ner; and. when the amount claimed does not exceed twenty five dollars, they are decide*! according to e<]uity and good conscience.-— O. C. \\M. Infra, art. 12.511 S E y E NTH P A K T SUMMARY MATTERS CHAPTER LV Procedure in Suniinary Matters 1 150. The following are deemed to be summary matters, and are tried as such according to the rules set forth in this chapter : 1. Actions arising from the re- lation of lessor and lessee ; PROCEDURE IN SUMMARY MATTERS. 157 2. Actions founded on bills of exchange, pi'oniissory notes, clitHines, or orders for payment, hniis or acknowledgments of ik'bt ; :{. Actions by traders for the j)ii('e and value of goods or articles sold, work done, ma- terials furnished or moneys dis- bursed in the ordinary course of t'leir comn»ercial operations ; I. Actions l)y farmers for the pt ice of their farm ])ro(hice ; ."). Actions by advocates, not- aries and physicians to recover Slims due them for professional services ; (). Actions by i>rinters for printing, publications, or work performed by them in that ca- pacity, as well as those for the ))rice and value of subscriptions to newspapers ; 7. Actions founded upon loans of money, whether secured by li\ pothec or not ; S. Actions for salary or wages of schoolmasters, teachers, clerks, employee?, workmen and laborers, as well as actions arising from the relations be- tween servants atid their mas- ters ; !). Actions by hotel and board- iu^-house kes^pers for sums due tor board and lodging ; 10. Actions arising from the l)urchase or sale of rigging, or from fitting out a!id provision- ing vessels ; II. Actions arising from freighting, chartering and loans upon respondentia ; 12. Actions arising from en trigements or agreements for wavres and hiring of crews ; Kl Actions arising from en- gagements of seamen "for service ill merchant shipping ; 11. Actions to unseat or dis • pialify mayors, aldermen, muni- cipal councillors or school com- missioners, — New in part. O. C. SS7 ; H. S. 5977 ; 58 Vic, c. 01, s. I ; 5t Vic, c. 41, h. 4. Sxprn, art. 15, § 1, 2, 'i. 1 151. Saving the special pro- visions contained in this chap- ter, the rules governing pro- cedure in ordinary cases apply likewise to suinmary matters. —Nnr. lifS2. In the actions men- tioned in paragraph 1 of article 15l), the class of action and the .jurisdiction of the court are de- termined by the value or the amount of the rent, or the amount of the damages alleged. The lessor may .join with his action a demand for such rent as he is entitled to, with or with- out an attachment for rent, an attachment in recaption, an at- tachment before judgment in hands of the lessee or of garni- shees, or an attachm nt in re- vendication of movable pro|)erty leased.— O. C. S88, run.; U. S. 5977; C. S. L. C, c 40, s. 9. Civil Code, arts. 1024, 1025, 1041. It5:i. In the actions men- tioned in paragraph 1 of article 1150, the delay upon summons is only one intermediate day when the place of service is within a distance of fifteen miles, with an additional day for every fifty miles in addition; provided always that the delay need never exceed twenty days, whatever the distance. In other summary actions, the delay for summons is the same as i"< prescribed by article 149. — O. C. H91, am..; R. S. 5i)77. Supra, art. 9. 1 154. Notice of motions urg- ing preliminary exceptions nnist be given to the opposite party within two days from the re- turn, saving the cases mention- 158 REMEDIES AOAINST JUDGMENTS. ed by articles 177, paragraph 6, 178 and 181.— iV^jr. Supni, arts. 9, 15, § 'S, IHl et s. 1155. The defence must be llled within two lays from the return of the action. Nevertheless, whenever pre- liinirnxry exceptions have l)eeii fihuJ, this delay runs from the time of judjjjment upcn such ex- ceptions, except where it is otlierwise provided in the first section of chai)ter sixteenth of this Code.-- O. C. S!)2 : li. S. o!)77. Supra, arts. D, 15, >? IS ; 202 et s. 1150. Any other pleading? which may be necessary to com- plete the issues must be filed on the juridical day folio vin^ the tiling of the pleading; immedi- ately preceding it.— O. C. 8{)2, 3, 898, am.; R. S. 5977. Supra, arts. 9, 202 et a. 1157. The hearing upon an inscription in law can only be had upon the expiry of one day from its service upon the op- posite party. Nevertheless, in cases not sus- ceptible of review or of appeal, the case niay be inscribed for proof and hearing, reserving the argument on the law issues un- til ufterthe proof.— iVfvr. Supra, arts. 191 et s. 1144. 1 15>i. As soon as issue is joined, or judgment has been rendered on the inscription in law, if there is one, the case may be inscribed for proof and hearing.— O. C. 891, 897^^ am.: K. S. 5977. Supra, arts. 293 et s. 1140. lirSO. A notice of at least three days must be given to tlir opposite party of the day fixnl for proof and hearing. --0. C. 897rfc, am.;R. S. 5977. Supra, art. 9 1 l(l(). Judgment may be reii dered either in term or out ot term. It is executory eight days after it is rendeied. The delay for ejectment, how evei', in tlu' actions mentioiic'l in pai'agraph 1 of article 1150, i^ witnin the discretion of tlic court. -O. C. 898 : R. S. 5977. IKJl. The delays respecti III,' summons and jileadings also apply to all interventions, op positions or other incidental proceedings of the same nature. — O. C. 899 ; R. S. 5977. 1 162. The words : " summary procedure," must be written or printed at the head of each orig- inal and copy of the writ of summons issued under the ])ro visions of this chapter, which provisions must be interpreted so as not to take away the riglit of proceeding under the or(lin ary rules of procedure.- -O. ('. 899(t; R. S. 5977 ; 53 Vic, c. 01, s. 3. E I G H T 11 P A E 'r . REMEDIES AGAINST JUDGMENTS CHAPTER LVI Oppositions to Jiidgineiits 1103. Any defendant con- demned by default to appear or to plead may, if he was prevent- ed from fding his defence !•> surprise, fraud or any other cause considered snHicient i>.v the judge, obtain relief from the judgment by means of an opposition.— O. C. 48JSa, 484. Supra, art. 830. OPPOSITIONS TO JUDGMENTS. 159 1 164. The opposition nmst contain all grounds, whether in su{)p()rt of the opposition or of thti defence. — O. C. 4Ho, am.; \!>Mi, in part. 1105. The opposition must 1)1' accompanied witli an alli- (lavit that the facts tlierein con- tained are, to the deponent's knowledge, true. — O. C. 48(3, See Form, Sched. CC, Appen- (lie. 1100. The opposition must be made within fifteen days after service of the judgment : or, if there is no such service, it must V)e made either before the sale under the seizure, or with- in ten days from a return of nulla bona, or within ten days from the service upon the de- ftndant of any seizure by gar- nishment issued by virtue of such judgment.— O. C. 484, atn. 1167. Notwithstanding the expiry of the above delays, the defendant may be allowed to make opposition, upon estab- lishing th.it, owing to absence, severe illness or other circum- stances of irresistible force, he was prevented from learning of the action or of the judgment, or from making opposition with- in t he prescribed delays. In such case, however, the op- position does not lie whenever, after the hindrance ceases or knowledge is obtained of the ac- tion or of the judgment or of proceedings in execution, the defendant, if he is present in the Province, fails to make op- position v^'ithin a delay of lifteen days, or, if he is alfjsent there- from, within such delay as is considered necessary according to the distance.— iV«M7. C. P. G. 138. mx 1168. The opposition is tiled in the ottice of the court, but it is without effect, and cannot be received by the prothonotary un- less it is accompanied with an order of the judge allowing it to be iiled.— O. C. 487, 48ikfc. 1 16». The defendant must deposit in the ofliceof the court a sum surtlcient to meet the costs incurred after the return of the writ up to the judginent, and the service thereof. Such sum is paid to the party indicated by the judgment on the opposition.— O. C. 48(i, am. \ 1170. Within three days I after tiling the opposition, tlie I defendant must, on piin of I nullity, serve a copy thereof, to- gether with a copy of the certifi- cate of tiling, either upon the parties in the cause, or, if the opposition is made within a year and a day after the judg- ment, upon their attorneys. — O. C. m), am. 1171. If the opposition is made after the issue of a writ of execution, a copy of the certi^- cate of the filing of the opposi- tion is served upon the officer charged with the writ.— O. C. 4S8, am.. 1172. The service of the op- position and certificate has the effect of staying the execution or of suspending the sale under the seizure until final judgment on the opposition. In the case provided for l)y the preceding article, the officer must, immediately after service of the certificate of the filing of the opposition, return into the office of the court the writ of execution and the certificate served upon him.— O. C. 488, am. 1178, The opposition forms l)art of the proceedings in the original suit, and is a defence to the action. It is subject to the same rules and delays as such action. The delays for con- .m^ 160 rSTITlONS IN REVOCATION OB^ JUDGMENT. ■I'll' , V *4: ■fll--^ *l^ rl' 'i:' ;'1' 4' ' i(. :&': II ■ •- :■«: #■ \-:!i-. tcstiiiR the opposition are com- pu*^cd from its service. — JVeiv in part, O. C. 4H<), 4!K). 1174. A party must bear all costs incurred by reason of his own default, whatever juc'"- numt be rendered on the oppo. - r\on. New, C. P. G. 145, s. 1. CHAPTER LVII PetitioiiH ill licvi.sion. 1 175. Whenever the defend- ant has not been served person- ally orat his real domicile, or ordinary and actual place of residence or of business, he may apply by petition, within a year and a (lay, for tlie revision of any judgment rendered against him by default.— O. C. i^i, am. 1 170. The petition in revision is governed, in so far as may be, by the rules contained in articles ll04, nr)5, 11«7, 1108, 1170, 1171, 1172, 1173 and llli.—New. CHAPTER LVIII Petitions in Ilevocation of Judgfiiieiit 1177. .Judgments which are not susceptible of being appeal- ed from or opposed, or against which adequate relief cannot be obtained by means of appeal or opposition, may be revoked upon a petition presented to the same court by any person who was a jarty or was summone', C. P. C. F. 483. 117». Wher) the petition in revocation is baaed upon the falsity of documents, fraud or the discovery of docunuiits withheld or concealed, or of any REVIEW BEFORE THREE JUDGES. 161 it (le- ,e(l for b is fur nt nas \y part l\t lias iiinents jueutly jilst',(>r ten tier erjud'j; other new evidence, the delays run only from the date when such falsity or fraud is ascer- t.iined, or such documents or .•\ idence are discovered.— AVjr in part, O. C. .50(i, C. P. C. F. 4SH; Ord. IGiYl, tit. :i5, art. 12. 1180. ./hen the petition in revocation is based upon any unautliorized tender or consent, the delay runs from the render- inPEAT,8 TO COURT OF QUEEN'S BENCH- 165 iiMuicrcd bv drfuiilt, the dolay Ih ( omputed only fioni the expiry of tlie time allowed for (llinji; an m,*artH. IIJXJ, 1199. 1211. If the aj)peal is from an interlocutory judgment, it must first be allowed l)y one of the judges of the Court of Queen's Bench, upon a sum- mary petition, accompanied with copies of such portions of the record as may be necessary to decide whether the judgment ill question is susceptible of ap- peal, and fails within one of the cases specified in article 40 ; but the judge before whom such ap- plication is made may, if he deems it advisable, refer it to the court then sitting, if the ap- plication is made during term, or may continue it to the first day of the next term, if it is made out of term. The application must be made within the thirty days next after such renderingof the judg- ment, and cannot be received aft^erwards.— O. C. 1119 ; 54 Vic, c. 48; 56 Vic, c. 42, s. 1. Supra, art. 46; infra, art. 1225. 1212. The petition must be served upon the opposite party, and, if rec^uired, is followed by a rule calhng upon such oppos- ite party to give his reasons against the granting of the ap- peal ; and the service of such rule upon him has the efTect of susptMidIng all proceedings b*^- fore the court from which the ajipeal is taken. -O. C. 1120; 54 Vic, c 48. 12i;i. Proct'etlings in appeal are brought by means of an in- scription tiled i!i theofiiceof the court which rendered the judg- ment, of which notice must be served upon the opposite party or his attorney. The inscription must contain a description of the parties, the [ date of the judgment appealed i from, a description of the sure- ties proposed, and a notice of the date, hour and place when and where the sureties are to appear to sign the bond. buch security must be given within five days a'ter the in- scription is so filed, or within such further delay as a judge of the court which rendered the judgment may order. If security is not given within the prescribed delays, the op- posite party may obtain from the prothonotary a certificate of default, and the inscription in appeal is thereupon held to be abandoned and of no etlect, sav- ing any recourse which may ap- pertain to the appealing party. The costs incurred upon the proceeding so abandoned are taxed by the prothonotary. — New in part. O. C. 1121; 54^10., c 48. Supra, arts. 493, 5()0. 1214. On the day fixed in the notice, the appellant must give good and sufficient security that he will effectually prosecute the appeal, that he Will satisfy the condemnation and pay all costs and damages adjudged in case the judgment appealed from is confirmed ; or else he must declare in writing in the office of the court whose judg- ■■/■ 166 APPEALS TO COURT OF 'iUEEN 8 BENCH. mont is appealed froDi, that he dops not object to the jud;jcnu!nt rendered against himbein^ exe- cuted, or he nnist Hie a copy of any judj^nient ordering provi- sional execution of the judg- ment appealed from, in which cases he is only bound to give security for the payment of the costs in appeal, if he fails ; &nd, if tlie judgment is reversed, the respondent who has caused the iudgment to be executed is bound to refund i,o the appellant the nat amount only of the moneys levied by execution, to- gether with legal interest, or to restore the property of which he was put in possession, to- gether with the rents, issues and profits since.--C. C 1122, (OH.; 54 Vic, c. 48. Supra, arts. 597, 9(39. 1215. The security must be received before a judge or the prothonotary of the court in which the judgment was ren- dered, who may swear the sure- ties ottered, and ask them any pertinent questions with respect to their surticiencv.~C. C. 1123 ; 54 Vic, c. 48. Supra, art. 5(31 et s. Civil Code, arts. 1988 et s., 19G2 et s. 1210. When the security- bond has been executed, the prothonotary must forthwith transmit a certified copy of such bond and of the inscription to the clerk of appeals at Quebec or at Montreal, as the case may re- quire. He must also forthwith make up and complete the record in the case, according to the forms prescribed by the court of ap- peal, with a list of all the papers which form part of it and a transcript of all the entries in the registers, the whole certi- fied under the signature And the seal of the court, and, upon being paid his fees, charges ami the cost of transmission, must remit them to the clerk of ap peals. The clerk of appeals, upon re cei ving such records and papers, must send a receipt therefor to the prothonotary. — New In pui f. O. C. 1124, am.; 54 Vic. o. 48. Supra, art. 3147. 1217. If the copies of the in- scription and boiul ire not forth with transmitted, or if the re cord is not Li'ansmitted witliin llfteen days after the boiul luis been executed, and the p.o thoilptary is in default, the a[)- pellant may obtain, from an\ judge of the court which ren dercd the judgment, a rule against him to transmit sueli documents or record. — O. ('. 1125, am.; 54 Vic, c. 48. 1218. At any time after se- curity has been given, and be- fore the expiry of five days after the record luis been received by the clerk of appeals, the appel- lant and the respondent musi each file a written appearance in the office of the court of appeal, under penalty of being fore closed.- O. C. 112o, am.; 54 Vie., c 48. 1219. In default of the record beingtransmitted within fifteen days after the bond has bt-en execu^/cd, the respondent may, upon producing a certificare from theclerkof appeals to tliat eflfect, --^tain a judgment dis charging the appeals, unless the appellant proves diligence.- 0. C. 1127 ; 54 Vic. c 48, 12SO. Unless theccurt oth r wise orders, the respondent may, within eight days next after the period allowed to ap- pear, set up by motion any ex ception resulting from : 1. Irregularities in the inscrip 'C! APPEALS TO COURT OF QUEEN S BENCH. 167 tion or in the service of the no- tice thereof ; ± Insul!lcienev of tlie security- bond ; :^ Non-existence or forefei- ture of the rif^ht to appeal •, •t. Acquiescence in the judg- ment ; 5. Renunciation of the judg- ment.— O. C. 1128. atn.; 54 Vic, c. 4S. 1*221. The court of appeal during term, or any jtidge there- of, out of term, has power to re- duce excessive securiry, or to order new security to be given in i)lace of any which has be- come insufticient.— O. C. 1129, (on.; 54 Vic. c 48. hifra, art. 1248. CfvU Code, art. 1940. 1222. If both parties seek redress against the judgment, tlieir cross-proceedings in ap- peal may be joined. — O. C. 1180, (tin. : 54 Vic, c 48. 1223. Within fifteen days lifter tlie judgment upon an ex- ception, if there is any, to the proceedings in appeal, or within rtfteen days after the expiry of the delay for filing ♦^he appear- ance, each party mus*: file, with the clerk of appeals, a printed factum or case ; in default whereof the appeal may be de- clared abandoned, with costs against the appellant, if he is in default, or be heard e.v jicirte, if the respoiident is in default.— 0. C. li:n, am. ; 54 Vic, c 48. 1224. As soon as the partie> have filed their appearances, or after the delay to tile the same has expired, if only one party has appeared, and the record has been received by the court of appeal, the case is sec down upon tlie roll by the clerk of appeals, and is heard in its turn in accordance with the rules of practice and orders of the court ; but the parties are not bound to be present in court before the expiry of the delays mentioned in the preceding a''ticle.— O.C. li:^2, 1169. am.. ; 54 Vic, c.48; 58 Vic, c 47, ss. 2, 'S. 1225. Appeals from interlo- cutory judgments must be in- scribed by the clerk of appeals, and l)e heard by privilege in a summary manner without any factums being filed. —O. C. 1131^ ; 54 Vic,c. 48. Suvra. arts. 40. 1112, 1211, 1212. 1220. Articles 1193, 1194 and 1195 apply to proceedings in ap- peal.— O. C. 1154, 1155, a)n. Supra, art. 1209. 1227. Four judges of the Court of Queen's Bench con- stitutes a quorum in appeal. Any lesser number of judges, or even the clerk in the absence of all the judges, may, on any day in term, open and adjourn the court, receive returns and motions of course, call parties, record appearances and defaults, and do all acts which do not re- ouire the exercise of any judicial discretion.— O. C. 1150, tnu. 1228. The judges in appeal may be recused for the same causes and in the same manner as in the Superior Court.— O. C. 1157, am. \ Sajwa, art. 237 et s. i 1 220. Any judge who sat at the rendering of the final judg:- I ment in the cause, or of any iri- ' terlocutory judgment appealed from, is incompetent to sit in appeal upon the same.— O. C. I llo8, am. i Supra, art. 1190. 12;S0. No petition in recusa- tvon is necessary if the cause of incompetency appears on the face of the record.— O. C. 1159. 1231. The Chief Justice, or, in his absence, the senior judge :^ i *,♦'■ 168 APPEALS TO COURT OF QUEEN's BENCH. of the Court of Queen's Bench, may, by notice in writing ad- dressed totbeChief Justice of the Superior Court, request tiie at- tendance of a. judge of the latter court at the sittings of the court of appeal, in the following cases : 1. When one or more judges of the Court of Queen's Bench is disqualified or incompetent to sit in a case, or is absent from the Province or on leave, or is ill, or dies ; 2. When only four judges are available for the hearing of any case ; li. When a rehearing of a case has become necessary because of its having been heard l)y four judges only, three of whom are not agreed as to the judgment to be rendered.— O. C. 1161, am.; R. S. 2302, 2303. 1232. In all such cases, the judges of the Superior Court re- place those of the Court oi Appeal ; and the Chief Justice of the Superior Court communi- cates with the other judges of the latter court, and it is ar- ranged between them which of them will replace any partieulai judge of the Court of Queen's Bench who is unable to sit.— O. C. 1162. 1233. The provisions of the two p *eceding articles apply likewise in the cases of the disqualification, incompetencv, death, absence, leave of ab- sence or illness, of the judge thus appointed to replace an- other. -O, C. 1162, am. 123-1^. The powers of the re- placing judge in regard to causes, of which he has taken judicial cognizance, are not aflected bv the return of the judge replaced, the expiry of his leave, or his ceasing to be incompetent, or by the appoint- 1 ment of a judge of the Court of Queen's Bench who would not be incompetent in the case.--(). C. 1163. 1235.— Nevertheless, if the replacing judge has not heard the case upon the merits, the judge thus replaced may tal-M cognizance of the case and reii der judgment therein.— O. ( . 1164. 1236. If the record in the case is incomplete, either by reason of the absence of any document, or of the inobser\- ance of tiny material fornnili ties, the court of appeal may, upon the suggestion of eitlicr party, order a writ to issue in the name of the Sovereign, ad dressed to the proper court, re quiring it to perfect the record, and to cause a duly certified re turn to be made to that e fleet. -O. C. llGo. Infra, art. 1248. 1237. Interventions, con- tinuance of suits, changes of attorney and other incidental proceedings take place in jip peal, upon petition, accordin;j; to the formalities prescribed \>\ the court.— O. C. 1166, am. Supra, arts. 220, 250, 2m et. s. 1238. Discontinuance and disavowal in appeal are aftecti I' no APPEALS TO HER MAJESTY. I half has the same effect aH a ' judgment of the court.— O. C. 1175. Su2>ra, art. 554. 1217. .Judgments in appeal ; are executed both for pr' icipal ; and costs by the court of Hrst instance ; and, for that purpose, \ the record is sent baclc to it, un- less a further appeal to a higher court has been moved for.— O. C. 1176. 1248. The court sitting in appeal may exercise all the powers necessary for such juris- diction, and make such orders ; as it may deem proper for the purpose of remedying any in- sufriciencies of the record, of staying proceedings in the court of first instance in cases ap- pealed from, of regulating the putting in or renewal of se- curity, and of providing for all cases in which the law affords the party no special remedy. It may also make and estab- lish tariffs for any of its ofHcers whose fees or salaries are not otherwise fixed- — O. C. 1177, am. Supra, arts. 597, 1221, 1236. CHAPTER LXII Appeals to Her Majesty 1240. The execution of a judgment from which an appeal is taken to Her Majesty in Her Privy Council cannot be pre- vented or stayed unless the party aggrieved gives good and sufficient sureties within the delay fixed by the court which rendered the judgment, that he will effectually prosecute the appeal, satisfy the condemna- tion, and pay such costs and damages as may be awarded by Her Majesty in the event of the judgment being confirmed. The security must be received before one of the judges of tlic court which rendered the ju(l<; ment. The sureties justify their sol vency upon the real estate which is described in the bail bond. One surety sufYices, if he is the owner of real estate, whirh he describes, equp.l in value io the amount of the security over and above all charges and hy- pothecs. The judge who receives such .security may order, f ither on do niand or otherwise, the prodnc tion of the registrar's certili cate, the valuation rolls and any other documents for the pur poses of the security, and is bound to put such questions as he deems advise ble to the sure ties. Such questions and the answers thereto may be taken down in writing. The appellant may, however, exempt him.self from furnishing such security, by depositing an amount equal to that required for the security, either in money, in bonds of the Domin- ion or of this Province, or in municipal debentures, and such moneys, bonds or debentures are deposited either in theoflice of the court w'hich rendered the judgment or with the sheriff, as the judge may direct.— O. C. 1179, 1178a., am.; R. S. 6009, mW. Supra, arts. 68, 69, 559 et s. Ciril (^ocle, arts. 1938 et s,, . 1962 et s. 1250. The appellant may \ also consent to the judgnitMit being executed, and in such case may give security for the : costs in appeal only, under the ! same conditions as under article 1214.— O. C. 1180. 1251. The execution of any i judgment appealed from cannot PROCEDURE BEFORE COMMISSIONERS' COURT. 171 be prevented or stayed after six months from llu^ day on which the appeal was allowed, unless the appellant files in the office of the clerk of the court which rendered the judgment a certi- ticate, signed by the clerk of Her Majesty's Privy Council, or r.iiy other competent officer, stating that the appeal has been lodged within such delay, and that proceedings have be«m I:ad therein.— O. C. IIHI, 1178^^ avi.; R. S 6009. 1232. The clerk of the court which rendered the judgment must register any exemplifica- tion of a decree of Her Majesty in Her Privy Council as soon as it is presented to him for that purpose, without requiring any order to that effect from the court which rendered the judg- ment, and must send V)ack the record in the case to the court below, together with a copy of the exemplification which haa been registered as above men- tioned.— O. C. 1181', 1178a, atn.; R. S. 0009. ni:n"tii part. INFERIOR JURISDICTIONS CHAPTER LXIII Procedure Before the Com- mi Nsi oners' Court for the Buniniary Tr'al of Small Causes 1253. The commissioners cannot sit and hold their court separately and at the same time in the same locality. The court may be held by one commissioner, and several or oil the connnissiouers may likewise sit together. They must decide according to equity and good conscience and ir the best of their ability and judgment.— O. C. 1183. ^a2)ra, arts. 15, § 10, 59, 00, 1254. The commissioners have for keeping order during their sittings, and for enforcins'- the execution of their warrants, orders and judgments, the same powers as the other courts of the Province.— O. C. 1184. Supra, art. 17 et s. 1255. They may be recused for the same reasons as judges or other courts.— O. C. 1185. Supra, arts. 2iil, 238. 1256. The recusation must be in writing.— O. C. 1186. 1257. If jtll ohe commission- ers are recused by either of the parties, the case is immediately transmitted to the nearest Commissioners' Court, which decides upon the validity of the recusation, and afterwards hears and determines the merits of the case in the event only of the recusation being main- tained. But, if the recusation is over- ruled, the case is sent back to the former court, which may, without reference to the merits, tax the costs of such recusation against the party who made it. — O. C. 1187. Supra, art. 31, 245, 248. fen aaiv 172 PROCEDURE BEFORE COMMISSIONERS' COURT. W^ 1258. It may, in mutters within its jurisdiction, grant: Interventions ; Attachments for rent ; Attachments in rev^endica- tion ; Seizures by garnishment after judgment ; Simple attachments or at- tachments by garnisliment be- fore judgment, for sums exceed- ing Ave dollars, whenever it is establislied by the aflH(hivit of the plaintiff or of liis agent that the defendant is secreting, has secreted, or is immediately a- bout to secrete his property, or absconds, or is immediately a bout to leave the Province with iiitent to defraud his creditors. Such affidavit maybe received by one of the commissioners or by the clerk of the court,— O. C. 1191, 1192, am. Supra, art. 9'U. 1*259. These proceedings may be executed beyond the limitir' of the judicial district in which they are issued, provided an order of one of the commiss- ioners, authorizing such exe- cution within the district where it reouires to be executed, is endorsed upon the warrant. Every warrant of attachment i for rent, attachment in revendi- '\ cation, seizure after judgment, I simple attachment, or attach- I ment by garnishment, must be niade returnable in the manner prescribed by article 1264, and the return with a certificate of the proceedings must be made on the day so fixed.— O. C. 1192. 1260. In the case of attach- ment by garnishment before judgment, or of seizure after judgment, the garnishee, with- in two days after the writ has been served upon him, may make his declaration under oath before the clerk of the Circuit Court nearest to the place where the writ was serv ed 'ipon him. O. C. 1192«, «;/(.; R. s. mvi. Infra, art. 12HH. 1201. Such clerk is author ized to administer the oath re nuired, and must, after having drawn up and received th^ dc claration of the garnishee, for ward the .same without delay by a registered letter to the clerk of the Commissioners" Court where the cause is pend ing. He is entitled to a fee of one dollar, pa>able by the garni shee for dr?ivving up, receivini: and forwarding the declaration as required, and, on the pay ment of such f*' -., he prepares a receipt which he forwards with the declaratioi) of the garni shee.— O. C. \\mb ; R. S. 6012. Infra., art. 1288. 1262. Such tjuni of one dol- lar is taxed by the commission- ers or by their clerk as an in tegral 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 gar- nishee against the seizing credi tor, and may be executed by seizure after the same delay and in the same manner as any other judgMient of such court. -O. C. 1192r;R. S. 6012. Infra, arts. 1281, 1289. 1263. Any minor above the age of fourteen years may bring a suit before a Commis- sioners' Court for the recovery of wages or salary in the sanie manner as if he was of age.— O. C. 1193. Supra, arts. 78, 81. Civil Code, art. 304. 1264. The delay upon ordin- ary summons must be at least PROCEDURE BEB^ORE COMMISSIONERS* COURT. 173 three clear days when the de- fendant does not reside more than six miles from the place to which he is summoned. When the distance exceeds six miles, the delay is increased one day for each additional six miles.— O. C. 1194, am. 1265. The writ of summons contains : A command to the defendant to pay the plaintill'the amount demanded or to appear before the court to answer siich de- mand ; The names, residence and oc- cupation, both of the plaintiff ftp.d of the defendant ; A summary statement of the cause of action ; The day on which the defen- dant must appear ; The date of the writ ; The signature of the commis- sioner. — O. C. 1195. 1206. Ordinary writs of sum- mons may be served by any bailifT of the Superior Court, or by any literate person, who makes affidavit as to such ser- vice.— O. C. 1196, am. 1207. If the summons is accompanied with an attach- ment, it can only \>e served by abailiff.-O. C. 1197. 1268. Either party may evoke the case to the Circuit Court Tor the district when the contestation relates : To any immovable rights ; To any fee of office ; To any sum of money due to the Crown ; To any duty, rents, revenue or annual rent, or other matter by which rights in future may be bouhd.— O. C. 1198, am. Supra, art. 56. 1260. The improbation of anv act or document produced before the court has the effect of an evocation to the Circuit Cor.rt.— O. C. 1199, am. 1270. In the cases of the two preceding articles, the cojnmis- sioner, or one of the commis- sioners, or the clerk, must, with- in fifteen days, transmit the re- cord to the Circuit Couvt, to- gether with a certified tran- script of the entries in the regis- ter concerning the same. Nevertheless, in case of im- probation, the record cannot be transmitted unless the party alleging the falsity gives sufti- cient security for the costs to be incurred upon su';b improba- tion.— O. C. 1200. am. Supi'a, art. 81. 1271. In default of such se- curity being given within the delay fixed bv the court, the party forfeits his right of evoca- tion, and the Commissioners' Court may proceed to hear and determine the case without re- gard to the improbation.— O. C. 1201. 1272. If the evocation is al- lowed, the case is heard and de- termined by the court to which it is evokefl as if it had originat- ed therein. -O. C. 1202. 1278. No person can act as attorney for either of the parties before a Commissioners' Court, uiJess he is an advocate or at- torney at law, or the holder of a special power of attorney, or un- less it is in the presence and with the consent of the party. No clerk of the court or bailiff can in any case act as such at- torney.— 6. C. 1208, 1205, am. Supra, ai t. 8ii. 1274. Any person other than an advocate or attorney at law, who acts for one of the parties, must do so gratuitously. If such person for so acting re- ceives, either directly or indi- rectly, aimyifee, emolument or ■m ,,j-,t 174 PROCEDURE BEFORE COMMISSIONERS' COURT. remuneration whatever, he be- comes disqualified from acting as atcorney before a Commis siouers' Court, without preju- dice to the ritrht of the party who has paid to sue for repay- ment.— O. C. 1204, am. 1275. If the defendant has been served personally and makes default, or if he confesses judgment, or if the parties agree to it, the case may be heard on the day of the return, and judg- ment may be rendered. In any other case the suit must be postponed to a subse- (juent day for trial.— O. C. 1206, (im. 1276. By conaeiit of the par ties 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 dis- cretion, order .such reference. The arbitrators, before acting, must be sworn before one of the commissioners or before a jus- tice of the peace, to fulfil 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 peace. The decision of two of the ar- bitrators is final, and must be homologated and executed ac- cordingly.— O. C. 1207. Supra, arts. 411 et s. 417. 1277. The cases are heard, tried and determined in a sum- mary manner, withoutany writ- ten pleadings being necessary. -C. C. 1208. 1278. Oral testimony is ad- njitted in all cases. But the bailitr or other person who served the writ of sum- mons cannot testify to any facts or admissions which came to his knowledge after the issue of the writ of summons, except in re- lation to the service itself. — O. C. 1209, am. Supra, art. .320. 1270. Upon the application of either of the parties, the court may compel any person residing' within its jurisdiction to attend as a witness in any case, under a penalty of not less »han one dollar or more than four dollars. — O. C. 1210. am. 12MO. The court, in render ing judgment, may condemn th(? unsuccessful party to the costs of suit, of contestation and of arbitration. But if the amount of the judj? men does not exceed two dol lars. the court may reduce the costs to the same amount us that for which judgment is ren dered.— O. C. 1211. 12H1. If the- debtor fails to satisfy the amount of the con demnation against him within eight days, he may be compelled to do so by the sei^iure and sale of his movable property liable to seizure. 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 th;in seventy-five cents of costs. These costs do not in any case include the expense of feeding cattle, if .any have been seized. The warmntof execution must be made returnable and be re- turned in the same way as the other warrants mentioned in article 1259.— O. C. 1212 : 53 Vjc, c. 02, s. 2. Supra, arts. 598, 599. 1282. No opposition to t!ie sale of movables under seizure can stay proceedings unless it is allowed by a commissioner atul accompanied with an order to thateffect.— O. C. 1213. 1283. Oppositions thus ul- PROCEDURE BEFORE DISTRICT MAOISTRATE's COURT. 175 lowed are heard and determin- ed in the same manner as other cases before the court,— O. C. 1214. CHAPTER LXIV Procedure Before the Dis- trict Magi(»trate'H Court 1284. All proceedings in and the proof and hearing of the actions mentioned in article 02 take place in a summary man- ner and on any juridical day, whether fixed or not as one of the days on which the court can sit..— O. C. 1215/^; R. S. 6013. 1285. Except in so far as tiiey are inconsistent with the rules contained in this Chapter, the provisions relating to cases in the Circuit Court, not sus- ceptible of review or of appeal, apply to the District Magis- trate's Court, to the Magistrate holding it, and to the officers thereof. — O. C. 12iot', arti. ; R. S. 0013. 1286. Articles 1203, 1204 and 1265 (except the words : " the signature of the commissioner,'' in the three lasr mentioned articles), 1273, 1274, 1275, 1276, 1277, 1278 and 1280, and the first and last paragraphs of article 1281 apply to every Magistrate's Court in the same manner as if the words : " Commissioners' Court, "commissioner" or *' commissioners," meant and included respectively the words: '* Magistrate's Court," or "dis- trict magistrate."— O. C. 1215f/, am. ; R. S. 0013. 1287. All writs issuing from the court are signed by the dis- trict magistrate or by the clerk of the court ; and all certificates or copies of proceedings of the court signed bj' the clerk are prima Jade evidence of their contents.— O. C. 1215«; R. S. 0013. 1288. Attachments for rent, attachments in revendication, seizures by garnishment after judgment, simple attachments or attachments by garnishments before judgment, may be exe- cuted anywhere within this Province ; but in the case of seizures by garnishment, either before or after judgnjent, the garnishee may, within three ays after the service of the writ upon him, make his de- claration on oath before the clerk of the nearest Circuit Court, who has power to admin- ister such oath, and is entitled to ceive from such garnishee the sum of one dollar for taking such declaration. He must transmit the same forthwith by post, in a registered letter, to the clerk of the Magistrate's Court from which the writ of attachment issued, together with his receipt for the said sum of one dollar.— O. C. 1215/, am. ; R. S. 0013. Supra, arts. 1200, 1289. The said dollar is taxed by magistrate or !'ie court, as forming costs of the suit ; ceipt of the clerk of the Circuit Court for the said sum, trans- mitted to the clerk of the Magis- trate's Court, stands as a j udg- mentof the said court in favour of the garnishee against the party seizing, and may be en- forced by execution after the same delay and in the same manner as any other judgment of the court.— O. C. 12157 ; R. S. 6013. Supra, art. 1262. 1200. No suits or proceed- ings in civil matters before any such district magistrate, or be- 1201. sum of one the district (;lerk of the part of the and the re- i 1 Ml i. .1 176 REMEDIES AGAINST PROCEEDINGS AND JUDGMENTS. fore a Magistrate's Court, under this Chapter, can be removed to "J. certiorari 1215A : R any other court, or otherwise. -O s. m\:\. liSOl. JudKnients rendered by the Magistrate's Court for sums exceeding forty dollars may, in default of movable pro- perty, be executed upon the im- movables of the debtor. The writ is addressed to tlie sheriff of the district in which the imni )vaV)les are situated, is returnable before the Superior Court of such district, and is there proceeded upon in the same manner as like writs issu- ing from the Circuit Court.— O. C. 1215/; R. S. OOi:}. Sujiva, arts. 614, 1132, 1133, ll.'H, 1147. CHAPTER LXV Heiiiedies Against the Pro- ceeclinfi^8 and Judg^iiionts of Courts <>!' Inferior Jurisdiction. 1202. In all cases where no appeal is given from the inferior courts mentioned in articles 59, 63, 64 and 65, the case may be evoked before judgment, or the judgment may be revised h^ means of a writ of certiorari, unless this remedy is also taken away by law.— O. C. 1220. Supra, art. 1290. 1203. The remedy lies never- theless, only in the following cases : 1. When there is want or ex- cess of jurisdiction ; 2. When the regulations upon wiiich a complaint is brought, or the judgment rendered, are null or of no effect ; 3. When the proceedings con- tain gross irregularities, and there is reason to believe that justice has not been or will nor bedone.— O. C. 1221. 1294. The writ of certioi'ari can only be granted upon peti tion, supported by an aftlmivit of the facts and circumstances of the case.— O. C. 1222. l^ttR. A previous notice of time and place at which the Eetition will be presented must e served upon the functionary seized of the case, or who rcn dered the judgment, as well as upon the other parties in the case. — O. C. 1223, a»j. 1200. The service of sucli notice on the functionax'y seized of the case, or who rendered tlie judgment, has the effect of sus pending all proceedings in tiie court below.— O.C. 1224, ain. 1207. The petition must be presented to a judge of the S" perior Court or of the Circuit Court. The opposite party is entitled to appear and make any oral ol»- jections of a nature to prevent the granting of the writ.— O. ('. 1225, am. Supra, art. 57. 1208. Writs of certiorari mc clothed with the formalities re- quired for writs of summons, and command the functionary to wliom they are addressed to certify and transmit, within a fixed delay, all the papers con- nected with the case, by what" ever names the parties may l)e therein designated. — O. C. 122(5, avi. 1200. Mention must be made on the back of the writ that it has issued by order of the court orjudge.-O. C. 1227. 1300. The writ is served upon and left with the function- ary to whom it is addressed ; and, if it is addressed to a court composed of several function- aries, it is left with one of them. TS. NON-CONTENTIOUS PROfEEDINOS. 177 II not oruri peti Idavit anccs ice of h tlic . nnist ioniiry o reii- vell as in the Such service suspends all pro- ceedings before theni under pain of being liable for contempt of court. The return of such service is made upon a certified copy of the writ.— O. C. 122H. 1:{(>1. The persons to whom tiic writ is addressed are bound to comply with it by annexing to it all the papers demanded, and certifying thei** return on the back of the writ.— O. C. i 1229. ' i:i<)2. If they fail to comply! with the writ they are liable to | coercive iinprisonment in the ; ordinary manner.— O. C. VM\. j Snpya, art. 834. i 1303. Notice of the issue of I the writ and of the day fixed for its return must be given to the opposite party. —iVf jr. 1304. If the opposite party has not already appeared and tiled an appearance in r.he or- dinary form, he may do so im- mediately after the writ is regu- larly returned ; and thereupon the case may be inscribed on the roll by either party, to be heard in the ordinary nmnner.— O. C. 1231. 13(>n. All interlocutory or final judgments upon writs of certiorari are drawn up and served in the same manner as in ordinary suits. O. C. 1232. Suprft, art. 547. 130«. No appeal lies from the judgment on the application for the writ of certiorari or from the judgment on tiie w^it itself ; nor are such Judgnicnts subject to review. -O. C. 12:34. Supra, art. 43, §1. 1307. The procedure regulat- ed by this chapter applies also to all other cases in which the writ of certiorari will lie, and against any other inferior court not referred to by article 1292 ; but it does not ai)ply with res- pect to any court exercising vice- admiralty jurisdiction, over which the Sunerior Court or the Circuit Court has no con- trol.— O. C. 12:^, am. . I (» , ■/. TENTH PART NON-CONTEN x^IOUS PROCEEDINGS CHAPTER LXVI General Provisions 1308. In all proceedings under the jirovisions of the Tenth Part of this Code, the delays upon summons are the same as those prescrilied for or- dinary matters.— O. C. 1337, ((ni. Supra, art. 149. 1300. All applications made or proceedings brov-ght before a .judge must remain among the records of the court and form part thereof.— O. C. 1338. 13 lO. The prothonotary of the Superior Court may exercise all the powers conferred upon the court or a judge thereof ; but any decision by such pro- thonotary is sulr^ct to be re- vised by a judge uj)on applica- tion V)eing made to that effect, after notice given to the persons interested.— O. C. 1339. Sujyra, art. 52, § 2. 12 fci^i, !■■' ■ i 178 IlF,ni8TEH8 AND THErit AUTHENTICATION. CHAFTKRLXVIl m I lloftiHterN and Tf eAr Auth- oiitioatio 1 8ECTir)N I I. Rk(jistek8 ok Civil Status 1:111. II. RK(iISTKKS OK RKCISTUY Okkickh 1JI17. III. Re(}ihteuh ok Sukkifks AND COUONKIIS 1;J1H. Reffisterti of Civil Stalun 131 1. All registers intended to record birtliH, nmrriuKeR and deaths or relij. Notaries are bound, upon payment of their lawful fees and dues, and without any judge's order, to give communi- cation or copies of or extracts from any act or document form- ing part of their oft^cial records, to the parties or to their heirs or legal representatives.— O. C. 124.5. 1321. They are not bound to give such corfimunication, copies or extracts to other par- ties without an order from a judge, unless it is of such a na- ture that it should be register- ed. -O. C. 124G. 1322. If the notary refuses to give such communication, copies or extracts, as required, the person demanding the samt; may, by petition duly served upon the notary, apply to a judge for an order for inspec- tion, which is granted upon proof of his right or interest. — (). C. 1247. Supra, art. 1308. 1323. If communication only is demanded, the order fixes the day and hour when com- munication of the act must be given. 180 FAMILY COUNCILS. If a copy or extract is de- f manded, the order fixes the time at which it must be fur- nished.-O. C. 1248. 1324. The service of the order of the judge upon the notary must give a suttlcient delay for a compliance with such order. -O. C. 1249. 1325. The copy or extract must be certified to have been delivered in compliance with the order ; and the notary men- tions the fact at the toot of the copy of the order that was left withhim.-O. C. 1250. 1326. If the notary fails to comply with the order of the judge, he is liable for all con- sequent damages, and to coer- cive imprisonment. — O. C. 1251. Supra, art. 8J34. 1327. When the original of any authentic act or of a public register has been lost, tiestroyed or carried away, and any au- thentic copy or extract tliereof exists, the holder of such copy or extract may apply to the judge for leave to deposit the same with such public officer as the judge vvillname, to be there used and considered as an original, the copies of which will be deemed authentic. — O. C. 1252. Civil Code, art. 1217. 1328. A similar application may be made by any party to a deed, in order to compel any other party thereto, who is in possession of an pn^hentic copy or extract thereof, to deposit such copy or extract for the same purpose. The party so in possession must comply with the order of the judge in that behalf, under pain of all damages. The party retiuiring such de- posit must bear the costs and expenses so incurred, and is obliged to furnish the other party with a copy of the deed and to indemnify him for all travelling and other expenses. -O. C. 1253, am. Civil Code, art. 1217. 1320. The petition must l)o served upon all other interested parties mentioned in the act. - C.C. 1254. Suptd, art. 1808. 1330. Upon s a t i s f {.ctory proof, the judge orders the docu- ment produced to be deposited in the prothonotary's or notary's oifice, or other public oflice 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 practi(>e, then in the place in which the records of such notary are de- posited ; and every copy of the document thus deposited avails for proof in the same manner as if such document was the oii ginal.— O. C. 1255, am. CHAPTER LXIX Family Councils. 1331. Whenever application is made to provide minors, in- terdicted persons, absentees or substitutes, with tutors, or tutors ad hoc, or subrogate- tutors, or curators, or to aut hor- ize such tutors or curators to do some particular act, or for leave to alienate immovables belonu; ing to persons who have not the free exercise of their rights, or for the emancipation of minors, or to appoint judicial advisers, the .judge of the court cannot act without previously having taken the advice of a family council.— O. C 125(), dm. Civil Code, arts, m, 122, m 267, 269, 297, 801, 302, 30(i, ;«>", . •.';*. TUTORS, CURATORS AND JUDICIAL ADVISERS 181 315, 31V, 321, 329, 3:^r, 350, iM5 ; Infra, arts. 1337, 1340, 1346. 1332. Faiiiily councils are convened and composed in the manner provided in the ninth title of the first book of the Civil Code.-O. C. 1257. Civil Code, art. 249 et s. 1333. Any person demand- ing the convocation of a family council must show that he has UJsed due diligence to summon the nearest relatives residing in tlic district, and ths delay for such notice is one intermediate day, when they reside at a dis- tance less than fifteen miles from the place where the fainily council is to meet, wiih the usual additional delay when the diiitance exceeds fifteen miles. — 0. C. 1258, am. 1334. Before giving their ad- vice upon the matters submitted tc them, the relatives and friends must be sworn before the person by whom they are convened.— O. C. 1259. 1335. The minutes of the ad- vice given by the relatives and friends must be signed by them, or must mention the reasons which prevent then) from sign- ing. -C5. C. 1260. 1336. The Superior Court and the Circuit Court, and any judge of the Superior Court or of the Circuit Court, at any place where sittings of eithe"of the said courts are held, and in or out of term, have like juris- diction 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 records of the court in which the appli- cation was made.— O. C. 1261, am. CHAPTER LXX Tutors, Ciiratorn, and Judi- cial Advisers. 1337. Th(; proceedings to be taken for the appointment of tutors and su'^rogate-tutora to minors, and of curators to inter- dicted persons, emancipated minors and absentees, and of judicial advisers, are explained in the different titles of the Civil Code which treat of such mat- ters respectively— O.C. 1262. am. Supra, art. 51^1, § 6, 1331 et s. ; infra, art. 1340. Civil Code, arts. 88, 249 et s. 267, 331, 336o, 339, 341. 34H, 1338. The proceedings to be taken for the appointment of curators to accessions which are vacant or are accepted under benefit of inventory, or to pro- perty judicially abandoned by debtors, are regulated under the respective titles in this Code concerning such matters.— O. C. 1263, am. Su2)ra. arts. 581, 594, § 6, 866 et s. ; iufra. arts. 1410, 1426 et s. Civil Code, arts. 347, 347a, 348, 685. 1339. The proceedings for the appointment of curators to the property of corporations that have been dissolved or de- clared illegal are regulated un- der the title " Of Corpora- tions," in the Civil Code, and in article 986 of this Code.— O. C. 1264. Supra, art. 594, § 6. Civil Code, arts. 347, 347a, 348, 372. 1340. The proceedings for the appointment of curators to substitutions are the same as those f-ir the appointment of tutors to minors,— O. C. 1265. Civil Code, arts. 249 et k., 'Ml, 347a, 348, 945. ;<' ! i 0. 'd^ .^^1 182 SALE OF PROPERTY OF MANORS AND OTHERS. CHAPTER LXXI Sale of Property Belonjifing to Minors and Othe;r Dis- qualified Persons I. Of property exckedincj $400 IN VALUE 1341. II. Of property not exceed- ing $400 IN VALUE 1857. III. General Provisions 1301. SECTION I Of Property Exceeding Four Hundred Dollars in Value 1341. No voluntary aliena- tion of immovable property, or ot shares or stock in financial, commercial or industrial com- panies, belonging to minors or interdicted persons or to sub- stitutions, can be made without the order and permission of the judge.— O. C. 1267, am. Infra, arts. 1409, 1420. Civil Code, arts. 297 et s., 951, 1010, 1046, 709. 1342. Before the advice of the family council is taken, the Immovable must be inspecced by two experts, appointed, one by a tutor and the other by the subrogate-tutor, if the immov- able belongs to a minor ; if it be longs to an interdicted person, one by the curator and the other by one of the relatives nearest or kin to, or, in default oi! rela- tives, byafriendof such person ; and if it belongs to a substitu- tion, one by the curator to the substitution, or by a substitute of full age and capacity, and the other by the institute. Such experts must not be re- lated either to the parties or to the persons acting for them. O. C. 1268, am.; C. S. L. C, c. Is. s. 1. 1343. The nomination of ex perts may be made under the sanction of the judge or r f the notary before whom the applicji- tion is made to have a family council convened.— O. C. 1261). jjupra, art. 392 et s. See Form. Sched. DD. Ap- pendix. 1344. The experts, after Ik ■ sworn before the judjxe. piochonotary, clerk, or notary, must ascertain the condition and value of each immovahli', and verify the other circuni stances on account of which I lie sale is demanded, and make a written report thereof. — O. C. 1270, am. See Form. Sched, EE. A/i- pendix. 1345. If the experts cannot agree, each must report his re spective opinion, giving the rea- sons upon which such opinion is based.- ' 0. 1271. 134'^ "ri report is submit- ted i3 Timily council, to- gether w I ohe application to be authoriiied.— O. C. 1272. See Form. Sched. GG. and IIH. Appendix . 1347. If the matter relates to the investment of moneys or to sharei.^ or stock in financial, commercial or industrial com- panies, the value thereof must be ascertained.— O.C. 127H, ani. 1348. If the application is based upon the ground of neces- sity, the authorization can be granted only upon the produc- tion of an account prepared in the manner prescribed by article 298 of the Civil Code.— Neu: C. C. 298, in part. SALE OP PROPERTY OF MINORS AND OTHERS. 183 1340. The order authorizing the sale must tix an upset price for each immovable, share or stock, saving the provision of article VMS, and, independently of the other conditions imposed upon the sale, such upset piice cannot be less than the value .'vscertained.— O. C. 1274, din. 1350. If authorization to sell is refused, the reason for such refusal must l)e given in writ- ing and form part of the record. —0. C. 12T5, ain. 1.351 . The sale must be made judiciaily in the presence of the subrogate- tutor or of the cura- tor, as the case may be, to the highest bidder, by public auc- tion before the court, judge, piothonotary or any other per- son specially appointed for that purpose.— iVf'jr. C. C. 2i){), in T.(irt. 1352. A notice containing a (U'scription of the immovables, and mentioning the place, day and hour of the sale, must be published in the following man- ner : 1. Wlien the immovables are situated in the city of Quebec, Montreal, Three Rivers, Sher- brooke, St. Hyacinthe or Sorel, or in the town of St. Johns, by inserting such notice, at the latest, fifteen days before the sale, in a newspaper published in French and one published in English, in the locality ; and if there is only one newspaper in the locality, or all are published in the same language, by insert- ing it in both languages in the same newspaper; or 2. When the immovables are situated in a parish other than tliose contained in the above- mentioned localities, by reading aloud and posting the notice on the third Sunday before the day fixed for the sale at the door of the church of the parish, im- mediately after the morning st'/vice, or, if there is no church, at the most public place in the locality. If there is no service, it is sulticient to merely post the notice. - O. C. 1270, am. 1353. The notice of sale in the case of shares or stock in financial, commercial or indus- trial companies is given in the manner prescribed by the order granting the authorization.— New. C. C. 29., in part. 1354. If no higher price is offered than the upset price, the person applying for the sale may proceed to effect a private sale, l)ut lie can only do so with- in the four months which fol- low the authorization, and for a sum n^l less than the upset price.-O. C. 1277, 1355. In the case^f a volun- tary licitation of an immovable, held undividedly between a tu- tor and his pupil, and which cannot be advantageously di- vided, proceedings are had in the manner above-mentioned, and no purchase of it by the tu- tor is valid unless the minor is represented at the sale by a tu- tor ad hoc.-O. C. 1278. Supra, art. 1046. Civil Codf, arts. 2()9, 709. 1>{50. In the case of sale of securities, such as capi- tal sums, shares or interest in financial, commercial or indus- trial companies, or public se- curities belonging to minors, interdicted persons or absen- tees, or to substitutions, the jndge authorizing such sale, upon the advice of a family council, may, if he thinks fit, order that the sale be made at the current rate upon the stock exchange by a broker or other 184 SALE OF PROPERTY OF M[N0R8 AND OTHERS. person appointed for that pur- pose, witi.oit advertisement or other formalities, and may au- thorize the gradual disposal during such delay as shall be determined of such securities at the "urrent rate upon the stock exchange. The broker or person appoint- ed must make a report of all sales by him made, and for- ward it to be deposited in the office of the court where the authorization for the sale has been deposited, with an attesta- tion under oath, showing the current market value of securi- ties sold on the day of each sale. — O. C. 1278rt, am.; R. S. 0010. Civil Code, art. 351rt. SECTION II 0/ Property not exceedinq Four Hundred Dollars in Value 1357. Whenever the real val- ue of the whole of the immov- ables or immovable rights, capi- tal sums, shares or interest in any financial, commercial or in- dustrial company, belonging to a minor or disqualified person or to a substitution, does not ex- ceed the sum of four hundred dollars, the judge may, upon petition presented to him to that efiect by the tutor and sub- rogate-tutor of such minor, or by the curator of such disquali- fied person, or by the institute or the curator of the substitu- tion, or a substitute of full age and capacity, as the case may be, after making summary in- quiry as to the value of the said property, order the sale thereof by public auction at the prices and upon the conditions which he may deem just and reason- able to lix, in the interest of sucli minor or disqualified person . - O. C. 12786 ; K. S. 6010. Civil ('ode., art. 3516. 1358. The judge has power to issue under his hand an or der to compel the appearance before him, without costs, of any person whom he deems qualified to afford ' un the in formation necessary to deter mine the value. Any such person refusing to comply with such order l)e comes guilty of contempt of court.— O. C. 1278c; R. S. 0010. Supra, art. 834. 1359. The notice of the sale is governed by the rules con tained in articles 1352 and 13;)3. — O. C. 1278d, a.m.; R. S. 6010. 1360. The judge may, when he deems it advisable, exemi)t the petitioners from the neces- sity of publishing the noiiee jnentioned in the preceding ar tide, and authorize them to sell such property, by niutnal consent, to any person paying the price fixed by such judge. - O. C. 1278e;R. S. 6016. SECTION III General Provision 1361. Any person charged with the sale of property belong- ing to i\ minor or other disquali- fied person, or to a substitution, must prepare a report of his proceedings, and return the same into the office of the Sn- perior Court, together with his proceedings. Such report and proceeding's remain deposited in the office of the Superior Court.— iV^cw. PROCEEDINGS RELATING TO SUCCESSIONS. 185 CHAPTER LXXII Prooeeclings Helating^ to Succes8i<»iis I. Affixing Seals 13«2. Removal of Seals 1375. II. Making of the Inventor- ies 1387. Sale 1399. section I Seals § 1.— affixing seals 1362. Seals can be affixed on the property of a succession so long only as an inventory there- of has not been made. — O. C. 1279. 1£93. Whenever seals are required to be affixed, a com- missioner is named *Dr that purpose by the judge upon the application of any party inter- ested.— O. C. 1280, am. Supra, arts. 594, § 3, 676, § 7, 798, § 6. Civil Code, art. (i81. 1364. Tne affixing of seals may be demanded : — 1. Ey all those who lay claim to the succession of the deceas- ed or to a community dissolved bv the death of one of the con- sorts ; 2. By the creditors ; \i. By the testamentary execu- tor. 4. By the Crown, when there are no heirs, or when the prop- erty is confiscated.— O. C. 1281. 1365. The commissioner must draw up minutes of the proceedings in affixing seals, in which he must state :— 1. The date ; 2. A designation of the person refjuiring the seals and the na- ture of his right ; 3. The judicial order authoriz- ing the affixing of seals : 4 The attendance and de- claration of the parties ; o. A description of the pla'^es, bureaus, chests or closets, over the openings of which seals are attixed ; 6. A summary description of all articles found in view and placed under seals ; 7. The taking, at the close 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 designa- tions of the pe/sons in whose I custody the things under seals I have been placed, and with I w' dm a copy of the minutes I must be left ; 9. The signing of the parties i present, or their being called upon to sign, and the reasons I which prevented them from do- ! ingso.-O. C. 1282. I 1366. The seals are affixed I upon each extrr;.iity of a band passing over the keyhole of the I lock, if there is ">ne, or, if not, passing over the joint of the opening of .he apartment or re- ceptacle containing the effects, in such a manner that it cannot be opened without breaking the band or removing the seals. — C. C. P. 1283. 1367. If, when seals are be- ing affixed, a will made in authentic form by the deceased is found open, the commissioner enters a description of it in his minutes, and delivers it to the guardian ; but if tlie will is not iu authentic form, or if it is closed or sealed, the commission- er, after sealing it himself, must deposit it in the office of the court, together with his min- I*. ■ 4 186 REMOVAL OF SEALS. 9f' utes, in order that probate may be effected at the instance of the persons interested.— O. C. 1283, atn. Infra, art. 1430. Civil Code, art. 85(5 et s. 1308. When the commis- sioner finds the doors fastened, or is refused admittance, he must report the fact to the judge, who may order the open- ing to be effected by all neces- | sary means in the presence of tv»o witnesses, and with such I force as may be required. The commissioner may, in the meantime, place guards around the premises in order to prevent fraudulent removals. — O. C. i 1284, am. 1 Supra, arts. 008, 620. | Civil Code, arts. 059, 070, 1348, ! 1364. 1360. If, after he has enter- ed the house, the commissioner meets with a declaration of opposition, he must mention it in his minutes, in order that the matter may be referred to the judge ; but he must place guards in the meantime to pre- vent fraudulent removals. — O. C. 1280. 1370. The judge decides forthwith upon the opposition, either by countermanaing or re- Btricting the aflixing of seals, or by ordering the proceedings to continue.-O. C.1287. 1371. 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.— O. C. 1288. 1 372. If there are no movable effects, the commissioner must state so in his minutes.— O. C. 1289. 137'3. As soon as the com- missioner has completed his minutes, he ia bound to deposit them in the office of the court to form part of the records thereof. -O. C. 1290. 1374. No second affixing ol seals can take place, unless the first has been impugned as null. In affixing seals the second time, the bands are placed acro>-s those of the first sealing.— 0. ( . 1291. §2,— REMOVAL OF SEALS. 1375. All applications for the removal of seals, vhen con tested, and all oppositions made after the affixing of seals has been completed, are heard sum marily, unless the pleadings are ordered to be in writing.— O. C. 1292. 1376- If the affixing of seals is declared null, an order is given at the same time com- mf nding the commissioner who affixed tfem, or some other per- S071, to emove them without ary inventory, and to make a return of such removal; and, in default of this order being com- plied with, any bailiff holdinj4 h copy of the order may break them and make a return of his I having done so — O, C. 1293. I Supra, art. 594, § 3. I 1377. If, however, seals have I been affixed a second time, t he 1 complete remov al cinnot take Elace until both sealings have een adjudicated upon.— O. C. 1294. Supra, art. 1374. 1378. If seals have been affixed before the burial of the deceased, they cannot be re- moved before the expiration of three days after such ourial, ex- cept for urgent reasons, which must be stated in the order which authorizes the removal. — O. C. 1295. REMOVAL OF SEALS. 18t court cor ms of ss the id as second across -O. ('. Lft. 1379. The removal of seals from the whole or from a part of the property may be demand- ed by auch persons as may de- mand to have them aftixed, and also by any person claiming to he owner of the efFects placed under seals, accordin.'u; to their res'^ective rights ; and the right to prosecute snch demand be- longs to him who lirst makes It.-O. C. 1296. Supra, art. 1364. Civil Code, art. 292. 1380. The removal of seals jiiust be applied for by petition to the judge, in order that the inventory may be proceeded u ith after notifying all persons interested.— O. C. 1297. , 1381. The judge, when au- thorizing the removal of seals, orders that an inventory of the effects shall forthwith be made, after summoning, by a baililF's notice, or a notice in notarial form, the heirs of the deceased, the surviving consort, the testa- mentary executor, and all known legatees. Nevertheless, if the persons entitled to be present at the re- moval of seals, or to take part in an inventory, reside outside the Province, they need not be sum- moned. In such case a judicial procurator is named by the Judge, on application of the per- son demanding the removal of seals, or the making of an in- ventory, to represent such per- sons ; and notice must be given such judicial procurator to be present. Notwithstanding the nomina- tion of a judicial procurator to represent the persons above- mentioned, such persons or any of them may also DC present and take part, or may send a power of attorney to the judicial pro- curator, or to any other person, if they think fit to do so. Such appearance or appointment of a mandatary terminates the man- date of the judicial procurator. -O. C. 1298; R. S. 6017. Supra, art 1308 ; infra, arts. 1389, VM). 1382. If any of the persons mentioned in the preceding article have not the full exercise of their rights, they must be provided, according to law, with tutors or curators, as the case may be.— O. C. 1299. Supra, art. 1337. 1383. The seals are removed in succession, as the making of i;he inventory progresses. If the edects under seals are not all inventoried at one time, the seals are '.eattixed upon the remainder. — O. C. 11300. 1384. One or more returns of removal of seals must be made, as the inventory pro- gresses.— O. C. 1301. • 1385. The return of removal of seals must contain :— 1. The date ; 2. The names, residence and occupation of the applicant, and his tuected domicile ; 3. A recital of the order for removal ; 4. Mention that the notices required by article 1380 have been given ; 5. Mention of the persons pre- sent and their respective allega- tions ; 6. The names of the notary or notaries charged with making the inventory, and of the ap- praisers. 7. The verification of the seals, if they w^ere unbroken ; if not, the state in which they were found, saving recourse against whoever may be liable. -O. C. 1302. 1386 . If papers or effects are found, which do not belong to ■y ", t 188 INVENTORIES. the succession or the com- munity, and which are claimed by third persons, they are de- livered to the proper persons, after describing them iji the re- turn, if fiuch description is de- manded.— O. C. I'Mi. SECTION II Inventories. § 1.— MAKINU OF THE VENTORY. IN- 1387. The formalities • and proceedings prescribed by the present section apply to o,ll cases in which an inventory is re- quired. -O. C. 1314. Supra, art. 594, § 3 ; iyifra, arts. 1405, 1427 s. 2. Civil Code, arts. 90, 97, 292, 463, 6;^, 662, 664, 681, 08(), 688, 826 et s. 919, 946, 1342 et s. 1389. 1388. An inventory of the property belonging to a deceased person or to a community dis- solved by his death, may be de- manded by any person who has an interest in it ; but the follow- ing persons only can take part in it :— 1. Those who represent the deceased ; 2. The consort of the deceased, or such consort's representa- tives, if a community existed ; 3. The testamentary executor. In the case of a community of property dissolved by a judg- ment, the inventory may be de- manded by either of the con- sorts.— O. C.i;W4. Civil Code, arts. 267, 292. 1 380. All persons entitled to take part in it must be present at the inventory, or be repre- sented thereat in accordance with article 1381, or have been notified to be present in the same manner as for the removjil of seals.-0. C. 1305; R. S. 6018. Supra, art. 1308. 1300. The person who is bound to have the inventory made chooses the executing notary ; the other parties mav appoint a second notary. In cases where seals have been attixed, the order for their re moval designates the notary who is to make the inventory, snbject to the above restriction. -O. C. 1306. 1301. The inventory must be in authentic form.— O. C. 1307. 1302. The inventory is coin posed of two parts. The first, or the preamble, contains the names, occupation and residence of the persons making the inventory, of those who applied for it, oJ* the per sons present or who failed to appear, of all interested persons absent, if they are known, of the appraisers, and the respec tive allegations, pretensions and protestations of the pai- ties. The second part is the inven- tory proper and contains : — 1. A designation of the place where the inventory is made ; 2. A description of the mov able property and effects, and a valuation thereof made accord ing to their real value by two sworn appraisers ; 3. A designation of the a- mounts in specie or in valuable securities ; 4. A designation of all papers, which must also be numbereil from first to last, and be par aphed by the executing notary ; 5. All declarations of claims or of indebtedness made by the parties ; 6. Mention of the oath having been taken, at the end of the inventory, by those who, before MAKING OF INVENTORY. 180 the inventory, were in posses- Hion of the things, or who in- habited the house in which sucli things are, to the elFect that no portion of them has been fraudulently removed or car- ried away with their knowl- edge ; 7. The deposit of the papers and effects in the hands and custody of the person agreed upon by the parties or named by the judge; 8. A designation of the im- movables.— O. C. 1808, (tm. Civil Code, arts. 21)2, 059, 670, r.m, 1364, 2168. 1^*9:^. If, while the inventory is being made, difliculties arise between the parties as to their respective rights and preten- sions, tlie notary is bound ':o record such pretensions in th< inventory, together with ali protestations against the same, leaving the parties to their judi- cial recourse.— O. C. 12309. 1304. Any of the parties may petition the judge to oblige the notary to enter their preten- sions or protestations in the in- ventory, and the judge is bound to decide upon such petition in a summary 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. 0. C. 1310. 1395. Whenever difficulties liave arisen as to the right to be present at the inventory, the judge may order the exclusion of any of the parties when it is manifest that they have no light ; or else he may order that proceedings shall be taken pro- visionally in their name, sub- ject to the respective protesta- tions of the parties ancf to their right to obtain a decision upon their pretensions after the in- ventory is completed.— O. C. 1311, am. Su2)ra, art. 1388. 1396. 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 neces- sary. -O.C. 1312. 1397. The surviving consort or other person, who is l)Ound to have the inventory made, is en- titled to the custody of the in- ventoried effects in preference to any one else ; unless, upon being referred to, the judge, for some important reason, orders )therwise.— O. C. 1313. 1398. The inventory may, whenever required, be judicial- ly closed, at the chef-lieu of the district, by the judge of the Superior Court, the prothono- tary or deputy prothonotary, or at any place in the district, out- side the chef-lieu, where the Circuit Court is appointed to be held, by the judge or the clerk or the deputy-clerk of such Cir- cuit Court, upon the submission of the original inventory or an authentic copy thereof, with a sworn declaration that such in- ventory is faithful and correct. Every prothonotary, and every clerk of the Circuit Court held at a place not being the chef- lieu of a district, shall keep an indexed register, in which he shall enter and make, and cer- tify as true, a copy of every such sworn declaration and closure of inventory made in his district or circuit.— A7'ir. 61 Vic. c. 47, 8. 9. ■ .wfl m •*.:. 190 BENEFIT OF INVENTORY. § 2.— SALE. 1300. When the sale of the movable property i« demanded by any of the heirs pursuant to article 697 of the Civil Code, or of any other copartitioner, it takes place upon a day fixed, of wluch puljlic notice must have been given.— O. C. 1315. Supra, art. 104(5. Civil Code, arts. 15(52, 1.5(53. 1400. The sale takes place wherever the ett'ects are situat- ed, and for cash, unless it is otherwise agreed or ordered.— O. C. 1316. 1401. The sale is effected by a bailifTor by any person agreed upon by the parties, and the moneys are received by the per- son thus employed.— O. C. 1317, a7n. Civil Code, art. 1 505. 1403. The sale may take place either in the presence of the persons interested or in their absence after they have received due notice of it.— O. C. 1318. Supra, art. 1308. 1403. Minutes of the sale are draw^n up, stating what inte;r- ested persons were present, and what notice was given to those who were absent, and specify- ing each object put up for sale, the price for which it was sold, and the name of the purchaser. -O. C. 1319. 1404. If any of the coheirs or copartitioners are minors, the notice of sale must also be published and posted in the same manner as in cases of sale of movable property under exe- cution.— O. C. 1320. Supra, arts. (538, 639, SECTION III Benefit of Inventory 1405. Benefit of inventor\ can only be granted upon peti tion to the judge, stating that an inventory of the property of the succession will be orhasbetii made, that the petitioner has not acted as heir, and that he believes it in his interest not to confound his rights with tin- oblige tions of the succession. O C 1S21 Civil Code, arts. 301, 642, OOo et s., 878. 1406. The beneficiary heir is bound to give notice of his qual ity as such, by an advertise ment in the form contained in Sch'^dule J.T in the Appendix fo this Code, published at least twice in two newspapers uitH. -O, C. 13;iC). SECTION VI Vacant Successions 1420. The judge proceeds to the appointment of a curator to H vacant succession, after tak- ing the advice of the relations and credi'ors of the deceased, convened in the manner pre- scribed by such judge.— O. C. i:m, am. Supra, arts. 1H:W, 1410. Civil Code, arts. 347, 347a, 348, 401, km et s. 1427. The curator is bound : 1. To give notice of his ap- pointment by an advertisement published at least twice in two newspapers determined by the judge ; 2. To cause an inventory to be made observing the same for- malities as in ordinary succes- sions ; 3. To cause tlie movable pro- perty to be sold, observing the same formalities as in the case of successions in which minors are concerned.— O. C 15^4, am. Supra, arts. 15387 et s. 1404. 1428. He may sell the im- movables and shares in finan- cial, commercial or industrial companies by following the for- malities established by law for ihe sale of property belonging to minors, upon the advice of the parties interested, present 103 that at a meeting convened for j.^^ purpose in the manner presc ed by the judge. Such su.., as lespects immov- ables, cannot be had except with tlie consent of all the hypothe- cary creditors.— O. C. 13Ji5, am.; n. S. (5022. Supra, art. 1341 et a. 1420. He is bound to render an account of his administra- tion in the same nuinner as any other curator, and also from time to time, whenever requir- ed by a competent court or by the judge to do so.— O. C. 13:^0. SECTION VII Probate of Wills 14»0. Any judge of the Su- perior Court, at any place where the said court or the Circuit Court is appointed to be held, in court or out of court, in term or out of term, or in vacation, and any prothonotary of the Superior Court, at the place where his office is therein held, out of court, but in term or otit of term, have and exercise with- in and for the district in which such place as aforesaid lies, the same power and authority as are vested in the court exercis- ing superior original jurisdic- tion by article 857 of the Civil Code in what respects the pro- bate of wills. The proceedings shall form part of the records of the Super- ior Court at the place where they are held, or of the Circuit Court at such place, if the Su- perior Court is not held there. New. C. C. 857. Supra, art. 1367. Civil Code, art. 85() et s. 13 'msamm 194 ARBITRATIONS. ELEVEISITH PAET. ARBITRATIONS CHAPTER LXXIII ArOitrations 1431.- Submission is an act by which pejrsona, in order to prevent or go put an end to a lawsuit, agree to abide by the decision of one or more arbitra- tors whom they agree upon.— 9. C. 1341. Civil Code, art. 1918 et s. 1432. Tiiose persons only can enter into a submission who have the legal capacity to dis- pose of the objects comprised in ft.-O. C. 1342. Civil Code, arts. 177 et s., 297 et s., 307, 322, 334, 351, 985 et s., 1919. 1433. The appointment of arbitrators by the court is regu- lated in articles 411, 412 and 413 of this code.— O. C. 1343. Supra, art. 127(5. 1434. Deeds of submission made out of court must state the names and additions of the partiey and arbitrators, the ob- ject? in dispute, and the delay within which the award of the arbitrators must be given.— O. C. 1344. 1435. Submission nmst be in writing.— O. C. 1345. Civil Code, art. 1214. 1436. The arbitrators must hear the parties and their proofs respectively, or establish a de- fault against them, and decide according to the rules of law, unless V)y the submission they hjive been exempted from doing so. If they have been appointed at the same time as mediators, or as mediators only, they .uv not recpiired to decide accord ing to the rules of law. The witnesses to be exaniiiicd before the arbitrators may l)e sworn before the prothonotary or the clerk of the Circuit Court of the locality, or before a com- missioner of the Superior Con rt. -O. C. 1346, am. 1 437. During the delay fixed by the submission the appoint- ment 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. -O. C. 1347. 1438. The submission be- comes inoperative:— 1. In the case of death, ro fusal, withdrawal orinabilil> to act of tne of the arbitrators, un- less some clause provides that it shall avail notwithstanding, or that such arbitrator shall l)o replaced by anot.her 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 ex piration of the delay hxed ; 3. By the failure to agree, if the appointment of a third ar bitrator has not been provided for; 4. By i.hc nmtual consent ol the parties ; 5. By the loss of the thing which forms the subject of the submission ; 0. By the extinction of the ob mm ARBITRATIONS. 195 iators, ley art' iccoid iniiiiftl nay l>e )notaiv t Court a coiu- f Coint. \y fixed ippoint- caiiiidt ith the i. d, either oke the 'ases. ion l)e- ath, re- ability to tors, nu- les that banding, shall l)e losen hy niaining ors, or lij^ation which formed the sub- ject of the submission ; 7. By revocation in the case of the preceding article. — O. C" 1318. 1439. Arbitrators cannot be recusedexcept for reasons which have arisen or have been dis- covered since their appoint- ment.— O. C. 11^19. 1440. If the arbitrators fail to agree, and the appointment of a third arbitrator has been provided for, such appointment is made in conformity with the submission and the case is ex- amined anew.— O. C. 13.50. 1441. No award of arbitra- tors 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. — 0. C. 13.51. 1442. The award of the ar- bitrators is made out in notarial form or deposited with a notary, wlio draws up an authentic act of the deposit, and it must be pronounced in the presence of the parties, or a copy thereof must be left with or served upon them within the delay fixecl by the submission. — O. C. 1352, (nn. 14415. Any extra-judicial a- waid of arbitrators can only be executed under the author- ity of a competent court, upon a suit brought in the ordinary manner to have the party con- demned to execute it.— (). C. 13.53. 1444. The courtbefore whicl such a suit is brought may ex- amine into any grounds of nul- lity which ciffect the award, or into any questions of form which may prevent its being homolo- gated, but it cannot inquire into tlie merits of the contesta- tion ; nevertheless, when a pen- alty h The defendant pleads pre- scription by thirty years {or five years, or as the case maybe, and state briefly the facts giving rise to the presciHpfion); and prays for the dismissal of the action with costs. {Date.) G. H., Attorney for Defendant. SCHEDULE F FORM OF experts' OATH (ART. 400) I, A. B,, of {if there be tiro or more persons to be sworn s((i/ I, A, 15., of , and I, C. I) , of ), Swear that, in the presence of E. F., the plaintiff, and G. H., the defendant, named in an in- terlocutory judgment pronounc- ed in {here insert the name of the court) in the district of , bearing date the 18 , or in their absence, after due noti- tication shall have been given thera, to attend at a place desig- nated, and on a day and hour to be stated to them, respectively, I will faithfully proceed as an expert to tlie view and examin- ation required by the said judg- ment ; and that I will truly re- port my opinion in the prem- ises, without favour or partial- ity. So help me God SCHEDULE G FORM OF c;ERTIFICATE of THE nue administration of the oath (ART 400) Sworn before me , a com- missioner of the Superior Court in the district of {or sub- delegate authorized by the com- mission, or the judgment, as the case may be, hereunto an- nexed, or as the case may be), at , the , 18 . SCHEDULE H FORM OF witnesses' (ART. 404) oath I, {insert the name, pro- fession or quality and place of resideyice of the witness), swear that I am not related or allied to, or a servant of either part^, and that I am not interested in the event of tlie present cause {or, if the witness says he is, state i)f what degree he declares h imself to be related or allied to either and which of the parties, or what situation he holds in the service of either of them) ; and that the evidence, which 1 shall give before the experts {or arbitrators, or mediators, as the case may be), named in the in- -im\ 200 FORMS. terlocu lory judgment pronounc- ed by {here insert the name of the court), in the. present cause, sliall be the truth, the wliole truth and notliing but the truth. So lielp nie God. SCHEDULE I FORM OF challen(;e to the ARRAY. (ART.440) (TITLE OF CASE) The (plaintiff or defendant), challenges the array of the panel on the {^tround that it was returned byX. Y., sheriMof the district of {or E. F., deputy of X. Y., sheriff of the district of , {as the case may be) that and the said X. Y. {or E.F., as the case may be) was guilty of partiality [or fraud, or wilful misconduct, or as the case may be) in returning the said panel. {Date) H. K., Attorney for the (PI; ^ntiff or Defendant). SCHEDULE J FORM OF CHALLENGE TO POLLS (ART. 456) THE (TITLE OF CASE) The (plaintiff or defendant) challenges G. H., on the ground that the said G. H. is interested in the suit {or as the case may be). {Date.) H. K., Attorney for the Plaintiff or Defendant). SCHEDULE K FORM OF AFFIDAVIT TO OHTAIV JUIXJMENT HY DEFAULT OH EX PARTE (ART. 5IV2, §2) (TITLE OF case) A. B., of , the plaint itV {or one of the plaintiffs, or as the case vtay be), being duly sworn, doth depof.o and say The sum of ^ , being the amount demanded of the dc fendant, is to my knowledge justly due by him to the plain tiff {or plaintiffs), for the causes in his {or their) demand nu'ii- tioned. And I have signed, A. B. Sworn, etc. SCHEDULE L FORM OF advertisement OK sheriff's SALE (ART. 716) Public notice is nerehy given that the uudermentioniMl lands and tenements have been seized and will be sold at tlie respective times and places mentioned below. No. Fieri facias. 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 tJie case may be, and insert the des- cription of the layid or other immovable property, parish, seigniory or township, and the county and district in which the same is situate,) , in the county, etc., bounded, etc. To be sold at , on the day of , at o'clock in the (forenoon.) FORMS. 201 ! .. « 1 SCHEDULE M FORM OK ADVERTrSKMKNT OF snERfFF'S SALK (ART. 7^^^^) (title of (VsK) Notice is hereby given that the sale of the immovables seiz- ed In this cause, formerly an- nounced to take place at {hour), ou (day), 18 , at (place), will take place at (hour), on (flay) 18 , fit (place). A. B.,Sheriir. (Date.^ SCHEDULE N FORM FOR PUBLICATION IN THE NEWSPAPERS OF A NOTICE TO CREDITORS COLLOC- ATED (ART. 821^) Province of Quebec, ) District of ) SUPERIOR COURT A. B. vs. C. D., and E. F., Plaintiff; Defendant : It E. F. Creditor collocated. is ordered that the said (his quality and domicile) or his legal representatives do appear before tnis Court on the 18 , in order to answer the contestation of his claim. {Date). R. S., Prothonotary. SCHEDULE O FORM OF DEMAND OF ABANDON- MENT UPON A TRADER WHO HAS CEASED HIS PAY- MENTS (ART. 854) To A. B., of (state place of domicile or ordinary residence. occupation, and firm name if a ny) : You are hereby required Vjy C'. I)., your creditor, whose claim is unsecured in a sum of ^ , to make a judicial abandonment of your property for the benefit of your creditors, in the office of the prothonotary of the Superior Court for the district of , in the Court House in (Date.) C. D. SCHEDULE P FORM OF NOTICE OF MEETING OF CREDITORS FOR THE AP- POINTMENT OF CURA- TOR AND INSPEC- TORS (ART. 866) (title of case) The said , having made a judicial abandonment of his property, for the benefit of his creditors on the , 18 , the creditors of the said are notified to meet in the office of the undersigned prothonotary, on the 18 , at o'clock in the noon, to advise as to the appointment of a curator and inspectors. (Date.) F. G., Prothonotary. SCHEDULE Q FORM OF notice OF APPOINT- MENT OF CURATOR (ART. 872) (TITLE OF case) Notice is hereby given that, on the 18 , by an or- ^rm ■I 202 FORMS. der of the court, the under- signed WHS appointed curator to the property of the said . who has made a Judicial abandonment of liis property for the benefit of liis creditors. Sworn claims must be filed with me within thirty days from this notice. {Date.) H. R. SCHEDULE R FORMS OK AFFIDAVIT FOR CAPIAS ^ (ART. 898) 1. — Against a Debtor abscond- ing from the Provinces of Quebec and Ontario (TITLE OF case) I (names, domicile and occu- pation), being duly sworn, do depose and say :— 1. I am the said plaintiff {or the bookkeeper, or the clerk, or the legal attorney, of the plain- tiff', as the case may be). 2. The defendant is person- ally indebted to the plaintiff in the sum of $ , 3. The said indebtedness arose in the following manner; {state the cause of indebtedness suc- cinctly, and the time and place where it has arisen.) 4. The defendant is immedi- ately about to leave the Prov- inces of Quebec and Ontario, with intent to defraud his cred- itors in general and the plaintiff in particular (or with intent to defraud the plaintiff, as the case may be.) 5. Theplaintilf will thereby be deprived of his recourse against the defendant. And I have signed. Sworn, etc. 2.— Against a Debtor who secretes his Property Fotloiv the foregoing form, irith the exceptiofi of Pani f/raph 4, for which subsfitnfr the following : 4. The defendant is secreting {or making away with, or has secretcvi or made away with, or is immediately about to secrete or make away with) his prop- erty, with Intent to defraud his creditors in general and the plaintiff in particular {or with intent to defraud the plaintill", as the case may be) . 'd. — Against a, Trader wlio refuses to make an Abandon ment. Follow the first foron herein- above given, ivith the exception of the fourth and fifth pa7'a- graphs, for which substitute the following : — 4. The defendant is a trader who has ceased his payments, and refuses to make a judicial abandonment of his property for the benefit of his creditors, al though duly required to do so. SCHEDULE S FORM OF AFFIDAVIT FOR CAPIAS FOUNDED ON INFORMATION AND BELIEF (ART. 901) Folloiv the for 7ns in Schedufe R, with the exceptio7i of para- graph 4, for rvhlch substitutr the followl7ig :— 4. IJam credibly informed, and believe, that the defendant is immediately about to leave, etc. {or as the case may be) ; and the sources of my said information and the grounds of my said be- lief are the following : {here state them succiiictly . ) FORMS. 203 SCHEDULE T FORM OF PROVISIONAL BAIL- BOND (ART 1)10) ' (IITLE OF CASK) We {names, doinlciles an<1 dc- cup(itions), sureties on behalf of the defendant (jointly and severally), promise and under- take that the defendant will, on {state liTt the day on ivhieh the defendant is reqxtired to ap- pear), or at any time previously thereto, or within ten days thereafter, fjcive p;ood and sufli- eient security in conformity with article DIM of the Code of Civil Procedure, to the satisfac- tion of the Superior Court forthe said district, of any one of the judges of the said court, or of the prothonotary, or that the de- fendant will surrender himself into the custody of the sheriff within the same delay ; and, in default thereof, that we, the said sureties, will pay to {name here the sheriff), sheriff of the said district, his heirs, repre- sentatives and assigns, the amount of the judgment to be rendered herein to the extent of {state here the amount, if not for unliquidated damages in- dorsed on the writ), and also in such further sum as the in- terest and costs shall amount to {or in case of unliquidated da/mages, state simply the amount fixed, by the judge, omitting mention of interest and costs). And we have signed. occupations), sureties on behalf of the defendant (jointly and severally), promise and under- take that the defendant will make a judicial abandonment o'" his property for the benefit of his creditors within thirty days after the rendering of judgment maintaining the capias, and also that th<; defendant will surren- der himself into the custody of the sheriff, when reouired to do so by an order of tne court or judge, within thirty days after service of such order upon him or his sureties ; and that, in default of the defendant's mak- ing such abandonment or sur- render, or either, within the de- lays abovementioned, we, the said sureties, will pay to the plaintiff the amountof the judg- ment to the extent of {state here the amount, if not for un- liquidated damages, indorsed on the writ), and also such further sum as the interest and costs shall amount to {or, in case of unliquidated damages, state simply the amount fixed by the judge, omitting mention of interest and costs. . And we have signed. SCHEDULE U FORM OF BAILBOND (ART. 913) ('TITLE OF case) We {names, domiciles and SCHEDULE V FORM OF PETITION OF RIGHT (ART. 1012) In the Superior Court, District of Quebec, To the (Queen's Most Excellent Majesty : The humble petition of A. B., of {domicile and occupation) by his attorney, C. D., of {resi- dence), sheweth : 1. {State the facts). Your suppliant, therefore, 204 li'ORMS. humbly prays that (state the re- lief elaime), which land is now occupied by D. C. (or has not been occupied for years, and was last occupied by N.) ; and that the said A. B. alleges that by deed of , entered into by D. E., of , be- fore F. G., notary (or as the case may be), at , on the , ' a hypothec was constituted upon the said immovable here- inalwve described, for the sum of , and claims from thr present proprietors of the said immovable the sum of , due him for The said A. B. further alleges that the present proprietor of the said inmiovable is unknown (or uncertain), and that the known proprietors, since the date of the said deed of have been N. G. and F. Notice Is therefore given to the proprietor of the immovable to appear before the said court, at , within two months, to be reckoned from the fourth publication of this present no tice, to answer the demand of the said A. B., failing which, the court will order that the said immovable be sold by sheritrs sale. (Date) H. P., Prothonotary. SCHEDULE Y FORM OP WRIT FOR THE SALE OF IMMOVABLE (ART. 1030) To the Sheriff of the District of Whereas the following notice hath been given in conformity with Article 1030 of the Code of Civil Procedure (recite the no- tice) : and, whereas, judgment was rendered on the day of , ordering the sale of the immovable described in the said notice ; You are hereby required to make the ordinary announce- ments thereof and to sell the said immovable in order to the payment to the said A. B., of the sum of and FORMS. 205 taxed costs, and you shall make a return of this writ and of the oppositions which have then been placed in your hands. H. P. Prothonotary. SCHEDULE Z FORM OF APPEARANCE OF PRO- PRIETOR OR POSSESSOR (ART. loa;^) I, B. C, appear to answer the petition of A. B., as proprietor of the immovable described in the said petition by virtue of {mention the title upon which the proprietor bases h is claim, and give the date thereof). bCHEDULE AA FORM OF NOTICE OF LICIT ATION (ART. 1047) Notice is hereby given that under and by virtue of a judg- ment of the Superior Court sit- ting at , in the district of , on the 18 , in a cause in which A. B. {de- scription at length) is plaintiff, and C. D. {de script ion a J length) is de'endant, ordering the lici- tation of certain immovables described as follows, to wit : {hei'e insert the description of the property to he sold), the pro- perty above described will be put up to auction and adjudged to the last and highest bidder on the , 18 , sitting the Court, in the court room of the Court House in , sub- ject to the charges, clauses and conditions contained ir the list of charges, deposited in the office of the prothonotary of the said Court ; and that any op- position to annul, to secure charges, or to withdraw, to be made to the said licitation, must be filed in the ottice of the prothonotarv of the said court at least twelve days before the day fixed as aioresaid for the sale and adjudication, and that any opposition for payment must be filed within six days after the adjudication ; and fail- ing the parties to file such op- positions within the delays liere- bv limited, they will be fore- closed from so doing. G. H. {Date.) SCHEDULE BB FORM OF NOTICE OF PETITION FOR CONFIRMATION OF TITLE (ART. 1()()8) Notice is hereby given that there has been lodged in the ofiice of the prothonotary of the Superior Court, in the district of , a deed executed before A.B., notary, on the between CD., of ;andE.F.,of ; be- ing a («aZe) by the said C. D. to the said E. F., of {describe the im- movable), and possessed by as proprietor, for the three years row last past ; and all persons who claim any privilege or hy- pothec upon the said immov- able immediately before the registration of the said deed by which the said {lot) was ac(juir- ed by the said C. D. are hereby notified that application will be made to the said Court on the 18 . for a judgment of confirmation of title ; and that unless their claimsare such as the registrar is bound by the 206 FOBMS. provisionH of the Code of Ci'il Procedure to include in his cer- tificate to be filed in thiH cajse, they are hereby re(|uired to Herve their oppositions in writ- ing, and llle the Hame in the office of the said prothonotary within six davH after the said day, in default of which they will be forever precluded from the right of so doing. SCHEDULE CC FORM OF AFFIDAVIT IN SUPPOHT OF OPPOSITION TO JUD(i- MENT(ART. 11()5) (TITLE OF case) G. H., of . the opposant {or one of the opposants, or other person, as fne case may be), being duly sworn, doth de- pose and say : "^•le facts set forth in the an- nb: 3d opposition are, to my knowledge true. And I have signed. G. H. Sworn, etc. SCHEDULE DD FORM OF NOMINATION OF EX- PERTS ^ART. 1343) On the day of , in the year one thousand eight hundred and , at o'clock in the noon, before the undersigned notary for the Province of Quebec, residing in the district of , came and appeared A, residing , of the one part, and B, residing , of the other part, who have appointed, to wit, the said A, C, and the said B, D, as experts for the pur pose of proceeding to the in spcction of the real estate be longing to , described in the declaration made by the said , by act before notary, to ascertain tlie value thereof {and if the nale is ffr man(fed on account of indivis ibility, add and whether or not it can advantageously bo di vided). FORM 5^CHEDULE EE OF experts' (ART. 1344) oath T, and I, swear that I will faithfully proceed to the performance of wliat is required of me by the act of my appoint- ment executed before notary, on the , and that I will make a true report of my opinion on the whole matter, without favour or partiality. So help me God. Sworn, etc. SCHEDULE FF FORM OF REPORT OF (ART. i:^) EXPERTS The experts appointed by , on , declare that, having previously made oath, as ap- pears by the certificate hereunto annexed, they proceeded on the ,18 , to , the inspection of the real estate and dependencies described in the , and after due ex- amination and obtaining all in formation necessary for the pur poses mentioned in their said act of appointment, they value B'ORMS. 207 lie ex all in le pur r said value and estimate the said real ch- tiite {if there arc several nnvwvahlca, they should be val- ued separately ; and if the sale is made on account oj indivisi- bility, addwnd. further, they de- clare that it cannot advantage- ously be divided). The said experts further de- clare that they are not related to the parties interested in the matter in (luestion, nor to their legal representatives. {Date.) SCHEDULE GG FORM OF MINUTES OF FAMILY COUNCIL (ART. 1346) On the day of , in the year one thousand eight hunared and , at o'clock in the noon, before me, the undersigned notary for t he Province of Quebec, residing in the district , came and appeared , who aftirms that in conformity with the declara- tion made by act before , notary, bearing date the , for tne purpose of obtaining authority to sell, for the reasons therein set forth, the real estate belonging to , therein de- signated and described as fol- lows, to wit : {here describe the real estate) he did for the said purpose caused to be summoned before us, to wit : , in de- fault of relations, requiring us, they being present, to re- ceive their advice as to the con- tents of the act of declaration aforesaid, and the parties al)Ove- iiaraed having appeared, we have caused to be read the said act of declaration, the report of the experts made before , notary, and have taken and re- ceived from them the necessary oath, and such oath having been made, they have all unanimous- ly declared that they are of opinion that {Should there be a division of opinion, men- tion the same, and give the rea- sons therefor.) SCHEDULE Hir FORM OF PETITION FOR HOMOLO- (JATION (ART. 1340) Province of Quebec, \ District of - j To the Honourable Judges : A. {addition nnd place of domicile) humbly represents that he has caused the relations and friends of to be con- sulted by , notary, at on the 18 , and has, caused to be fulfilled all pro- ceedings, by law required to be had in order to , and sub- mitted for your approval. And he therefore prays that Your Honours will take these proceedings into consideration and homologate them. {Date.) SCHEDULE JJ FORM OF NOTICE BY BENEFI- CIARY HEIR (ART. 14(K}) Notice is hereby given that the undersigned has accepted, under benefit of inventory, the succession of the late in his lifetime of {state here the residence and occupation. {Date) A. B. '* ilULES OF PRACTICE OF THE SUPERIOR COURT, THE CIRCUIT COURT AND THE COURT OF REVIEW. The following Rulks of Practice were adopted at a meeting of the judges of the Superior Court held, in the Court-house of Quebec, on the 22nd and 23rd of December, 18()7, and at which were pres- ent : the honorable Sir Louis- Napoleon Casault, chief justice, Sir Melbourne M. Tait, assist- ant chief justice, and the hon- orable judges Routhier, Caron, Bourgeois, Jette, Taschereau, Gill, Cimon, Loranger, And- rews, Pelletior, Larve, Ou'met, Davidson, Tellier, de Billy, Pagnuelo, Gagne, Doherty, Archibald, Curran, White et Lemieux. RULES OF PRACTICE OF THE SUPERIOR COURT It is ordered as follows : 1. All former rules of practice arc rescinded and the following established and proclaimed to be the rules and orders ol this court : 2. The Queen's counsels and barristers practising in this court shall appear, when in court, habited in black, with white necktie, and in such robes and bands ay heretofore have been used and none shall be heard in any case, unless so habited. S. The prothonotary shall a]) pear in court habited in black, with white necktie, and in such robes and bands as heretofore have been used. 4. The sheriff shall appear in court habited in black, with white necktie, and with his robe, his wand of office and his sword. 5. The deputy-prothorotaries and deputy-slieritFs shall appeal- in court habited in black, with white necktie, and in such robes and bands as have been ordered in the case of the prothonotary, and the deputy-sheritfs shall further bear the wand of office. 6. The chief-crier and criers shall appear in court habitofi in black, with white necktie, and in the robes heretofore used. The chief-crier, or the crier discharging his functions, shall further bear the statt' of office . 7 . The sheriff, the prothono tary, the chief -crier and the criers shall, skting the court, personally attend in their re- spective places, from the open ing to the rising of the court. H. When several divisions of the court shall sit at the same time, the sheriff and the pro- thonotary may be represented, in each of the said divisons, by one of their deputies and the chief -crier by a crier. 9. The offices of the sher'M" RULES OF PRACTICB OF THE SUPERIOR COURT. 209 OURT shall ap in black, id in such eretofore 1 appear ick, with with his e and his or.otaries ill appeal- ick, with uch robes [1 ordered lonotary, Ifs shall of office. nd criers : habitv,y tlu'se presents. *2. The forms for the Superior Court shall be likewise those for the Circuit Court by making therein the changes necessitat- ed by the difference in the names of the court and by designating the Superior Court more especi- ally than it is in the forms whenever the writ issued from the Circuit Court i*^ returnable in the Superior Court. ii. The following rules apply only to non-appealable cases. 4. The clerk shall keep a register of the judgments wherein shall be entered at length all the orders, rulings and judgments in each case, with their date and the name of the judge rendering the same, the number of the case and the namos, actual domicile and quality of the parties. 5. The clerk shall also keep a register wherein shall be en- tered the number of the case, the names of the plaintiff and those of the defendants (adding, if there be several plaintiffs, a specification to that effect), the date of the issue of the writ and of its return, its nature, the amount of the demand and its nature, the name of the plain- tiff's attorney, the appearance of the defendant, whether per- sonally or by attorney, the date of the fyling of the preliminary exceptions and pleas to the merits, the date of the inscrip- tion and of the judgment, with its amount, the date of the dif- ferent writs of execution and of their return, with their nature, the amount of the proceeds thereof, the oppositions fyled, their contestation and the judg- ment thereon and its date. This 218 RULES FOR THE STJPERloR COURT IN REVIEW. register, as well as that men- tioned in the preceding rule, shall, during office hours, he communicated to .dl asking for the same. hul.es for the hufer- lOR COURT SITTING AS A COURT OF REVIEW. It is okdkred, as follows ; 1. The days on which the Su- perior Court shall sit as a court of 'View shall be, at Montrea', e\ y juridical day, and at Que- bec the last four Juridical days of the months of January, Feb- ruary, March, April, May, June, September, October and No- vember. 2. When notice of the pre- senting of a petition or motion has been given for a day fixed for the sittings in review and that, for any reason whate\er, the said court is prevented from sitting, such ix'tition or motion shall be given to the clerk and submittea to the court at its next sitting. 3. When, on the day on which a case is to be argued, the party who inscribed it does not appear or has not fyled the statement hereinafter mentioned with the notes of his proof, the inscrip- tion may be rejected and, if the opposite party fails to appear or has not fyled his statement and the notes of his evidence, the party inscribing may argue ex parte. 4. Except in the case of re- vision of a judgment on opposi- tion to marriage, eacJi of the parties shall fyle a statement or factum of the grounds and rea- sons which he desires to urge. This statement shall be divided in t o articles regularly numlterei I and set out under each numb* i the difVerentgrouijdsand points of law submitted, supporting the latter by the legal authori- ties bearing on the same by re ference or transcrintion and the parties shall not be heard on grounds other than those urged in their statements. n. The said statement must be type- written and tlve conies thereof deposited at the otlice of the court of review two days be fore the hearing of the case. One of these copies shall remain to form part of the archives in re view, f)ne shall form part of the record and shall be transmitted with it to the prothonotary of the district in which the case was tirst judged, and one shall be handed to each of the three judges hearing the case in re \ iew. 6 . The motions prescribed by articles 493 and 494 of the code of procedure do not exempt from the fyling of the statement mentioned in the two preceding rules. 7. The record transmitted to the court of review must be ac companied by a list of all the papers composing it, and by u copy of all the entries in the plumitif and of all tlie judg- ments, orders and rulings in the cause. 8. Provisional execution, its prohibition or its suspension shall be accorded only on specia' petition setting forth the reason in its suppt it and supported by an amdavit. The petition and the affidavit must be serv ed upon the adverse party, with two days' notice of its presenta- tion. O. The prothonotary shall GENERAL RULES APl*LlCAnry this court in due eoarse of law. And We com- uijvnd you also to summon the said defendant to appear before ("his Gourt, at the court -hodse in in Our icifj/ or fouui or rilUuit) on the dii^' at ■ . ' . y.-,-- vice upon hiu' < >" answer t he dt'tnarmti ./"ita!;;"i: in the dec?" i •t^.ion, Ia' pursuant •' .'aw V \' (!(;■ :.et be Wk command you, at the in stance of A. {^.^{actiuil fJoiri vile and f/iadHy) jilaintill', in seize, att;>c!i and reveii(li;;iti' the movable eliects follovviiiu, namely : {(ini ineraiioii idkIiI'- scri/i-fion of the e{yevtr, to In sei::r(f ,,s In thr Jiat) of wliirh the said phiintiir claims the |mis •ession in his quality of {on-m r or fifedc/er, ilepositary iisulriu tuari/, in.,'it>/ute of sutK'itifnf im, or au'-.iitiife, as (he case nonj be), and wluch he alleges to lie of the vahie of find to lie detained by C. D., (actuat nr last knoirn residmre) the (!■ "endant, and the saix«4M#y{| FORMS. 227 said Court ; and We also coni- iiiiuid you to suiniiiou the said ( ". 1)., {lie defendfiiit, to ajipear liefore this Court, at the; eoui't- lioust', ill Our {fittj, or, tt'c.) th<- day after the service upon him of (his wril to answer to 1 he demand contained in tliede- (laiatioii to he served pui'snant to hiw, and to set fortli the I'ea- voiis, if any tiiere be, why the said attachment .■^liouhl not he itcchired ^^ood and vaUd. After wliich you will return your pro- ceedings on this writ. In witness wHKUEor, etc., P. S. C. On the biick of t/ir writ :— Issued on the fiflidavit of for the sum of ^ Atty for I'ltr. No. 17. SVaiT OF SAlSIE-CONSEItV'ATOItiE i'rovince ear before this Court, at tlie court-house, in Our (city o>\ ct'c.) N. H.'-Thc remainder as in tlie writ of arret sitnjttc. In witness whekeof, etc. P. S. C. Oil t}>> Ixtck of f tic irrit : — Issued on tin- aHidavit of for tlu' sum of Attorney for IMtf. No IH. FIAT FOi; WHIT OF SAISIl-; EN MAIN JiEKCE BEFORE JUIHi- iM ENT. Province of Queliec, ) District of ) IN THE SlF'EUlOli COl ItT. A. D., (actuxil domicile and qualittj.) PlaintilT; vs. C. 1). (actual or last hnoicii 7'esidence). Defendant ; and K. 'V.. (tu-fiad domicile and ijuality). (Jarnishee. liipjjcarfor the plaintiff and m 228 FORMS. demand for him against the defendant a writ of saisie-arret in tlie hands of tin; garnishee above named, addressed to and returnable {hour, ;errmnd $ rent Thib 18 Attorney for Plff. SUPERIOR COURT. A. B., {actual doinicile and quality). Plaintifl'; last known Defendant ; vs. (J. D., {actual or residence). and v.. v., {actual or last knoun residence). Mis en causi I appe.ar for the plaintiff aim demand for him a writ ofsaisif f/ayerie addressed to to attach for rent the household goods, etlects, animals, " mer chandize" "and faiin implc ments " which garnished the following premises, to wit ; {desr Iption oftheprcuiis€8)B.ni\ which the said defendant has. within eight days, removed to or upon the follow ing premises, to wit : (descripfion of prem- ises). Returnable the day after siTvice of this w'rit on the defendant. Demand f This No. 20. FIAT FOR WnVY OF SAISIE-(;A«E RIE PAR DROIT DE SUITK : Province of Quebec, ) District of I Atty rent IH for I 'I ir. N. B. The words m€rchandi:<' and farm implements should be omitted when the premises leased are neither a shop nor a farm. No 31. AVIMT OF SAISIE-OAGERIE. Province of Quebec, ) District of ] FORMS. 229 r last knoiin Mis en cavsr. ))i€7'chnn(fi:r' icnfs shonh! the prern'isis a shop nor a ; (iAOKRfE. No. IN TIIK SUPERIOR (OlIRT. Victoria, &c. To Grkktin(! : We corniiiJind you, at tlie in- stance of A. J^., aclunl tfomicile and (jiKiliti/), plaintilf, to at- tach, by s'jizure and arrest of Stn'fiir-(f(i,yerie, in the hands of CD., {actual or last nanuut resi- (hnce), defendant, all and every the movable effects, household goods, and furniture " merchan- dize " and " implements used in its workinij" whicli shall be found " on the farm as well jus " 111 the "store," worksh*)p, house and dependencies occupied by the defendant and described as follows-, to wit : ((tescription of the premises) and t,o keep the Hjune until, upon the attach- ment ther^'of, it shall l)e ordered l)y Our Siiid ('ourts as of right. We command yon also 'o sum- mon the said C. I)., defendant, to be and appear before Our said Court, in Our (city or to\\ n, etc.,) the day after the service upon him of this writ, to answer to the demand of the said i)laintiff, contained in the declaration to be served i)nr- suant to law and to state the reasons, if any there be, why the said attachment should not be declared Rood and valid. After which, you will return your proceed in{j;s on Ibis w^ril. In witness whereof, etc., P. S. C. X. B. When the 'premises leased are not a store, '' f/ie iro/Y/.S'MER(;HANT)I/E AND SHOPS should he strartx out. In the nr it and when not a farm, thr irnrds " IMPLEMENTS ITSED IN THE WORKING " and the wttrds "ON THE FARM AS WEI.E AS " s/ioufd be struck out in the writ. WRIT No. 22. OF SAISIE (JAOERII': PAR DROIT DE SUITE. Province of Quebec, District of To IN THE SUPERIOR ( OURT. Victoria, &c. Grektinc; We command you, at th<' in- stance of A. H., {ffamici/r and. (/uiditt/) plaintiir, U. attach by seizure and arrest of saisie- (/(ffferle all and every the mov- able eflects, household goods, furniture and animals which, within the last eight days, fur- nished and garnished tlie fol- lowing premises, to wit: {de- scri/dlon of prr nt ists orcapied bjl thr lessee under the l(i-e sent writ, to answer to the de- niaiid contained in the declara tion to be served, pursuant to hivv, and to sot forth the rea- sons, if any tliey have, wiiy tlie said attachment should not i)e rleelared pxxl a»'(l valid. AfttM- whi(;h, you will return your (U)- iufjjs on this writ. In vvitnrsh \viii;hi;()K, etc., \\ S. C. Knti'!/ on I'f back of flw icrit Issued on tlie atlidavit of for tlie sum of Atty forPUr. No. 2{<. WRIT Ol SAISIK I'.N MAIN IIIMU E liKKOllJ-; .lUDtiMKNT l*rovince of Quebec,! District of J In Tirii: Sitpkuiou t'ouur. VrtTouiA, &n\ No. To (iKKKTINC : Wi: (toninand yon, at the in- Rtanc(» of A. H., {orfnnl tlouii- cilr (in({ (jintfifi/), IMainlilV to Rummon C I)., Un-tuol rrs'i- (foicr), Defendant, and K. V., Utcfunl (lomirifr (onf (/Koh'ff/), (rarnisliee, to api)par before tliis Court, at tlie court-house, in Our (ciff/ o)' foicii or of) the day of the month of (present or next), at ten o'l^lock in the forenoon for tlie said jjcar- nishee to declare upou oath, the sums of money, movable ell'ects or other (hin.u;s that In; owes or has in his possession belon^inj? to the said defendant, or that he may owe or have beloiiRinf^ \<> him hereafter in his possession : and We command the said ^ai- nishee not to dispossess liimseK of the said moneys, movable ed'ects or other thinjjjs, until Our Court shall hav(? onlered upon th(! said attachment as ol riglit ; and for the said defend ant to answer to the demand ol the |)laintitr contained in thi declanition to be. servtHJ ])nr suant to law and t,o set forth tli< reasons, if any he has, why tin said att.'ichment should not be declared ,1{. WUir OI'SAISIK-AIMM i EN MAIN TIKUCK AKIKU .MMKiMllNT Province of QiU'liec, | District of / In the Sui'EiMou Court. A. !»., (art 1(1(1 (foniin'fc aii> on (lit I/) Plain tilV; No. vs. C. D., {actual or last f:no}' :■ Foinrs. 0')1 *lrf I > 1 ifHulcnce n)i(/, whoi thr Imr so ii'i/itires, nunt'ioti of the nature of the iiilli ufofthe defenihoif (1)1(1 the place ir/iere he exervis' s If). Defendant ; and E. F., (nrtufif doniieUe tnut (/itiilif)/) (Jjirnishee ( '/'iersStiifii.) I iippc'iu* for the plulntitr and (Icjuiind fen* liiin n writ of f^ftisie- II reft after J\id}ji;nu'nl i the li.'indH of the j^arnisliee. Writ juUlressed to and return- al)le the {lainf ill' al)0V(! named has ohtaiiu'd Jud^''>nent in this {'ourt against tJic defend- ant ahove named on the for the sum of with in- terest at per cent from the "and tlu- costs since taxed at with interest thereon from the date of the judiiinent" iind there still remains due the whole amount of the said sum, " the costs" and the interest "upon the on- and ui)on the other" or the balance of (as the case may he) "and whereas the plaintitr has been nuthori/f'd to execute the said ,jud^;ment for the costs." W'e command you and each of you,thcs;iid jj;arnishc(' {tiers sitisi) and defendant, to appeal' IxM'ore this Court at the, coiii't- house {in /lie city or toien or iitta(i< orparishof,as /he case niaijl.r) on the day of the month of {ne.it or])resent, as the case ma ij f)e)ixi ten o'clo(;k in the forenoon, for the said uarnishee {tiers-sa isi) to declare upon oath the sum (.)r sums of m(>ney, rents, revenues and movai)ie ell'ects that lu^ has or shall or may have in his hands due or beloii^iuij; to the s.aid dc fendant. and to show the rea- sons, if any you have, why tin* present attachment should not be declared p:,ood and valid. And you, the said garnishee {/iers-saisi) are enjoined not to dispossess- yourself of the sums of money to the amount oi the ~ t ■i* ,,,..i,: 232 FORMS. H\iu\ and (lie iuton-st reiiiaiiiiut; (lu<' as afoi'cHaid ()therwis»! than as rtMpiired l>y law, ami of t lu* said sniiiH of nunicy which the law doi'H not, auihnri/e ns to dis- pose of otherwise and of tin- Haul revenues, rt-nlM and mov- able eilrcts, until the court has d(?termined. In dcfatilt by the said j^arni- .shee {tiers s(iisi) and defendant to appear and by the said ^nr- nishee to nuiUe the u to summon the saifl giiinishfc (tirrs^nlsi) and defendant to api)ear bclt»ie this ('(nut, at the court house, in the (city, town, viilMge, &c,, IIS the rase miiy l)e), on th»^ day of the month of (present or n*i!Xt, as the case iniiy tte) at ten o'clock in the forenoon, the said garnishee to declare upon oath tlie sums of money, rents, revenues and movable eMects I liat h«* has or shall or may have in his hands, due or belonging to the defendant and (he said garnishee and d» fendant to show the reasons, if any they have, why the present aUach ment sliould not be declared goo(' and valid. And yon are enjoined ; re)naindera.si)t form 25). '/'he address of the irrif being at the begin ning of the second jxirapraph need not br repeah'd at the end. No., 2«. FIAT FOR WRITOFFIKHI FACIAS. Province of Quebec, 1 District of / supp:riok court. No. A. P., {art (in I domicile and quality, as in ^^'c judgment.) Plaintiff; V: C. D., {nctual residence, as in the Judgment). Defendant. No. I demand for the plaintifl" a. writ of execution addressed to FOIIMS. 233 tKIOTlNO tlie SheriflT of this district to seize aixl Hell the inovahle hihI iminovjihle eMeets of the defend- iiiit .lud^iineut (thiie) for ^ with intere.si on •^ ut percent ( Dsts taxed with int-erest from the (late of judgment dislractiMi ill favor of L. \\., Jittoroey. The i)laintir is authorized to rxccute for the costs at 18 Attorney for Plaintiff. \, B. When the ex( "u/ion , only (KjitinHt tnavables, the i rit 111(11/ br ti (I (t reused to the sluriff or to t.tie hditijfs, and, in sttch case, the trorrls "and immov- AULEs " must he omit fed. Atid, !/ the pftrti/ rnusiiKj the e.t'ern- tlon is not empotreree otdi/ lujohist iiniiiorafftes, MOV \ tu.ks )HKst b< sfriu'h- out, and , n tiait vase (hi irrit can otdi/ Ite attdressr 'i to fhc sheriff. No. 27. WillT OK rriCK. FACIAS. Province of Quebec, ( District of j In thk Superior Court. Victoria, &(;. To the Sheriff of the district of ) ( No. Whereas Greeting , A. 13 . {doynicile and quality OS in the judgment), heretofore, by the judgment of Our said Court, bearing date the {date, inonth and year) re- covered agaluHt C. I)., {liiwicn residence as in the Judffment) the sum of currency ; with inttrest on tin sum of from the (day, nionfli and year) at the rate of per centum per annum, until pai-ia H2.5 32 2.0 SS >^ % -^ \ ^ ^:\ V iii(i form rr- lalhKj to the costs timst he sfriir/k' out. WRIT Ol' Ni). 28. VKNorrioN'r Ai'/ri(i,i:()()l i:xi")XAs, Province of Quchec, i District of f IX TiiK sri>i;i!i(M{ < oruT. ViCTOlMA, &('. No. To tlie Slicri(r, &c., uiid totlic Bail! /Is, «&c. Grkfting : Whkreah on the {dai/, inotit/i, i/ear) A. H., {arfiKff (lotiii- cile and .• i unihn'ili/e oiilji) of the s.iid ('. !)., and whereas the said eM'ects wi'i'e seized on the {ddji, uiovf/i, yeor) as appears hy tlie proces- v«'i"bal l)earinj>; (hite the an- nexed to this writ; hut wluMvas the: said writ under whicii the said attMchment. \ as made is (lout or (ft strof/ed) and the sul)- se(|uent costs and t lie cost of the present writ amount to. We command yoii to i)roceed to the sale of the etfects at'acli- vaI as afoH'said, to wit : as tl\ey are doscrihed and specitU'd in the proces- verbal "nereunto annexed and, after deductiii-: your costs and dishurseirients. to pay or deposit the i)rocee! CJi;ei:tin(; : Will';]}!; AS on the(*«'/<0, (hir said Supericn* Court, in Our said disti-ict of .in> tiie plaint itV, and wliereas tin' FORMS, ok; )ii Court Lcl i(iM a.uiiiii I s 1,1 flir Jti'I'l lolttaiiie U I" •i-iiir ('«->iift, ill of .iii\\ iiii; of the jii'i-: ts distrad' s(dl the same, and, after (h- (hiei in^" ydui'cost s and dishnrsi- iiients. \o (h'posji and pay the jMOi-eeds a;''"ordin'j; to law, Anl A'o. '.'■' sure ill the (1(1(1 il iim iif flic (li s((/)i(if io/i of the i>ri>()('i'f !i sii::c(l . II AT roil vvKir or po-^sismox. I'roN inee of Qneln'C, I i)is'rief, of ' In rift: Si'i'i;i;io:i ( oi u r, Xo. A. !?., {(cf 1(1(1 ili.mirih Kill! '("llill/, " '^ ill flll/lt'/l/IIKHf) I'laintiH': vs, (". 1)., (risiili iici \ ((s ill III!' jiiilifiiinif) J)(dendant . I demand for the plaint id' a w rit address(Ml lo (sherill KI- hailill') and nd nrnat»le wit h- <»iil delay to pnt tlu^ said plain t ill' in ])ossessi()n of {dcsrripl ioti) \vln(d' the defendant has i)een eniidemned to deliver np let hini, hiii whieh he ddains and le fii^es to d(diver up. .Iud;4;meiit {(fii(() This IS Attv for ntr. AVI? IT OK I'OSSES.SlOi^. Province of Quehec, ) i)istnet of )■ IN riiK siTi-KinoR I oruT Victoria, tfcc, To \o. (!kkktlv(; : \Viii;i:i;as, on t lie served upon tie said >-'session of the saaie, and that yon return this writ, Willi your doin}ji;s thereon, to Our said fcjuperior t'ourt at without delay. In WfTNKSS WIIKHKOF, cto . Attorney for Pllf. Deputy P. S. C. No. :$3. ORDKR TO Pirr IMTHCIIASEIl IN I'OSSKSSION. Province of Quebec, | District of J IN THK SUPKRIOI? (OITKT. No. To the SheriH'ofour district of Gheetinc : WiiEUKAs on the dav of one thousand eight hundred and ninety by a judgment rendered in Our said Superior Court, at , in a cause under the uund)er , in which A. IJ., {doniicilc and (luallhj, its in the .-iKjnnioiis) was plainliir, and A. D., {residence, as in the ac- tion) was defendant. and L. M., {aetual dotnicile and (fiialiti/) was purcliaser. It was adjudged that the said ])urchascr be put In possession of the following inmiovuhle, to wit : desi(/nafi(>7i). Wherefore, \V .;, the under signed, .hidge, &<;., hereby or- der you to eject the said defen dant, without any delay what- ever, and in e proceeds of the said sale, to pay to the plaintitr the amount of the prin- cipal, the. costs and the interest on the princi ul as aforesaid, and on the costs from the dates of the judgments allowing them, with further the sum of for the cost of this writ, and you shall return this writ and your doings tliereon after the delay fixed by the code of procedure. In WITNESS WHEREOF, etc. fe. ■ini»Tnii^^ir<-i»ii Q^ 38 Foil MS. N. li. — If there has to hi' (/is- tvihiil ion, i)isfnnf of orthriiui to /ini/ over to tlo- /i/n lilt iff, tin urit (((lit nssi it to the .siwrlli' ordf't's him. "to i-av to ihi; I'KHsoN TO i!i-; ohi)i;hi:i) jjv oru SAID corui" s 'io i'iiI'; ofik !•; oi' on; SAID coi f!i' I'o I'.i: oKDi:ifi;D 'I'MI'.'HIJ.N AS 0|- KK.HI ." No. ;t."i. FIAT lou (Oi;i<( l\); IMIMMSOX MKN'I'. i'rovince of Qui-bcc, I Di.^trict of I I\ ITIi: M'l'KKlOlt coriM'. No. A. 15., {(irtfiiif (/(niticite mnl (/lUftih/, (IS III t/ii jii(t(/iii(ii' .) IMaintill"; and C. I)., ircsidi )iee, os in t/ic jucl(/)nen(.) I)(>f(.Mui;nit. I dornaiul for the jilaiiUilVa writ of (eontrtiiiitc par eorps) against tlu^ said defendant ad- dressed to and reluiTialile with out dehiy. Judgment l^/r^/f) .*! Witii intei'est- fic^ni K(t(ite) Taxed costs With interest from date ofjudfrnieut Judgii/ent pronouncing contrainte . Costs of obtaining ru;(- tridnte Costs of tlie writ Til is 18 Atty for Plir. ! Vo. :U\. WUVV OI < ONIIfAIN it; \'\\{ (OKI'S, Province of (Quebec, | J)i*trict of j I.N riii; sri'i.Kioi; ( oi i; r. ; \'icloi ia, kv. I 'i'o tlie J-^heriir of tlie disi I'li i I of .tiid t(» I he bailiir.s of \ in ! Superior ('(nirt named for thi ! (list rict of Ciia:i:TiN(. : \\'hi:i{i:as oii the (ftoy, mont! . ,i/((ir) in this Court , judj^ineiii ; was reiideicd in a case under t he nuiiilter wlierein A. I ) , , {(loiii ;cll( ((11(1 (jiKitit I/, (I < ' ill t/irjiii/;j nil lit) w as I pl.tintill', and J). (' . i irisii/cncc, (fs in the Jiaffpni ii/ > was defendant , condemn int;; lie' I siiid defendant to pay unto the 1 })laintiir the suni of fei- {(to )n(t(/t s, lor ))( fsoiidi n-ro)i(js in' oth( rii'ise, os tlie case nio i In) with costs since taxed ;ir : whei'cas " the sjiid judu ment was served upon the said defendant on t!ie (deiy, }noiil h . i/iiir) and'" the said defeiidaiii has not sat i.-^iied I he said juil,. ment : W'iiereascoei cive impil- oiiment w is.on t he('/^///, nionih. yeiir) pronounced against the said liefendant . \Vk therefore oi'der you to ai' rest the \)Oi\\ of I he said {nonh h of the (tefendnnt) it he may Ik; found in the district of and to deliver him to the keep!!" of the common gaol of thisdis ti-ict of to be there detain ed until lie has |)lace(l in tie' hands of the Sherill'of this di^ trict or of the Prothonotary of this court tlie following suiu^, to wit : FORMS. lINII; I'AH i; (oritr tlu' (iisli-iav uuto ilii' f ' foi- )e c((se lii'i !j je taxed at he said judu poll 1 lie saiii 'III]/, rnon//'. d dcfendaiil je said jiid- ifive iinpn- ['/ill/, mil Hi It. against lln' ier you to ai said (iidiii'H it lie may 1h; !t of the kec})"!- 1 of this (lis :here detain tlaceil in tlu' ll'of this
  • itlionotary "i owing «uiu^. 1. The siini of (mnointf of the jufff/tiienf) with interest tliereonat per cent from '/"//, i/cf"', iiionfh) 2. The sum of amount of the costs of action with intrrest tliei-eon from the date of jiidg- luent. 'A. 'i"he sum of amount of th'' costs (HI olttaining theco/t- Irai'iiff pi If cor/is. \. 'i'he sum of for the cost (tf this writ, and your fees and (lishursenients foi- the arrest and conveyance of the said to the uaol aforesaid. Antl you shall make return to this con it inimedia.te,'v of this writ and of your doin;^ , thereon. \Vk order tlio gaoler of the trao! aforesaid to re* dve the ^aid and to safely detain him in the said pri>on until he lias paid and satisiied Hu- sums aliove mentioned. Ln witnkss whl-hi;oi-% etc. P. S. C. N. li.— When the 'oisiftisjied jiiityineiit has been pronounad 'Kjainst the 'j)erso}is vwntioned ill parai/r/is J or 'i ofdrficlr >■>■■> of the Coilr of Prori'itiirc the irords bitirvcu pu rcnthi s:s ■r:ii I'oi; riiK ai'1'i;aran('k OK A N\'lTNi:S.S DKTAIN- El) iX OAOL. Province of Quebec, \ District of / In the Supekior Court. To TiiK Gaoler of the common gaol of the district of No. Wf, judge, &c., order you to bring before Our Superior Court for the district of in Our for the district of on the day of one thousand eight hundred and id net y at o'clock in the foicnoon of the said day, the person of now incarcerated in the said common gaol of the district of for the sai«l to give U{)on oath evidence in a certain cause actually pending in the said ('ourt, before I's, be- tween A. B. and C. 1). ; and immeeiition to be served upon you herewitli. And We enjoin the oHiccr charged with the service of this order to return it before Our said Court with his certilicato of service immediately there- after. A. H. No. 41. I'lAT KOU fEREMPTORY MANDA MUS AND PEHEMl'TORV PROimUTiON. Province of Quebec, | District of / IN THE SUPERIOR COURT. I demand for {names and (!<•■ signation of the jjlaintiO', as In the writ of SH7?n»ons) against {names and designation of Ihr defendant,as in the in-it ofsu ni- ynons, also adding in the case of prohibition, to the name and designations of the court that of the party in the cause in which proceedings are prohibiteil) commanding the {the defendant FORMS. 241 riHi:ETIN(! : f A. B., Ulr- judgt', ^\--, oiii yon the citieers, re- ■inployees to il minufdi/ 1) or to siis I operations sothr thiviiH appear be- iges of Our irt-hous^e in ttr.) on tilt' r the service rit or at any r the exi)ir;i Lo answer to I to be served I the o(li('t;v ervice of tliis :. before Our is certilicato lately there- A. 1?. IIY MANDA- ;mi'Torv )N. 1 J )U C'OUllT. xiiiefi and d^'- aintiO', f^** '" urns) again '^t .ation of ih^ ■^ writ of sxnn- i lithe case of name and court that r- sent or next) the copy of this writ that will be served upon you, with a certitieate of tho manner in which it has been executed. Fail not herein un- der the pains and penalties of the law. In wiTNKss wni;iii;or, etc. P. S. C. No. 42. PKKEMPTOKY WRIT OF MANDA- MUS. Province of Quebec, 1 District of / IN THK SUl'KUIOU CDURT. Victoria, &c. Xo. To {Name and designation of thr cor])oration or jinhlic I'odi/, \ or conrt, or ])nblic ojUcer or hrlr, or representative of such ' o(fic)'r. L>e''indant. Ghekting : Seeing that by judgjuent bearing date (day, month, year,) Our Superior Court, sitting at in this distri' t, on the of A. B. (actual (Jonn'cile and qratlity, as in the, irrit of summons,) ordered the issue of a peremptory writ of mandamus informing you the at)ove named defendant to (de- scribe as in the Judgment the act rcfinired). We command and enjoin you to do without delay (rejxat the act re(piirrd,) and to have with vou before No. 4:j. I'ERKMI'TORV WHIT OF PHOni- HITION, Province of Quebec, 1 District of / IN THE SUPERIOR (X)URT. Victoria, ka. To {)iaiiie and desiff nation of t/ie iou't-r court ftnd of the de- fendant, as in the writ of sum- inons). Greeting : No. Seeing that, by judgment bearing date (day, month, year) Our Superior Court, sitting at in the district, on the of A. B., (ac- tual domicile and quality, as in the icrit of sutnmons) has enjoined the court above men- tioned to abstain from all pro- ceedings in the cause {specifj/ the cause, as in the judgjnent). We command and enjoin you the .said conrt to abstain from all proceedings in this cause. I''ail not herein under the pains and p,enalties of the law. In witness whekeof, etc. w s. c. The oflicer charged with the service of this writ nmst return it immediately after service. 16 242 FORMS, Jl No. II. FORM OF WUIT (>!• ( KHTIOUAKl. 1*1 o\ illCf of QiR'Ih'C, I Our (listri(!t, on tin; in Oiir HMnl (IllV uf DiHtricb of J i> IN inK srri;in(»u ( oritr, N'ictoria, otc in tho year©f Oui Lord <»nt' lljonsand uny yon, and also tins writ so tiiat th»*r. upon n)ay he done what of ri.Lclit. and accord in.ti; to law, shall 'i' meet to l>e dune. In witm;ss wiikhkok, etc. P. S. ( ■. A. ALPirAHETK^VL INDKX. A. ARTS. AlNiiMlonnictit of l*i'o- poriy .SlUto m-J. ih'innnd of ; service iiiid lilin,!^ of ^54, S.")."), .s.')!) fonlc'statioii of (Iciiiuntl. . 857 (lticliir;ition of ; how nwifle and prodiUMul bijH et s rtVect of iMh\ ,)n)visioiial ^iiurdian to.. .S«54 notice of Hft.") nicetin^j; of crc(litf)rs HW) nomination of curat or and inspectors HOT when n)ay .indj^t' najuc ihcse witiioiit an al»an- (loiini(M\t S(5S' wlio may demand nomin- al ion of guardian and curator 8(5!) ])o\versand duties of tlicse utnciais m) curator takes possession uf property HTO si'izures suspended after 871 iKit iceof curator*saj)point- iiieiit 872 a second demand may be made 87J5 security to be given 1 y curator 87 1 (Mirators sul),)ect to sum- mary jurisdict ion 875 powers and duties of curator, actions, sales, \c 877, 878, 87!) dividend sheets 880 rontestation of claims and dividends 8M Abandon III nit. — AUTs. examination of debtor as to his statement 882 tiling of records and ex- aminati(m of persons..8s:i, 881 contestation of Itilan. ..8S5et'H libeiation of the del)tor. . 88U no right of revision or of appeal in certain cases. . . 8iH) ellect of, as to del)tor 8U1 curators register; certiti- cate of i)roceedings 8l)li provisions as to coercive imprisonment 8U> et s trader who has ceased his payments and refuses to to mak'' al)andonment . . . 895 seizure before .judgment . U31 provisions as to al)andon- ment nuide afttM (•apias.H'ii7 et s AI>ro;»;Htioii of I<'oi'iiM>r liiivvs of l*rosonf7 where proceedings for hypothecary recourse are dii'ected against unknown })roprietors in2ll forced licitation H'is wh(?n licitation is prevent- ed by an opposition IKol sale of immovables he- longing to ndnors, exceed- ing .^400 1352-i;?.5.'{ sale where the property does not exceed ^400. . . . i:«» sale of the immovables of a succession 18!«» HOI Altiilavits. conuiussioners to receive 2"t id form of 11- to support petition to plead in forraa pauperis.. '"^'I 5-i INDEX. •^45 AllHlavitH.— AUTH. w lum sij^natiirr in dtMi !(> ill matttTs of ad.jndication upon (jiU'stions of law .... tHii) toohtaiti .i>ulj.?rmMif, l»y de- fault, in certuifi cuseH... rH'J^ tor oppositions to soi/ure of tnoval)los f547 Tor oi)po.sitions tosoi/uivs of innnovablcs 727 to accompany claim to money.s relurned into court. ()71 for writ of simple attach- ' ment Wili in revendication !>1(> for interlocutory injunc- t ion ." m) in suits aK'iin^t- corpora- tions irregularly formed.. 0S<) in mandamus matters. . . . ii'Xi tor writ of capiuH WH et s for habeas corpus 1115 op^/OsitionH by third par- tics um oppositions to .judgments. 11(55 petition of rigjit lOlli in hypothecary recourse, owner unknown 1027 petition in revocation jf judgment 1 IHl on motion to have case heard before its Innx in Review 1202 in (%asos of certiorari 12!M petition for letters of veri- tieation Ml.'J AtVi.vhiK Seals 1:^.2 et s Alias Writ of K.veciitlon. (501 Alimentary Allowance, provisional execution for. 504 to persons civilly impri- soned ...843-H41 All Saints* Day 7 Amenthnents. delay to answer to an uinended plea 204 nullities may be remedied 175 AniendinontH. — autn. of writ 5i:{ of defence 511 of returns by tlw sheriir, bailiJlor others 5li> jiidge may order 51S 510 not allowed to change the nature of the demand 522 must b«' served forthwith. r2/i servici' of amendment .... 524 service upo.i anew 2(5 Appeal. .sVv Conrt of Qiin'n\'i lienrh ... 12(WM21S Court of Hcvij'w 51 5:{. 404-407, IIHO 120S Privy Council 1240-12.-i2 from judgment in jiiry trial .....'.... 402 pro(!ed>n'e where no ap- peal is allowed ll.«)-ll I'.) Appeal, appeal to Court of Queen's Bench, general rule 12 from tinal judgment of the Superior ('ourt. ..... I.'i fi-om C'ircuit ('ourt, in cer- tain (rases fl from judgments rendered in Magdalen Isljuids 45 from interlocutory judg- ments 4(5 jurisdiction of in (.Quebec and Montreal. 47 judgments in camera 72 jutlgments in jury trials, inscriptions . .' 402 403 from the Court of Review- in reserved cases 405 provisional execution not- withstanding appeal.. 504 et s from judgment of distri- bution 8.'{0 no appeal in certain cases in judicial abandonments H!K) in matters of capias 024 in injunction cases 069 — ,:- 240 INDEX. Appeal.— A UTS. ill certain matters re lor ririg to ."orporationN, iVc .1(MM5 on y attorney :, no- taries in certain case... . . :<"> in person ; party deemed to have elected iomicile at {)rolhonotary's oUice. . M delay for defendant's ap- j)earance • lt;i when defendant does not appear iCi; when may defendant ob- tain j)ermission to iij>pe;u'. IrM in app'-al 121 -^ in proceedings in cer- tiora -i . . 1207, i:i(i| ArbitratJoics I4:il 1 1 1 1 snbmis.sion detined M'l who may ent er into a ileed of sul>mission 1 |:ij apj>ointmeiil <^f arbitra- tors by the court. M;;.: what the deed of submis- sion sliould contain 1 1:11 must be in writing Uii'i duties of arbitrators llMii revocation of submission . 1 li'.T wlien this submission lias nv et'ect . . .1 |;is recusr.,tion of arliitrators. 1 !:;:! nomination of a third arlii- trator 11 Id concurrence of two a'lii- t i-jitors necessary 1 I II how tlie avvaid is made. .\'<\:'. e-vecution of t he award. . It i:i court will exan.ine the form of award only 1 1 i i Arhitfaiors. - when recourse may be had to * ill rules as to experts apjdy. 41. do not take oatli, unless specially recjuiied 11: detiide only on matters submitted .' II:! cannot decide as to costs. Il'l their remuneration Hi homologjttion of their re- port '57 references to arbitrator?^ by commissioners' court.. 127H arrest in '^ivil matters. HJ^2 Ml' jWrt. yiir'-if. A-iftiaA.' *, INDEX. 2[1 Arhitralors. — Ain's. how oiMlcrod and exe- cuted S:!(» et s l>;iil not allowed S|(l when and where debtor may not Se arrested SH .jiid>;e may order ancst at any t inie ,SJ2 Ai'ticiiIatioM of farts. — when ])artics in;iy be thus interro;:;aled.. IW.) how sunnnoned and to whoni addi'i'Nscd :{(iO;i()l .'.ppeaiance of a pari y ... olil! answers by a eorpoial i(»n. .'itiM tlefauli in answt'sini.'; .'Id! !orn» of intt-iToi^.it ories. . . ;{(m answers to additional i|Ui.'stio?is ;;i;() lurni of Jini.wers ;](.i7 I'ejeetod answers :>(KS costs of 3ti!) taxation MTO interrotjcarories under a cotninission 37H Ase:<;n«i<)ri Day 7 Ash We affidavit re(|uii'ed iY.V.i formalities of the writ. . . . d'M !iow seizure is made d'AiS copy of writ must be serv- ed on the defendant S>;5;eneral provisions IKU) formalities for sale ()4') At ta<'liiiH'n(. AIM'S, may issue from Commis- sidin is" ( 'oiirt \'J')S Attacliinenl by (lai-nisli- ni»'nt, .-jppeal to Coni't of l{e\ lew (»n motion to (juash 52 notice of salt? of movables seizeil before Judijment .. (ill) in what easts tliis writ may be ol)tained ;Ml) eontents of I he \\ rit . . .'.Ml-!* 12 lormaiities re(|ui:'e(i !l|;{ if declaration is not eon- t ested, the eourl ani<-siat i(!n of 1)15 njay issue from t'oiumis- sioneis' Court 1258 deeia!'at ion of jj^arnishee in Commissioners' Court 12(i(), 12(11, 12(52 Attavliineiit '"or Kent, in what eas* ^ allowed. . . . 052 seizure in recaption X^^ service of declaration. . . . !»51 e.jectmeid after notice (o lessee to (juii lOSi) notice of sale (»|() proceedinj;s in summary mat ters 1 152 et s Attav'hMient in lU'vendi- <;ati()n, when and by whom exercised 1)1') nature of the w rit 1)17 rules jj;overnint? DiS ))()ssession oi el!'ects seiz- ed and inventory IMl) et s may issue when ^ovjrn- nient is e.d.judKed to srr render moval)le projx'rty . 1022 wife suing for separati(jn entitled to 11U3 Attorneys, ])arties n)ay app»^ar and plead by. ... s:{ must make election (»f domicile '80 must die power of ^ittor- ney fro'^i nori-resident plaintiff 177 disavowal of. .251-258 "*"**«M^«WfW?»«t J!','** ' 248 INDEX. AttornoyH. — Airrs. change of by dcatli, in- ability to act, or with- drawal 25<)-2(iri attorney withdrawing ought to give notice 2(»0 when adverse party must be THit in default, to name a new attorney 202 neglect to appoint a new attorney 20:3 party revoking his man- date nuist i)ay costs ... 204 and name a new attorney. 2(55 perempti(jn does not lie, if party lias ceased to be represented by 2H) professional secrecy l^V2, distraction of costs 553 in whose name judgment for costs may be executed. 555 Attorneys.— arts same attorney may act in recpiete civile lls;{ who may act licfore Com- missioners' Court. . . .1273-1271 Attorney General, when constitutionality of acts is (juestioTied Ill liovv described in writs. . . 122 dtity to prosecute certain corporations U78 et - Authentic Acts, improha- tion of 22.1 Judgment by default U])on 532 provisional execution of judgnicnt en 501 deposit of a copy when the original is lost 1327 Award to Arbitrators 1431-1111 B. ■IMII MM Bail, in capias matters 85)5), 5)10-5)18 not allowed in certain casjs 840 in matters of habeas cor- pus .120 bail bond assignment of, by sheriir 5)12 Bailiff, costs of service, or of execution 1 !0 cannot serve in cases in which he is interested.. 118 contestation of return .... 23(5 when bailiff may be a wit- ness 320 seizii -C officer cannot DC a pure iser 0(50 cannot receive more than price of adjudication (50Ii when sei;:ures at a dist- ance are to be made by bail iff" of locality 010 subject to coercive impri- .sonment 8;)3 execution of capias by 907 Bailiff.— not permissi))le to art as attdrney before (Commis- sioners' Court 1273 i..enetitoflnventory,1405-14lO Biu'(iin<>^an of iinmoval)les 735-7(ii) iti case of licitation lO.'.ii liills and Notes, may be seized (ill how sold (Kit; judgment by default nuiy be rendered ' 53l! denial of signature by alH- davit 2(IS procedure in summary ac- tions based upon .' . . .Ib'O Boundary actions. . .1055)-IO():5 wlien such actions lie lO.VJ duties of surveyor named by the court KXiil more than one surveyor may be named lOi'vl fixing of boundaries and otlier proceedings lOO;} INDKX. 249 c. AIM'S. Capias a»?rti<»rari (Mrciiit Conrt j and Sn,»ei ior ( 'onti have foncurrent jnrisilicl ion . . r»7 form of writ, when it mav he ol)tained 12!)2 12!)1 its (contents, service ;ind ■ ellect I'iiJoet s. ' notice must- he jjjiven to I adverse party 1303 appearance of adverse ])arty and inscription 1304 ' jndii;ment .... 130.") i no revision or appeal al- lowed 13()[) i procedure in other cases ! of 1307 I no certiorari from Ma^is trate's Court 1290 Challon^^o ol'.juror.'^J— ^'rr I J>'.rj/ trial. j Clianjjje oraltoi'iieys.^")!), 2()r) j execution on immovables. 1147-11 IS all cases are determined in a summary manner, ...111!* wlien jiinount involved does not exceed $25, de- cision is according to eijuity llli» Civil KX. »> r)i A ins. ('<)(l«' of'Civii l*i'o<'r rot urn . . 'l'.\{\ < 'ontos(<-i(ion of (ho ac- I io!i I() I et s (^'Ooi-i'i v<' ini|U'isoninon( . |(enal»y jirovided, in jiidi- eial abandonment ShT in niandamns (;ases 1001 in certiorari cases i;i()2 refusal of witness to ans- wer or produce ;5;{0;{;5M for resist inj:; seii'aire <)20 ConiniissioiKM's — 'I'o ex- amine witn<'sses ,'iSO for takinu" adidavits 25 appointed in other j)rov- inces 2() aj)pointed o>itsi(ie of ('an- ada llai'l»oi' ('ommissi(jners' jurisdiction <».") ('oniinissi(>n certilicate of execution and rerurn |{S7 l»y whose dili^^ence it must be executed IISS-IJSl) ellect of failure to i-eturn commission ;>!H) < 'oniniunity At lachmenl ajj:;ainst mle jiiopertv of, by wib- ' 1102 in\('n(ory of liJSS (Companies W'ri Is of sum- mons auainst 1 lO-l 12 foreign companies, how summoned 1411 sei/ui'e and sale of shares in (vJl. (512, («)() ])roceedings against those exceeding their i)OwerH.t)7S-9iM) attorru'y - general may prosecute ... i»7S secur'ty for costs 07!> mandamus against . . .J)02-1(K)1 (Compensation — Form of l)lea 2():{ court may ntat ion of tini«% how ro<;kon«'tl S) 10 (/onc;]usions - ( 'ourt can- noi ad.judicate beyond, but may reduce 1111 when they may be cor- rected, nu)dilied, &c 522 (^onfoHsion of .jiKl^'incnt When defendant may niaUe 527 what if defendant not known to prothonotary .. o2S procedure if plaintitt ac- cepts 529 252 INDEX. i •■ CoiifeKKlon of Jrdjfin't. ahts j)rocedare if ])l}»,iiitiir re- fuses to aecept oliO rule as to costs upon ").'!() in ('onunissioners' ('ourt.l^Ti") Contiilonoo — Professional witnesses cannot be com- pelled to declare 'XVl ConHrination of titlo 1()()7-1(1SH CouiioilH, Family.... i;«l-i:{:«; Conservatory a 1 1 a c h- ineiit ir)r)-{).")() ConsortH— As witnesses... 'MA C o 11 8 1 i t u t i o iiality of HtatiitOK Notice to at- torney-general Ill Continuance of Huit — When chanf^e of civil status of j)arties does not retard suit 2(5(5 when case is deemed ready for judgment i'GT attorney aware of change of status must notify op- posite party ' 208 rule in cases not ready for judgment 209 who may continue suit... 270 how continuance is effect- ed 271 continuance may be eon- tested 271-272 rule, if parties interested do not cont inue 2T^ Coroner— Serves writ in- stead of sherifr, when ... . M5 prothonotary acts for him in certain cases ',M\ liable to coercive impris- onment. HiV.\ registers of 13i8 Corporations — Appeal to Court of Review in mat- ters concerning municipal 52 foreign corporations may sue here 79 plead in their corporate name 81 description of 122 service upon 142-143 service in another prov- Corpor.1t ions.— auts. ince 2i;{ peremption against 281 agent summoned as wit- ness 280 how answers to interroga- tories are given by 303 seizure of shares i\\\, (5(57 declaration by, in garnish- ment cases ()84 proceedings against those exceeding tlieir powers.. 978-991 (See coin panics.) Costs— In fornui pauperis. 92-93 execution for 93 discretion of court 172 security for 179-182 in qui f\ capias for unli(i[uidated . . 899 simple attachment for un- liquidated 939 Days— Non-Juridical 7-8 rule for computing 9 10 holidays 10 Dear Mutes 319 Death— Of debtor 005-007 of parties in appeal 1220 of parties or attorneys {See continuance of suit). . .2t5()-271 Dt'beiitures- May be seiz- ed Oil how sold 01)0 Debtors— Examination of, after judgment 590-593 Declaratory and inter- pretative provisions.. 1.39 Declinatory exceptions. 170 172 Def.uilt — To return writ.. 1.54 effect of 102 103 to answer interrogatories. 3(54 l)ro()f of hearing 418 in jury trials 4(53 judgment by 532 et s. in opposition cases 0.52 in Circuit Court 1138 in Commissioners' Court. 1275 DeTence— What defendant may plead 190 delay for 197 answer and re|)ly 198 supplementary (lefence or answer 199 grounds of law against, how urged 200 tiling of exhibits referred to in defence 201 rules applicable to de- fences 202-213 pleas of payment, nova- tion, release, compensa- tion or prescription erni«»i' lOiiiiipenr. . . iKJl, !;;>;; Dcst;ri|>t ion ol' p;ii'ti<>H and oh.jecl 122 121 l>ila((ii\v M.vtrcption 177 Disavowal .2."')1-2")S ARTS. DiH(M)ntinuanro 27;") 27^ Dis<'ovcry antioii of costs. . .or^i-'M.'. Distribution <»r money k — levied n]H)n inovahles' .()7() (1711 injudicial ahandonnients HSn in conlirn'ation of title. . . iPSii D I s t vi V I 3lauisti'ate'.s Coni't 12SI-12!)1 Dividend sFu»ets pi'e[)ar- ed by e mat or .Ksti l> inion i>ay, non.jui'i- dleal ' ." 7 Dowei', ( iistoinary, not disebai'^tMl i>y sherifT's Hal<' ' 7s I E. i'aster Monday 7 FJcctnient -- (See fcssor rntd frssec.) J^]|ectioii olMoniieiie l?y party appeaiiitsj; in person SI l)y advocates and alfor- neys SO service t liei'cat- 12!> ity sci/iuHT (.,.^.;li((,I• (;;;(» in written contract oSy lOvoeation l''roin Circuit Court to Superior (\)url •1!>, ii;u> •f ro ni Coinjnissloners' Court 57, 12()S from other courts 12<.)2 Kvitlence— Taking down. Kviden«;e In rebuttal, or- | der of addncin^i; [ilO i who competent to ^iva I lestiniony ;{14 what art^ objections to j credibility of ;U5 l<]vident^c - ascoinniencenient ofproof in writing :jn; party may t:;ive evidence in his own behalf Mp; silence in such case not to be construed a.u;ainst him ;{17 of notaries and witnesess in improbat ion ;{|s of deaf mutes, etc ;5l!i deposit ion in former (rial, when ser\«'s a.s :{|:; takinjj: down o 15 :);")! by stenography, utde.ss otherwise ordered ',]{:) court may order notes to be read to witness :{|i; transcription of notes :{[7 fees for same :i\i dut ies of stenographer as to notes ;]|s correction of notes ;|| •; how stenoo;raj)hers' notes must be deposited ;{H how taken l)efore the court 'M'.i INDEX. 255 l0viivice entail nullity only when not remedied waiver of grnnnds of copies of j)lea(lings, etc., may be amended without leave befon^ service of answer and with leave after answer. (See A nund- meuf.s) 517 J J i la t o /• 1/ Except ion — grounds 177 etlect of, if founded on de- lay for making inventory and delil)erating 17H security for costs 179 security for costs in popu- lar or ijiii tain actions proceedings may be stay- ed until security given. .. for delay to plead until 170 171 171 172 173 175 170 180 181 256 INDEX. KxceptloIlS. — ARTS ' wairantoFH have been call- ed in (See yVorrnnf]/). IKi IHi Exception of DiscuHsion. . HX) | JBxeciition — For expenses i of witness 3IJ0 i returned nulla bona, cred- I itor nuiy obtain exaniina- , tion of debtor HSM) exemption from 55)8riUl) I Provisiondl— Whew it can be had . nUt cannot be ordered for costs 55)5 I cannot nfterwards be al- i lowed if judf^e omits to order 51X) j power of court to refuse or allow in certain cases.. 51)7 Compulsory— Can only be ] etlected by a \N'rit 60() writ, to whom addressed. (501 formalities of writ (502 remains in force while j unsatisfied (50;^. lost writ, alias writ can be obtained (K)4 or creditor may obtain a venditioni exponas of goods seized but not sold. 004 where debtor deceased or status changed ... 605 execution upon property of heirs, etc ()0G when, may be etrected in name of deceased plaintilF 607 of some physical act, how effecled, onicer may use force (508 demand of payment not necessary under subse- qiient execution in same suit (509 In real ucf ions — Writ of possession 610 execution of such writ ... 611 In personal actions— Dehiy for, exception in C(?rtain cases 612 what property creditor may seize ,....,.. 613 Execution.— ARTS. dinv-ront means of, may 1)0 sinmltaneously adopt- ed (ill wheti creditor has receiv- ed part of judjitnent claim, mention must be made on writ ■ (51 "> where prop(!rty is situated more than nine mih'H from plac«; where writ issues.. (Jlii Upon movable jtroperty — seiztire of uiovable prop- erty (517 hours during which seiz- ure may be nuide iS\^ cannot be made on Sun- days or holidays, except. . (51i) proceedings if debtor be absent, and no one to open doors, etc (i-'n depository olleredby debt- or iVl\ guardians or depositaries related to seizing officer in certain degree cannot be appointed (52:1 second seizure in hands of guardian OJ:i powers of guardian and depository (5-1 sufficiency of (52") sheriff" may demand fid- vance for safe keeping . . (iLlii which demand may be re- nevved (Vll rig'it of seizing officer whtre he cannot find suit- able guardian ()2s seizure is established by \w\n\x(,iiii (proces-verbal). . . 6l!!I what minutes must con- tain i'M debtor must sign minutes if present (i^ld seizure of current money. (i'!l minutes must be in trip- licates ; to whom copies given (),'i2-(i;;i where goods seized are of perishal)le nature (i;;; notice of sale to debtor. .. (ii.") INDEX. 267 Execution. — arts. sale of inovabl«^s not to be comineiu'ed before 10 a.m. nor contiiMied after 5 p.m. ttlM ^oo(Ih Neized may be re- moved to place more fav- orable for Hale iVM l)ublication of sale, where an!i certificate of privileges and hypothecs presented by interested party 77o what such certificate must contain 771-772-77:^ change of form of certifi- cate of hypothec 771 no certificate of hvpothecs need be producea in case of resale for false bidding 775 allowance of sheriff 77ti effect of certificate of hy- pothecs 777 Effect of sheriff's sale. (See sherifffi snle) 778 et se<|. Payment of moneys with- out collocation 7u;{ Collocation and distrilni- tion of )no7ieys— Delay for preparing and reporting scheme 7'.i4 what report must men- tion 7!>5 articles of collocation 7!M> duty of prothonotary in making; 7i*7 order of law costs 79S order of collocation of other claims 7!H) conditional hypothecs KM) sum to be reserved in case of unliquidated prior claims WJl hypothecary claims due with a term of payment. . !S02 claims for the capital of life rents 803 INDEX. 259 ARTS. of pur- ...... 7r)S inj? hy- operty, becoin- 7r.\» to deed of HUCh 7(>0 iddinff. . .701 et scM]. 7 bidding; 77.") riir 77() ,te of hy- 777 ale. (See . 778 et Heti. ?/s irith- 7it:{ Hsfribu- )elay for eporting 7114 ast men- 7i».T ition T'.Ki 1 lotary in I'M s 71tS ation of 7i,)it ithecs. .. . ^^^ lerved in ted prior _ _ . H)l lims due ayment . . !^02 capital of Execution.— akts. interest and arrears of rents 804 registered claims and tax- ed costs 804 cases in which the record is insulticiciit to cnahlu the prothonotary to per- form a valuation 80r)-HO()-807 experts appointed to es- tablish value of immov- ables 800 certitlcate of hvpothecs, prima fdcie evi(lence, but may be contesUnl, and how 808 proceedings on produc- tion of ac(|uittance of claim 800 registrar, ofllcer of cor.rt for purpose of certificate.. 810 examimition of persons as to discharge of hypothecs 811 case of absence of former hypothecary creditor. ... 812 delay for contesting re- port of distribution 813 to wliat contestation must relate, must be accom- panied by reasons, and served on party interest- ed 814 inscription of contesta- tion 815 costs of contestation are taken out of moneys lev- ied 816 new report on mainten- iince of contestation 817 to whom the right of con- testing belongs 818 party not bound to answer more than one contesta- tion en same grounds 818 I)roceedings on contesta- tion 819 motion to homologate re- port 820 homologation of part not contested 821 Execution.— ARTjs. Ifotnol(t{/a(i(tn Mow i^r&ut' ed fJ20-822 proceed iiigs, if person be collocated for sum uot due him 823 Sub collocation — Sub -op- positions 824 nnist be served 825 Uiay be inclmled in gen- eral report, or be reported separately 826 if a ^\ of judgmciit in District Magistrates' Court. ..125)0-121)1 Excnifors-'Fore'i^n, can ap pear before our courts... SO foreign, summons 148 imprisonment 8IW-E?t. 261 F. ARTS. I^icts -Which must be ex- pressly pleaded 110 when hold to be admitted 111 assignment of, in Jury trials 424 et aeq. new *^rial for defective as- signment of 498 l'';iotiiiii— In jury trials.... 4(52 for decision ^f questions of law, facts being admit- ted 509 in Court Queen's Bench. 1223 False biddin^^ 701 767 Family Councils. . . .i:«l-i;W6 wlien required 18H1 how composed and con- voked 1332 notice to relatives and de- lay 13;« must be sworn 1334 minutes of, must be sign- ed ...1335 concurrent jurisdiction of Superior and Circuit Courts i;m judge may convoke ?'^ op- positions to niarriage . 1111 Fortje — To eject under writ of jiossession 010 to ellVcr seizure of mov- ables uiider execution ... 020 ForecloKure— From plead- ing to merits notwith- standing preliminary ex- ception 107 such foreclo.sure of no ef- fect if dilatory exception is maintained 109 when warrantors are call- ed in 189 arising from default to plead 205 when judge's order is nec- essary... 20(5 issues closed by 214 s. 5 Forms — When those in ap- pendix mav be used no special form required.. 105 Forms —See appendix. ^— On a deed of sale (123) on a deed of ol>ligation on a bill of exchange against acceptor on a bill of exchange against acceptor and drawer on a promis.sory note on a promissory note against maker and indorser on a private writing on an account 5— publication of summons in newspapers (13(5) C— Affidavit by literate person (137) Z)— General denial (202) £"— Defence of payment (203) defence of novation defence of release defence of compensation defence of prescription F— Form of experts^ oath (400) (7— Certificate of oath (400) H— Witnesses oath (4o4) / — Challenge to the arrav (449) ./-Challenge to the polls (15(5) A'— Atlidavit for judgment by default (532) />— Adv. shoriirs sale (71(5) M — Adv sheritr's sale \TX\) N — Publication of notice to collocated creditors (823) d^— Demand of abandonment 854 P— Notice of meeting (8(5(5) ^—Notice of curators' appoint- ment (872) jB— Atbdavits for capias (898) S^ - Adidavit for (!apias (IK)1) 7'— Provisional bailbond (910) rZ-Bailbond (913) F— Petition of right (1012) IF— Notice to Attorney-General (1017) X— Notice in hypothecary ac- tions against unknown pro- prietors (1028) Y — Writ for the sale of immov- able (1030) > -:! 262 INDEX. ;r -'J. Forms.— arts. Z — Appearance of proprietoi' or possessor (1(*;^H) yl^— Notice of licitation (lort) /yZ?-Conrtrniation of title(10(i8) CC — Opposition to iudgnient (1165) />Z>— Nomination of experts 1343 Forms. — Arts. EE-Experts' oath (1344) hF-Report of Experts (1344) (7^^/— Minutes of fi'mily council (134(5) /f/jT - Petition for homologation (1346) JJ-Notice by he!" (1406) I' >.* c. i Garnishment — seizure by 677-098 liow made 078 rules for 079 effect of 080,092 delay to con' est 081 declaration of garnishee, how made and when. .082 et s. whatgarnishea should de- clare 085 seizing creditorentitled to put (jue.sLion8 08G tax of garnishee 087 discharge of garnishee. . .. 088 judgment against garni- shee 089 moneys payable condition- aily 690 default of garnishee to de- clare 691 contestation of declara- tion 693 what if several attach- ments? (594 rule when garnishftient affects movables and ne- gotiable instruments ..6''5-(596 Garnishment- attachment of wages and salaries 697 attachment of partner's interest O'.iS in Commissioners' Court. 12(50 et s. in Magistrates' Court 1288-1 2S! I Gaspe— Special provisions. 3!) Good Friday 7 Guardian — Offered by debtor 621-0::i if second seizure, same guardian O'i'i may remove effects. 021 signature of, to inventory 0;i() triplicate of inventory given to &'d notice of sale to 030 must produce effects 0.")7 under compulsion ('"i^ discharge of O.'ii tax of oiiicial guardian : . Oi'iH coercive imprisonment . .. 83:? H. Hypothecs— Appaals inac- tions in recognition of. ... 44 not discharged by sheriffs sale. 781 certificate of, filed witli sherill's return ... . 709 discharge from 1007 registrar's certificate filed for confirmation of title. .1072 Hypothecs— collocat'on if conditional. 800 due with a term 802 defined UKS execution when immov- able is surrendered 11 tS Hypothecary Creditors— (See Confirmation of Title) 1067-1US8 Arts. 1 (1344) perts (1344) {•mily coancil homologation '• (1406) vages and ..'. 6!>7 partner's bits rs' Court. 12(50 et s. Court 1288-12S'.) rovisions. li'J Tered by (521-6-- re, same &i:\ ^cts. i'yi\ iiiventory ();{() inventory 6'.V1 (5:].} ilects (5.")7 on ('~>''^ ().•'.» lardian: . ()•'!' )nment . . . S'S^ nditional. 8(iti I Wl l(»s,s 1 immov- red 11 1'^ •editors — n of Title) 1067-10^^ INDEX. 263 ARTS. Hypothecary Recourse— Against immovables whose owners are un- known 1025 10:^6 Husband and Wiife— Com- petence as witnesses 314 separation between 101)0 et s. Habeas Corpus ad subjic- iendum— Nature of writ; when and how obtained. .1114 to whom addressed 1114 attldavit for 1115 formalities of ; return of. .1116 Service 1117 dieobedience to \yrit 1118 procedu re before j udge . . . 1119-1121 bail 1120 written pleadings may be ordered 1122 costs 1124 if writ refused, when and how new application may be made 1125 ARTS. HarbourCoinmissioners 65-66 Heirs— Service on heirs of deceased person 135 delay for making invent- ory and deliberating. ..177178 execution against (505(506 ( ( Vide Seals, Ini'entorj/, Let- ters of Verification.) Holidays— What days are. 7-8 persons cr.nnot be sum- moned on 125 but leave may be granted 125 courts cannot sit on 14 where seizure may be made on 619 arrest of debtor on 841-842 Homologation— Of report experts, etc 414-416 report of distribution 820 of report of arbitrators. . . 417 of award of arbitrators . . . 1443-1444 I. lies de la Madeleine- Special provisions . . 39 appeals 45 Inimovaoles— Description of in declaration 124 execution against (59$) et s. belonging to minors, sale of 1341-1:^(51 ditto when property ex- ceeds f?400 in value. .1341-1356 not exceeding $4(X) in value 1357-1360 Imprisonment — For de- teriorating immovable under seizure 715 See Coercive Irtxprison- ment 8132 et s. Improbation 225-235 as a principal action and incidentally 225-226 procedure 226-229-230 et s. deposit of sum fixed by judge :... 227 Improbation— when and effect of peti- tion 228 witnesses 318 in Commissioners" Court. 12(591271 Incidental Demand. ..215-219 in Court of Queen's Bench 1237 In forma pauperis 89-93 Informalities — How ple- aded 174 how amended 513-526 In,) unction— When inter- locutory injunction may be granted 957 when it cannot be grant- ed 958 additional, after interlo- cutory 959 petition for, and affidavit. 9(k) when notice must begiven 961 procedure after petition. . 9J2 securitv required 963 what injunction orders. .. 964 264 INDEX. ■■n ti i i Injunotioii— ARTS. service of. 9(j5 recourse, vvlien granted without notice 9(56 suspension of IMiT f lal judgment !)(>?, eiFect of appeal or revision SWil) special powers of judge. . !)71 ])enalties 1)71-972 Inscription -for proof and hearing in contested cases : 293 prothonotary's role 294 copies of pleadings and money deposit 295 notice 290 in Circuit Court, cases not appealable 1140-ll41 in Circuit Court, cases ap- pealable 113S in summary inatters.1158-1159 for proof b}' default or ea- parte 418 hearing in law only 510 for judgment by default or ex parte 532-588-534 for judgment on confes- sion ol judgment 529 contestation of colloca- tions 815 Inspection of I) o c u- ments {Disco renj) . . . 280-290 Inspectors to judicial abandonment 800-807-878-879-885 Inter(llcte 480 verdict does not pro- nounce on costs 488 clerical errors 489 illness of juror 4iK) judgment after verdict. . . 491 remedies against judg- ments, and proceedings in revised cases 492-497 grounds for new trial 498 various grounds for new trials explained 499-507 ditl'erent judgment may be rendered 508 wgm 266 INDEX. L, ARTS. lijinds— Description of 124 place of trial concerning.. 10()-10:i partition of lOM confirmation of titles lOi'u (See J )U)no cables.) Liessor and licssee — Juris- ( tion of Magistrate's Court 02 lessor may oppose seizure of lessee's ellects 640 attachment for rent .952 et s. actions between are sum- mary 1150 class of action and juris- diction, liow determined. 1152 delay on summons 1158 special proceedings : no- tice to quit and ejectmentlGHl) Ijctter.s Patent — Annul- ment of by Sup. Court.. 1007-1010 Letters of Verification 1411-1421 in what cases 1411 petition and allidavit. 1412-1413 acts of civil status to ac- company petition 1415 contestation of petition. . 14161421 liieitation, Connpulsory Partition and— co-heirs liieitation — arts. and co-proprietors may sue for UYM all the parties must be in suit io;{s special tutor to minors . ..10!',) experts advice as to divi- sion of property .1040-1041-10^ drawing lots for shares . . 10 1:5 practicien is-named 101 1 sale by auction, when. . . . 101") voluntary licitation..l046, liru notice of sale and publica- tion 1047 ets. oppositions 1050-10.")! bids and final adjudica- tion 1052-10:):i effect of adjudication lOot I purchaser failing to pay price lO.V) delay for filing oppositions for payment f lor)(i distribution of moneys. . . 10.»7 licitttliuu of iin movable situated in two districts. .lO.ls Liquidation — Judgment granting damages must contain 512 likewise judgment con- demning to restitution of rents 513 lies Pendens — Exception of J7;i M. V Mandamus— When it lies. 992 how writ cf summons is issued 993 how peremptory writ .... 996 service of 997 for election to ofttce. . ..i)98-999 return of writ 1000 coercive imprisonment. , .1001 fine of $2,000 if corpora- tion 1001 Marriage, opposition to . . 1105 ets. Marriage — formalities of 1106-11(19 in appeal are summary.. .1112 Married Women — Des- cription of, in writ 122 service upon #. . i;i3 Mariner— Service of sum- mons upon i;52 Masters and Servants — Jurisdiction of justices. .. ()3 jurisdiction of the Re- corder i INDEX. 267 ARTS. ors may I():i7 lUst be in 1();{H minors . ..1U:«> ,s to (livi- .1040-1041-10 !2 c shares . . 10 1:5 ned lOll when 101.) tion..l040, 13.').") id publica- . , 1047 et s. lOoO-lO.")! adjudica- 1052-10r):5 cation 10.") I ng to pay 10.).) jppositions .., 10.")(1 moneys. . . 10.')7 liiikiiuvable districts.. 10.")S udgment iges must ot2 nent con- ititution of 513 Kxception ...... 173 1106-1100 immary. . .111- en — Des- A^rit y^'^ ^.. 133 ce of sum- 132 ervants — justices... ^'3 f the Re- ... -1 Masters and Servants arts. summary matters 1150 Member orJLeglslature - service upon 147 .Meeting of Creditors. . . . HIM) Minor— May sue for vvages.1203 sale of property 1341-1301 .sale of property not e.\- ceeding .'i54O0 1357-13()0 M i n u ^ es — Replacement when lost 1327 et s. Mixed Action — Where tried 100-103 Montreal — Appeals from judgments rendered there 47 review of judgments there 53 Motion — Preliminary ex- ceptions urged by 1(54 ARTS. Municipal Corporations— bailiff's retuins, etc., con- tested by 230 for judgment on venlict.. new trial, or diderent judgment 494 dismissal of opposition by 051 exceptions urged by, in ap- peal i220 Movables— Seizure of.. 617 et a. (See Execution.) Mutes— As witnesses 310 Municipal Corpor- ations — No appeal from judgment con(!erning.43, 1006 review of judgment con- cerning 52 (See Tawes) N. Nei^otiable Instruments (U 1-642 (See Notes Proiiiissory) New Trials 408-507 (See Jury Trial) New Years Day — Non- juridical 7 Non-appearance 364, 463 in Circuit Court 1138 in Commissioners' Court. 1275 Non-contentious pro- ceedings 1308 et s. Non- juridical days— En- umeration of 7 next juridical day 8 court cannot sit on 14 Notaries — May conduct non-contentious proceed- ings 83 witnesses in improbation cases 318 must give communication of records, etc 1320 choice of, in making of inventory 1390 Notes— Pronissory 541 judgment by default on. . . 532 may be seized (541 Notes — how sold 0(56 in hands of garnishee. . . . (505 ai^Lions on, are suuimary .1150 Notice— Of action against public officer 88 to Attorney-General (con- stitutionality of statute). 114 of tiling of exhibits 155 of inscription in law 194 of decease, etc., of one of the parties 268 of inscription for proof and hearing .296 of inscription in default and ex parte cases 418 of amendments made or to be obtained 524 of plaintiff who refuses to accept confession of judg- ment, 530 of inscription for judg- ment ex pai'te 534 by opposant to sale of movables, that opposition must be contested within 12 days 650 to suspend seizure of mov- ables of insolvent 871 ^68 INDE^i. Notice— ARTS. in njiitters of petition of rij^ht, to AtLorney-Geii- eral 1017 of inscription in review.. HUH of inscription in appeal and ^ivinji security 1213 of inscription for proof and hearing in the Circuit Court nil of inscription in law in summary matters 1 157 of inscription for proof and hearing in summary matters 1150 of petition for cirtiorari.VlS^h Novation — Plea, form of, Sched. E 20;i ARTS. Nulla Bona— Examination of the debtor where return of 5i)ii sheriir's return of, wliere no immovable^s 7()S opposition to j\idgment nmst be made within ten days from rt'turn of 1 1(>'> \iiliity— Not entailed by non-joinderof party, if er- ror amended 521 irregularities causing pre- judice, entail nullity only wiien not remedied 17") waiver of irregularities . . 170 when nullity of seizure may be demanded 045 o. ••(■-t Oath— Powers of court or judge asto 22 right of judge, prothono- tary or commissioner to administer 2H form of, may be changed according to religious creed of witness 322 by Quaker 321 refusal to take, by wit- ness 323 what witness must ue- lieve in order to make. . . . 324 put by the court 371-372 administered by examin- er of proofs to witness 377 to experts, liow adminis- tered 401 experts may administer. . 404 Object of Demand— How described in writ of de- claration 124 ObjectioiiH— To incrimin- ating questions 381 reserved for hearing at the trial 355 to judge's charge to the jury 473 Office of the Court -(See Prothonotary) Meaning of the term 5, § 7 Office of the Court- election of domicile at. . .84-Mi service of absentee at .... ^") inventory of seizure when left at..." 0:33, 707 copy of declaration left at, in Caputs . . . 1)(H' Ontario — Attendance of witnesses residing in, com- pulsion 200-3(10 service of subpatut in ... . 301 costs of such service SHS Oppositions — To judg- ment, when it lies 1 1(>'? what it should contain. . .lldl affidavit 11<'>'> delay to make 1 l oppositions to secure charges {afin de diarye). . 724 who may make 724 and w'hen 725 opposition to charges up- on immovables under seiz- ure 726 to seizure and sale, must be accompanied with affi- davit 727 must be served on sheriff 72(S delay for serving 728 filed after period for delay 728 effect of service of 729 sheriff is bound to return with all papers 729 sheriff bound to continue publications, etc., in spite of 730 proceedings upon, in other respects same as opposi- OppoHitionN— ARTS, tioji to sale, etc., of mov- ables 731 liability of party who makes, unsuccessfully. . .. 732 when decided before day fi.xed for sale 733 when decided after 7IW sale under vend it ion i ex- ponas cannot be stopped by, unless 734 I'or Payment — Register of , 78i) when necessary to file. . . . 7JfO no costs allowed in cer- tain cases 7jil with whom and in what ilelay should be filed 702 To lieitations.. . 1050-1051, 10.5(5 To co)iJir)nafion of title. . 1074-1075 To marriof/e — Where brought 11('5 must be accompanied by notice 110(5 upon whom served 1107 proceeding same as l)e- t ween lessors and lessees. 1108 if not presented on day fi.xed, judgment of non- suit uiay be (.^btaiiunl. . .1100 are declared abandoned if opposant fail to i)roceed. .1110 court may summon par- ents or friends of intend ing consorts 1111 appeal or review 1112 costs where dismissed.. .1113 in Commissioners' Court . 1282-1 281i Option — For trial by jury. . 422-423 of plaintiff between in- compatible claims 177, § 6 Order — Maintenance of, during sittings of court. . 17 et s. . Order of trial antl ad- jotirnnient 301 311 Original Of an authentic act, loss, how supplied. . . 1327 et s. 210 INDEX. P. ' » A RTH. l»anel— (See Jiiri/ Trial). . . 4M3 et s. ParHoiiaijes -Asht'Ssments for buililin^ iind re])air- iiig, wluTe Hued for 54 Partition — Compulsory', and licitatiou. (Sci; Licit- ((fio)i) 10:^7etH. 1058 PartiierHliip — Coinnier- cial, how Huminoni'd 122 servi(!e upon, how effect ed 13i) Pauperis, in forma— J'ro- ceedin^H iu forma 81) i);} when party may obtain leave to sue or plead in . . . 80 certain costs, however, must be paid by party 89 pernjisaion is granted by petition 90 when leave may be re- voked by judge 91 other party cannot be com- pelled to pay costs upon incident in suit before final judgment 92 liability of other party as to costs 98 execution for same 98 Payment or tendei*" into Court— (See Tendei-) .nS',i et s. Payment— Plea, form of. , 203 of moneys levied upon movables (i70 et s. payment without colloca- tion 793 demand of, not necessary under subsequent execu- tion in same suit 609 of moneys levied (See Exe- cut ion) . . 828 et s of moneys of debtor who has made an abandonment of property 880-881 by garnishees into court of moneys seized 694 of funds in compulsory partition 1057 Payment— arts. of funds in action of rati- fication of title lOHi Petition — In revision of judgment by default. 1175-117(; in revocation of judgiient (See Jiuff/nient) 1177 et s, for separation from bed and Ijoard, 1)V wife to be allowed to use IKM for sale of immovables of which the owners are un- known 1025 et s for mandamus 99;{ for release from arrest under capias 919 et s. Penalty— For infraction of taridby oflicers of justice. 37 appeal to the Circuit Court in matters of penalties under the Miinicipal Code TjS cannot proceed in forma jHiuperiH to recover 8',< Commissioners' Court has no iurisfliction in matters of GO jurisdiction of District Magistrates' Court 01 for disobeying injunction. 971-972 for disobeying mandamusKMlI and prohibition 100") Peremption of Suits — when takes place (two years) 27!t when not 2Hi against whom 2SI how obtained 2S2 how covered (useful pro- ceeding) 2K5 effect of 2^^} powers of court as to costs 285 in Court of Review 1200 Peremptory Writ — Of mandamus 99G-1001 Perishable Goods OIU Personal Actions— Venue ..94ets., 1U3 INDEX. 211 ARTS. 1 Petition of Ill«!it -Writ of possession where sup- pliant is adjudged, im- nioval)les l()2li mode of recovering mon- eys adjudged to sunpliantl024 when may be addressed to Her Majesty 1011 tenor of petition 1012 petition must be support- ed by aHidavit 1013 ])etiti{)n must be left with Provincial Secretary 101 J no fee 1014 procedure where lieuten- ant - governor's fir', ob- tained 1015 written proofs -must be tille4 vvith petiti«n in pro- thonotary's oflice 1010 deposit of $200 1010 copy of petition and flat left at oflice of Attorney- General 1017 procedure where contesta- tion-filed 1018 where not filed 1018 where petition relates to recovery of property granted away or disposed of by Crown 1019 inscription in appeal 1020 costs 1021 attachment in revendica- tion of property, govern- ment is adjudged to sur- render movable property . 1022 Petitory Claim — Cannot be joined with possessory . 1006 Plaintiff — How described in writ of summons 122. proceedings when absent (See Abseiit) preference of, on proceeds of sale by execution 672 purchasing at sale under execution may retain pur chase money 750 Pleas and Pleading— (See also Exceptions, etc,) — PloaN and Pleading— arts. Pleading cannot be in the name of another 81 general rules 105-1 IH facts and concbisions must be concisely stated, 105 dates, numbers and <|uan- tities may be denoted by figures 106 form of reference to an act 107 allegations must be para- g.apl.ed,etc 108 admissions and denials. . . 100 repetition of allegations in subsecpient pleading. . . 109 facts which must be ex- pressly pleaded 110 facts which are held to be admitted Ill atlidavits, forn» and con- tents 112 copies must be served .... 115 service out of the district. 11(5 PreHminary Plats. . . 161 et s. Pints to thrnierifs—lHsne of law 191 how issue of law raised.. 192 how issue joined 192 hearing upon the inscrip- ti 1 19:^ issue of fact cannot be in- scribed before judgment on the inscription in law. 195 what defendant may plead 196 delay for filing defence. . 197 delay for ar wering and replying 198 additional pleadings 198 supplementary pleas 199 grounds of law, how urged 200 grounds in the nature of preliminary exceptions, how urged 200 exhibits, filing of 201 party must answer his op- ponents' allegations cate- gorically 202 general denial excludes other pleas 202 pleas of payment, nova- tion, release, compensa- m 272 INDRX. 1 i.4 ■> t I*leii8 and Pleading— arts. tioii, fonn of Wi , Hineiidcd pleading, delay to answer *. 204 forecloHure from pleading 205 2(>«-'J()7 denial of signature, atlida- vit re to action on foreign judg- ment 210 to action on judgment in other provinces .. .211-212 2i:i dohiys for, in interven- tions 224 atnendments to 514-52(5 delays for pleading in Cir- cuit Court li:50 Pledge— Pledgee may op- pose execution 64i') PosHession— When may be obtained 010 execution of writ Oil of goods seized before judgment 938 of goods revendicated. 04U Uol how se(|uestrr :or put in possession 07(5 of propert} /hich the government Iwts been con- der med to return .... 1022-1023 In Successions {L' envoi en possession) — How and where applied for 1422 act of notorietv to accom- pany petition, now made. 1423 can only be granted after certain public notices 1424 proceedings on claims and petition same as upon or- dinary suit s 1425 Possessory Actions— Pro- visional execution may be had in 594 who may bring, and a- gainst whom 1064 Possessory Actions — art>. limitation of KHw; netitiory claim cannot/ be joined with, or be brought ui til satisfaction of judg- n .'Ut in, exceptions l(Kiil I'owers and Juristliction of Courts 40 et s. Power of Attorney— He- quired from absent ph -- till' 177 sj)e«'ial in Incidental im- probation 2:^<) in case of recusation 2i:{ of disavowal 2rtM of confession of jus7 Publications and Adver- tisements,— Of movables seized QSH-Ca) of immovables seized.. .716-721 for collocated creditors. . . S2;i for creditors of insolvejit. sOi; sheriffs sale 716 7:13 curator's appointment s72 Purge des Hypotheques. {See Ratification of 2'iile).h)G'i Q. Quaker.— Oath" of 321 Quebec— Review of judg- ments at 53 appeal from judgments rendered at 47 petition of right in dis- trict of 48, J015 Queen's Bench,— Courf of {In Appeal). Jurisdiction of 42, 47 Proceedings in Appeal to 1209-1210 where appeal is from inter- locutory judgment.. .1211-1212 inscription in appeal 1213 security, and how given . . 1214-1215 transmission of docu- ments and record 1216-1217 Queen's Bench- appearance in appeal 1 when respondent can ob- tain discharge of appeal . . 1 exceptions which respon- dent may set up 1 reduction of security 1 when appeal may be join- ed 1 factums 1223-1 hearing 1 who can institute appeal.. 1 what constitutes a quo- runi of Judges in appeal. . 1 recusation of Judges 1 competency of Judges 1 when incompetency ap- pears on face of record. ... 1 when Judge of Superior m 220 221 222 224 •13 220 i 22? 22.< I 22!1 ■m INDEX. 2Y5 [Queen's Bench— arts. Court can s-it in appeal and powers of 1281 ct scq. interventions and other incidental proceedings. . A2'.il ju(]f?ment, how rendered . 1241 discharge of order for ad- visement 1242 adjournment 1243 where judgment may he rendered 1244 what judgment must con- tain 1245 taxation of costs in ap- peal 1246 execution'of judgment. .1247 general powers of Court, 1248 Juostions. — Witness not hound to answer incrim- inatory :i31 Questions — arts. must not be leading, etc. . 31^9 Q Jest ions of Law. — May !)o submitted to the Court in certain cases 509-512 Qui Tain Actions. — Sec urity for costs in 180 cannot be had in formit p(( iiperis 80 Quorum. — Of judges in appeal 1227 Quo Warranto.— (.sVr Ps- iirpufion of public o/' vov- porate offices or fran- chises). . .' 987 <7 sen. review in matters of n2 appeal 10(XJ R. ^lailway, — ^ Summons of certain, companies 144 seizure of, minute of . ... 700 notice of sale of railway. . 718 where railways must be .sold 741 how described in sheriffs deed of sale 760 latiftcation of Title.— (See Conjirinatioii of Tiffe) 10(i7 leal Action. — Venue of . . . 100, 101, 103 {ecord.— Transmission of, how effected 31 leeorder's Court -Juris- diction of, limited to er- tain localities 40 jurisdiction of . . 64 (56 remedy by certiorari 1292 et s. lectiftcation ■ (See Execution). . < sf(],| contestation of rw . " examination of witnes. • 81 homologation of 820 S'21| of Expc.ts (See Expert f<) 406 et sr/.i of accountants. . . . m Requite Civile. — (S<'f Judgment) 1177 et .s(q.| Resale for False Bidd U\f^.—{FolleenchfTe.) When and how demand ed who may demand ii' plain tiff fail to ■'■ proceedings to be sum mary >}] purchaser may prevent, '^i liability of false bidder.. 76o, (6 INDEX. 211 mt^ are seized ' :;are chftr seosary for se- rents 7ii| rrears of such 7!«)| rifFssale in re 1 rents "SI ow collocated . . flules of Practice— When abrogated by the present Court 1 for Court of Q. B forS. C. andC. Ct :: nmst not be incompatible with tlie provisions of this Code 7 when they come into force 7 must be registered 7 and notice to that efrect posted up by protlionotary 7 See Special Index, page. '.".ii s. Siijjuonay — Exceptional provisions concerning.... 39 Saisie arret aprcH Juge- inent — (See Seizure by (Utrnishment) 077 et s. . Saisie arret avaiit Jiige- inent — (See Attachtnenf be/ore Jiuhjvu nt). . . .931 et s. Saisie Conservatoire — Quand en peut y avoir re- cours 955 I)rocedure 95(5 Saisie Gagerie 952 et s. Saisie lleventlicatioii . . . 940 et s. Salary or AVages — Gar- nishment (See Seizure by Gam ishnient) 097 exemption from seizure . . 599 minor 14 years old can sue for, before Commissioners' Court 12()3 Sale— (-See Execution.) Of Movables under Exe- cution — Hours for con- ducting (536 takes place at time noti- fied 655 new notices if retarded or no bidders 655 effect of dihitoriness of first seizing creditor 656 guardian, etc., must pro- Sale— duce effects at time fixed for proceedings to .ompel guardian to produce el f ects tw guardian entitled to dis- charge ; mention of etrects not produced («i seizing officer cannot bi( or purchase (ift minutes must be made of each bid (j(i adjudication andpaymer.t (* officer cannot receive more than price of adjudication % must not be for more than debt unless debtor con- sents (it) debtor maj' regulate order of selling % effect of adjudication (i debentures, notes, shares, etc., are sold in the snine manner as other property of debtor no demand to annul, can be received, exception. . . . ^i costs of, must be taxed at once lit of immovables under ex<- cution (See Execution). . . 69'J et INDEX. 279 Sale— ARTS. how suspended 721 of property heloiming to minors and other dis- qualified persons . . . .1341 et s, person charged with sale must report and return into Court 1361 of inventoried effects— Hy consent of parties sale may be proceeded with at once; .r> valuation then neces- sary 1396 date of, public notice 1399 takes place where effects situated and for cash, un- less, etc 1400 by whom efTected 1401 presence of persons inter- ested 1402 minutes of 1403 notice of, where, co-heirs orco-partitionersare min- ors 1404 Scire Fa,cias— (See Letters Patent.) 1007 et s. Seals — Provisional execu- tion of judgment for affix- ing or removing seals 594 collocation of costs of seal- ing and inventory 676, 798 Affixing— On property of succession 1362 commissioner may be named, and how 1363 by whom may be demand- ed 1364 commissioner must draw up minutes, contents thereof 1365 seals, how affixed 1366 duty of commissioner if a will should be found while 1367 if doors are fastened or admittance refused 1368 if after entering house commissioner meets with a declaration of opposi- tion 1369 judge to decide forthwith on opposition 1370 Seals— ARTS, result of references to judge to be certified on minutes 1371 if no movables, fact must be stated in minutes 1372 minutes must be deposit- ed in prothonotary's of- fice ., 1373 second fixing ; when there may be, how effected 1374 Femoral — Applications ^or, how heard 1375 how executed, if affixing be declared null 1376 if two afflxings, when only —can take place ., 1377 delay for, if affixed before the burial 1378 who may demand 1379 how applied for 1380 if allowed, inventory to be ordered, notice necessary. 1381 persons not having *\e free exercise of their rights must be r*' ^resented at. . .1382 how effected, inventory to be made at time 1383 returns to be made 1384 what return must contain.1385 papers and effects found not belongitig to the suc- cession nmst be handed over to proper claimant. . .1386 Seamen— Service of sum- mons on 132 Secreting Property — (See A ttachment. Capias. ) Security — (See Sureties) in appeal to Privy Council,1249 judgment ordering must fix time for offering .559 bond entered into at office of Court 559 Security for Costs— (See Costs.)— ^u popular and qui tarn actions 180 proceedings may be de- layed until security put in 181 application for 182 effect of not putting in. ... 182 of prosecution, of corpora- N gpHm ^r- f 280 INDEX. m Security for Costs— arts. tion, by Attorney-General 978-979 Seduction — Commission- ers' Court has not juris- diction In matters of 00 Seizure — (See Execution) Exemption froin 598-599 By garnishment— {Saisie- Arret)— y^h^n resorted to 077 how made, and tenor of writ 678 debtor to be summoned. . . 678 service governed by rules of ordinary writ 079 farnishee cannot be con- emned by default unless served personally, etc 679 if defendant absentee. . , 679 effect of 680 delay for debtor to plead same as in summary mat- ters 081 delays of contestation 681 when declaration must be made ; may, on notice, be made before return day . , 082 when garnishee must make declaration 683 how . lade by corporation. 684 what garnishee must de- clare 685 creditor has right to be present 686 garnishee entitled to be taxed as witness 687 how he may collect them. 687 discharge of garnishee if not indebted 688 seizing party to pay costs. 688 judgment against garni- shee, must be served, de- lay for executing 689 if moneys are due at fu- ture time or conditionally. 690 penalty incurred by garni- shee who fails to declare, relief on paymenc of costs. 691 effect of judgment on gar- nishee's declaration 092 delay for contestinggarni- Seizur*^— arts. shee's declaration, must be served (B3 contestation otherwise subject to ordinary rules of suit !>4 has in his lovable ef- nble paper, ()!)5 E proceeds of ()!)() ivages (i'.'T tweenCon- n bed and jperty only, !H1 - Authori/a- e necessary ig suit 10! 10 suit for, may 10111 II summons, ons must be d how l;i)2 of movabl comnunitv, e an( . effect- l(i!)3 defendant in suit for .1(»!)4 an not be onfession. . .lOD.i may deter- of plaintiir..lO!K) must be in- at delay by 1097 adgment...lOS)8 !)oar^— Jur- 1099 led in same 1 suits, ex- IKX) minariesto 1101 movable ommunity, ; and eflfect- ARTS. Separation betw'n Consorts ed, revendication of wife's movables 1103 provisions of trial, judg- ment, execution and pub- lication of suit for 1101 Sequestration. — Provisio- nal execution may be }iad in judgments of o04 sequestrator when ap- pointed to receive re- venues of immovable under execution 713 demands for, how made, court may order siio rnotu 973 nomination of sequestrat- or • 074 sequestrator must be noti- fied of his appointment, etc 975 sequestrator must be sworn 970 if appointment or admin- istration be hindered by violence 977 coercive imprisonment of sequestrator 833, § 2 Service.— Of all proceed- ings 115 of writ of paper out of the district, how made 116 of writ of summons... .125-150 Sundays or holidays 125 hours for effecting 126 how effected 127, 128 at elected do.aicile 129 on defendant residing in same domicile as plaintiff 130 on several defendants 131 on mariners 1 32 on wives. . V,^ on wives, separated 13J^ on prisoners 134 upon heirs 135 on absent defendant 136 on absent consort 136 in another province of Canada 137 on church fabriques, etc. . 138 on a general partnership . 139 Servioe- ARTS. on an unincorporated joint stock company 140 on company without a known ottlce 141 on a body corporate 142 on foreign companies and executors 143 on foreign companies which control or lease rail- ways, telegraphs, etc., ex- tending to or passing through provinces 144 judge may shorten or ex- tend delay in certain cases, orsrder other mode of service 145 fraudulent evasion of 146 in church, in court, or on the floor of the House 147 on whom bailiff cannot make 148 delays of 149 defendant may compel, within certain delay after issue of summons 150 what return of, of sum- mons must contain 1.53 on corporation in another province in a certain case 213 of intervention 223 of reasons of improbation 2^32 of amendment, delay. .523, 524 of new defendant joined in action 525 amendment of irregular. . 526 of judgment, when neces- sary 547 cost of 558 of opposition upon bailifl or sheriff. 648 of garnishment 679 of duplicate of minute of seizure of immovable 707 of opposition to seizure and sale of immovables. . . 728 of demand of abandon- ment 8513-857 of attachment before judg- ment 936, 937 of attachment for rent 594 I 282 INDEX, Service— arts. oi orJcT granting injunc- tion 965 of fina) judgment upon in- junction 968 of V rit of summons in proceedings against cor- porations by Attorney- General 082 of peremptory writ* of mandamus 997 of opposition to mar- riage 1107 of writ ot habeas corpus ..lin of summons in C. Ct 1137 et seq. of notice of petition for certlornr: 1295 of writ of certiorari and retura 1300 service of judgments on certiorari 1305 of petition for inspection of documents 1329 of petition for letters of verilication 1414 Servitudes . — Sherilf's sale does not discharge prop- erty from 781 opposition to secure, can- not be received 725 Shares.— May be seized 041 how seized 642, 643 how sold 666, 667 inccporations, belonging to minors, substitutions, etc., sale of 1341, 1347, 1356, 1353, 1357 Sheriff*. — Coroner acts in his place, in certain cases. 35 if, also coroner, prothono- tary or deputy acts 36 cannot bid at sale 748 notice of revision of jury list 431 venire facias summoning jury 443 et seq. return oi venire facias by 446 when property must be sold at sheriffs office 741 sales by. (See Sheriff's, Sales, Execution) 735 et s. Sheriff— arts. execution of warrant from curator to sell immovables of insolvent 87!i liability of, for sufficiency of sureties in matters of capias 910-911 return. (See lieturn.). . . 768 et seq. Sheriff^s Sale.— (See Ewe- cufion, Bidding aiid Sale) 735 Effect o/.— Conveys own- ership when adjudication is perfect 77S in what condition pur- chaser takes property 779 adjudication conveys all rights and servitudes, but does not warrant contents 780 docs not discharge from servitudes 781 nor from hypothecs re- sulting from seigniorial rights, except 781 emphyteusis, or substitu- tion, or customary dower 781 proceedings if debtor re- fuses to give up property 782-78:5 Vacating. — At instance of debtor, when 781 at suit of purchaser, when 78;") delay within which appli- cation must be made by judgment debtor 78(1 application for, how made ; preferential right of seizing party 787 grounds of nullity may be set up by false bidder 78S Signature. — Denial of, how eliected 208, 20!) Signification.- (SeciS'fviu'ce.) Sittings of Court.— May be prolonged 12 behaviour of persons at. . • 17- IS maintenance of order dur- ing l>< by different judges at same time 32 INDEX. 283 ARTS. Slander.— Suits for, can- not be tried before Com- missioners Court 00 Statute.— Abbreviated ref- erence to 107 questions as to the con- stitutionality of 114 I Status.— Registers of. 1311 et s. I Stay of E.veciit io n .—WhWc j case appealed to Privy | Council 1249 Of Exectit ion.— When and by whomgranted in C. Ct. in non-app. cases 1140 Steno;;;rapher8. — Fees, juage may re(iuire deposit to cover 295 notes :i46-349 Stenography. — Evidence taken by 345 court may order notes to be read to witness 346 Sub-Collocation. — • Upon moneys levied 824 Subrogation. — Judgment against garnishee effects subrogation 092 Submission.— (See Arbi- tration) 1431 Subpoenas.— How served . 301 Substitution.— Rights of, not yet opened, not dis- charged by sheriff s sale. . 781 immovables of, caimot be alienated without permis- sion of Judge 1341 Successions-Jurisdiction 102 Proceedings relating to. — Affixing seals. {See Seals) 13(52 etseq. Vacant. — Appointment of curator 1426 duties of such curator. ..1427 power of such curator. . . . 1428 must account for admin- istration 1429 Suit— Continuance of— (See Continuance.) Mi et s. discontinuance— (See Dis- continuance) 275 rt s. Suit— ARTS. peremption of— (See Per- emption) 279 et 8. Summary Matters— when judgment upon op- position to marriage ap- pealed from, etc., then pro- ceedings are summary. . . .1112 cases non -appealable in Circuit Court are 1 149 what are summary mat- ters 1150 procedure inordinary mat- ters govern in, except 1151 jurisdiction and class of action in lessor and lessee cases 1152 Delays in — Summons in' lessor and lessee cases and in other summary actions. 1153 motion for preliminary ex- ception 1154 defence 1155 other pleading 1156 hearing upon inscription in law 1157 notice of proof and hear- ing 1159 interventions and opposi- tions 1101 judgment in lltJO cases before Commission- ers' Court are summary. .1277 cases in District Magis- trate's Court 1281 Summons — Defendant .sunmioned or heard 82 where, should be taken out in different kinds of actions 94-104 procedure concerning. .117-150 suitsbeforeSuperiorCourt 117 may be in English or French 118 signing, attesting and is- suing by prothonotarv. . , 118 may be issued on Sunday or holiday when urgent.. . 119 remains in force for six months, while unserved. . 120 to whom directed. 121 tenor of 122 wmm 284 iNDftX. Summons— arts. cause of action to be stat- ed 12:^ exceptions in cases of ac- tions on deeds, bills and notes, etc., etc 123 objects to be clearly de- scribed in • 124 cannot be served on Sun- day or holiday without leave 125 hours for serving 120 service of, how effected .127-128 service at elected domicile 129 summons of defendant re- siding in same domicile as plaintiff. 130 of several defendants 131 of mariners 132 of wives 13Ji of prisoners 134 of heirs 135 of absent defendant 136 of absent consort 136 in another province of Canada 137 of church fabriques and vestries 138 of general partnership 139 of unincorporated joint stock company 140 of company without a known oflfice 141 of body corporate 142 of foreign companic s and executors 143 of foreign companies which control or lease rail- ways, or telegraphs, or telephones, extending to or passing through prov- ince 144 judge may shorten or ex- tend delRj mentioned in Articles 13() and 141, or order other mode of ser- vice than that of Articles 143 and 144 145 where defendant fraudu- lently evades service 146 service of, in church, in Summons — arts. court or on floor of the House 147 on whom bailiil' cannot serve 148 Dtldj/H on 149 defendant may compel ser- vice within certain delay after issue 150 amendments to writ of.513-517 irregular, new service of writ 526 In Circuit Court — Service of 11.37 delay upon, in lessor and lessee cases 1 153 delay upon in other sum- mary cases 11513 delay upon, in Commis- sioners' Court 1264 tenor and contents of, in Commissioners' Court 1265 who may serve, in Ccm. Court 12(5(5-1267 In non- contentious pro- ceedings— De}8iys in 130H Superior Court and Court of Review — Jur- isdiction of C. R. in re- served cases 51 jurisdiction of 48-53 evocation from Circuit Court 49 courts and persons subject to superintendence and control, etc., of S. C 50 alone has jurisdiction in matters of Cajnns 894 Supplementary Demand, eic 199 Supreme Court of Can- ada—Appellate jurisdic- tion 41 jurisdiction of 67 Sureties.— (See also Security.) how offered o60 sufficiency, how justified. 561 ground of objection to... 562 sufficiency of, how decid- ed 563 if accepted, bond to be INDEX. 285 ARTS. ' of the 147 ' cannot 14H 149 upe! ser- in delay im rit of.513-517 ?rvice of 520 -Service 1137 jsor and 1153 ler sum- 115;^ Commis- 1264 its of, in Jourt 1265 in Ccm. 1266-1267 ous pro- in 1308 t and iw — Jur- El. in re- 51 48-53 Circuit 49 is subject nee and . C 50 iction in IS S9'l >eiitan(l, 199 of Can- iurisdic- 41 67 so Security.) o60 justified! 561 ion to. . . 562 3w decid- 563 nd to be Sureties- arts. drawn up to remain of re- cord 5(]4 acceptance of, decided sutnuiarily 565 for bail in matters of Capias 916-918 in appeal to Privy Coun- cil 1249 Surrender.- -Of movables or immovabU's, how ef- fected in voluntary execu- tion of judgments 579 voluntary, of an hypothe- cated inijuovable 580 judge must appoint curat- or, against whom subse- quent proceedings are di- rected , 581 powers of curator in such case 582 Surveyor. — Appointment of, lo determine bound- aries 106(J-1062 Suspension of Proceed- ings.— (6Y«v 0/ Procefd- ings .)— By dilatory excep- tion 177 by motion for security 181 by intervention 222 by disavowal 256 by death or change of status of parties 269 T. Tariff of Fees.— Promul- gation of 37, 38 penalty for exceeding . . 37 Court of Appeal may establish, when 1248 Taxation. — Of witnesses by prothonotary 335 how taxation may be en- forced 336 of expenses of answernig interrogatories 370 of costs 554 of witnesses summoned outside the jurisdiction. , 557 ARTS. StiNpenNioa of Proceed in gs. upon execution, by oppo- sition (549 by opposition to seizure of innnovables 729 where sale has already been stopped 654 in what cases sale sus- pended 721 l)y abandontnent of pro- perty, notice recpiired .... 871 l)y opposition in the Cir- cuit Court in non-appeal- abU^ cases 1146 by opposition to judg- ment ,.1172 by petition for review 1176 by petition to revoke judgment 1182 by tierce-opposition 1187 by inscription in review AlW by inscription in appeal. 1214 by appeal to Privy Coun- cd 1249 by opposition in Commis- sioners' Court 1282 by notice of petition for certiorari^ and certiorari 12J)6, 13(K) Swearing. — p]xperts 400-401 witnesses 321-321 Taxation — of service outside the pro- vince 558 of party summoned to an- swer interrogatories on articulated facts 370 costs of judicial sale must be taxed at once 669 garnishee entitled to be taxed as witness 687 of fees of registrar in rela- tion to certilicate of hypo- thec in matters of distri- bution 810 286 INDEX. n Taxation— arts. of shei'itrH costs on sale of iininovubles 776 of costs in appeal 1246 TaxeH. — Opposition not neceHsary to obtain pay- ment of nninic-ipal or school 70() Circuit Court has jurisdic tion to the exclusion ol the S. C. in the matter of school taxes 54 appeal to Circuit Court in certain cases in the mat- ter of municipal taxes 58 jurisdiction of District Magistrates' Court in the matter of municipal an ved writ ot testify 320 ore giv- 321 321 changed religious 322 to take 323 as to re- 324 elieve in oath... 324 ent may 325 cannot ravelling Witnesses— arts. expenses be paid before he testifies 326 preliminary interroga- tions 327 objections to, may be es- tablished by preliminary examination 328 party cannot impeach cre- dit of his own 329 but may prove by others the contrary of what he has said 329 refusal to answer or to produce object may entail coercive imprisonment... 330-333 may object to answer in- criminatory questions . . 331 priests or lawyers cannot be compelled to reveal pro- fessional confidences, nor officers of State secrets of public policy 332 how examined to prove identity of any object may be called on to produce ob- ject of litigation if in pos- session thereof JJ33 is bound to produce, etc., documents in his pos'-es- sion touching matters in issue 334 duty of prothonotary to tax expenses 335 how taxation may be en- forced 336 Costs of depositions where more than five, exami/^ed on same fact 337 Ynay not withdraw with- out permission of the Court . . 338 how examined — 339 how cross-examined 340 when may be re-examired 341 examination of, may be continued from day to day 342 penalty for default in such case 342 deposition of, given at Witnesses— arts. former trial, etc., when may serve as evidence 343 how examined in contest- ed cases 344 taking down evidence by stenography 345 et s. how taken by the Court . . 349 notes of evidence must be read over 350 must sign deposition 350 if he cannot sign 350 alterations of depositions. 351 unauthenticated marginal notes, etc 352 what deposition must first contain 353 Examination of, by con- sent .* 355 examination of witnesses who are ill, or about to leave the province 356 examination of, elsewhere than where the case is pending without formal- ity of commission 357-358 how summoned in Circuit Court in non-app. cases. . .1143 judge majr order, to be ex- amined in another dis- trict 1145 before Commissioners' Court 1278 Commissions for the ex- amination of 380-390 how summoned before ex- perts 404 costs of, when summoned from beyond jurisdiction. 557 Commissioners'Courtinay compel attendance 1279 Writs— Attachment by gar- nishment 941 et 8. attachment in revendica tioii 1021 et 8. attachment for rent .1027 et a. capias 894 et s. certiorari 1292 et s. execution— (See Execution) habeas corpus. — (See Ha- beas Corpus) 1114 et a. injunction 957 ct s. 1.' 290 INDEX. Writs— ARTS. mandamus ....992 et s possession 610-611 of prohibition 1003 et s. of quo warranto 987 et s. of scire facias ./.,... 1007 et s. \ of seizure by garnishment 678 et s. of simple attachment.932 et s. of summons— (See i}um- inons 127 et s. Writ of Venditioni Ex- ponas— Creditor may ob- Writ of Venditioni arts. Exponas — tain when writ of execu- tion lost, etc., goods being seized but not sold ('iii4 of venire facias 418 Writinjyjs— Court may auo motu suppress, etc 2U judgment by default in ac- tions founded on private. . 5:1:; provisional execution of judgments on actions based upon private r)i)4 ^ m ^1 ■i i ^1 ditioni arts. INDEX TO EULE8 OF PRACTICE, Rule Abandonment of Prop- erty — Form of sum- mons to be examined on, No.() Abrogation of all former rules of practice 1 Articulated Facts — De- lay of summons to answer on 46 Account — Action founded upon an 56 AcTE— Motion to obtain acte of the Court, 15' T) ; Affidavit — Commissioner appointed to receive aff". must be sworn 13 Whose affidavits such com. cannot receive 13 Fyling of . . . .with fiat 25 Affidavit or certificate of service — must contain certain specifications... 31 Required with motion, petition or special de- mand 47 With petition relating to provisional execution, in review 8 Affixing of Seals— Op- position made to the 8-1 Atjmentary allowance— Discharge from the pay- ment of the 70 Amendment— Delay to re- })ly to amended procedure 55 Appearance and fiat to ob- tain writ of summons ... 25 nmst be in writing and signed 42 Rule Appraisers— Fees of 87 Ar bttr a tors— Fees of 87 Arrp:t simple— Fiat for Form No. 10 Writ of.... Form No. 15 Attachment — Simple at- tachment, Fiat for Form No. 10 Writ of.... Form No. 15 V. Saisie-gagerie, saisie-arret. Attorneys— Costumes of. . 2 Cannotbe judicial sureties 12 Hours for service upon ... 28 Signatureof documents by 20 When names of. .must be written on the back of the writ and copy 30 Cannot cease to represent without leave of the judge 43 Execution by party in his own name for costs dis- traits to his attorney ; consent of the latter 59 Attornev-(jeneral — Spe- cial mformation of Form No. 3 (4°) Auditors— Fees of 87 Authorities "(legal) — Fac- tums in review contain. . , 4 Award ot-' arbitrators— Motion to homologate (2°) 51 Bailiff— Cunnot be j udicial surety 12 specifications in certificate of service 31 -SBBBS 292 INDEX TO RULES OF PRACTICE. in ■x?yi ' Rule Motion for the bailiif to re- turn writ (11°) 51 Date of service and signa- ture en back of the copy of the writ (2°) Form No. 3 Form of writ of capias, if addressed to bailiffs Form No. 12 Bids in writing— Register kept by sheriff must con- tain mention of 24 Bidders— Costs and lawful disbursements which they must offer ; security 76 Breach of order or rule of practice 15 Capias — Form of flat for, No. U). Forms of writ of, Nos. 12, 13, 14. Causes— Plumitif of 20 Roll of the causes to be argued 21 Non-appealable, in the Cir- cuit Court ; rules relat- ing thereto 3 et s. Certificate of service and its contents .... 31 Certiorari— When petition for must be presented . 79 Hearing in case of 80 Form of writ of certiorari, No. 44. Charges— Valuation of in the matter of confirma- tion of title 77 Circuit Court — General rule of the 1 As to forms, for the 2 Special rules relating to the 3 et s. Claims and oppositions must be entered in the plumitif 20 Clerk of the Circuit Court ; registers which he must keep 4, 5 of the Court of Review ; roll to be kept 10 Rule Coercive imprisonmfnt— Discharge from payment of alimentary allowance adcorded to the person subjected to 70 Fiat for Form No. 35 Writ of Form No. 36. Collocation — Posting up of reports of (io Commissioners — Rules re- lating to Comm. appointed to receive affidavits 13 Consent for removal of ex- hibits andother writings fyled 3()-:iT of attorney in case of exe- cution taken by a party in his own name for the costs distraits .I'J Contestation of the order or rank of the collocations (is Contempt of court— When breach of an order or rule of practice is a 15 Copy— When name of plain- tiffs attorney must be written on the back of the original and copy of the writ of summons. 150 Of an exhibit deposited in the record ;iT Amended copy of pro- ceeding; delay to answer m Deposit of 25 copies of the facts defined, in case of trial uy jury 5" Deposit of a when the minute is lost 8:1 Five copies of factum in the Court of Review 5 Of entries in the plumitif, etc., for the Court of Re- view ' Coroners— Rules applying to 11 Costs- Which the bidders and over-bidders must offer m Of examiners, experts, ar- bitrators, etc m Of witnesses ^1 INDEX TO RULES OP PRACTICE. 293 Rule Costumes of the Queen's Counsels, barristers, of the Prothonotary, Sheriff and other officers when appearing in Court . , 2 et s. Chier — Costume of . ...when appearing in Court 6 Sitting the court, must at- tend from the opening to the rising. 7 When the chief-crier is re- presented by a crier 8 Hours of attendance at the Court House 10 Cannot be judicial surety. 12 Date— Of the return of the writ mentioned in the fiat, if the writ is made returnable on a fixed date 27 Of the fyling inscribed on the back of any paper or document 35 Of the return entered in the register of the writs of summons, if the writ is returnable on a day fixed 18 Days— No fraction shall be reckoned in the com- putation of delays 16 General delay of one clear day 17 Of enouete and merits in the aistrict of Quebec. . 86 Dkcisions on points of prac- tice 14 All decisions in the cauf^es entered in a separate register 20 Decisions or rulings at en- ouete are noted in the depo.sitions 22-23 Defendants — Names of, entered in the register of the writs of summons 18 Definition of facts— Rule relating to motion for (3°) . 51 Delay— No fraction of a day reckoned in the com- putation of delays 16 RULB Of one clear day, when an- other is not specified . . 17 Within which defendant must appear, must be mentioned in the flat. . . 27 Delay to appear and plead when the writ is return- ed by leave of the judge 32 Revision of decisions ren- dered by the prothono- tary, one day's notice ... 39 Of summons to answer on articulated facts or un- der oath of office 43 Delay — Additional delay, when there is no election of domicile 48 Delay to reply to amended proceeding 55 Delay to give security men- tioned in art. 8(X) C.C.P. and notice 67 For the notice of inscrip- tion, in case of contesta- tion of the order or rank of the collocations 68 To urge irregularities in proces-verbal of attach- ment 73 Petition for certiorari, within 6 months 79 Hearing in the case of cer- t iorari 80 For the notice of the pre- senting of the petition for revision of the decis- ion of the prothonotary in non cont. matters 81 For service of petition for rectification of register or replacing original lost 813 Factums in Review, two days before hearing .... 5 Petition and affidavit in matter of provisional execution, in Review ; two days' notice 8 Demand— (Special.) What it must set forth, and affidavit 47 Notice must be given 52 294 INDEX TO RULES op PRAOTIOE. Rule Previous presentation, and payment to the pro- thonotary 58 Demand of payment cat the time of a first execution ; when required 60 Demurrer— Causes on on the roll of the causes to be argued 21 Deposit — For security for costs 38 Required for the revision of an order given by the protlionotary 39 Deposit — To accompany motion urging prelimin- ary exceptions 40 With the motion for the fixing of a day for trirJ by jury .* 41 Depositions— Ruling at en- quete are noted in the. 22-23 Not fyled on the day on which a case is to be argued in review 3 Deputy - Prothonotary or Dep. Sherilf. Costume . a Representing Prothono- tary or Sheriff 8 Cannot be judicial surety. 12 Discussion of movables— Opposition to the seiz- ure of immovaV)les on theground that thedebt- tor possesses movables. 64 DisTHACTioM oi" COSTS -Exe- cution by a party in his own name ; consent of the attorney 59 Distribution — Motion to homologate (13°) 51 Posting up of reports of. . 65 Form of summons under art. 811 C. P. C. No. 8-^. District of Quebec — Days for enquete and merits. 86 Days on which Court of Review shall sit at Que- bec 1 RULI Divisions — When several divisions of the Court shall sit at the same time s Documents— Date of fyling inscribed on the back with initials of officer receiving .'{."> Conmiunication of docu- ments fyled 3(i Withdrawing of docu- ments fyled 37 Duces tecitm— Form of sub- poena duces tecum, No. 5. Election of domicile— Py opposant 6;{ Endorsation — On docu- ments fyled 31 Examination — Form of summons to be examin- ed on abandonment of property, No. 7 Form of summons to be examined under art. 811 C. C, P. (distribution) No. 8 Examiner — (Commissaire pnqueteur) shaU not de- cide objections ;">:! His fees ST Exceptions prelimin- AiREr" How entered in the r il for hearing 21 Deposit with motion urg- ing prel-exc 10 What they shall specify in certain cases ."id Execution — Register of writs of must be kept by the prothonotary HI And by the sheriff 24 Writs of.... issued upon appearance and fiat iT) By party in his own name for costs distraits, at- torney's consent lO Demand of payment at the time of a lirst exec . . (HI Writs of execution and proceedings thereon en- tered in a register by the clerk of the circuit INDEX TO tlULES OF PRACTICE. 295 RuLi: len several Court shall time s te of fyling the back i of olticer :r. 11 of docu- :^(i of docu- 'M orm of sub- sum, No. 5. >IICILE— Py ().{ On docu- lU • Form of be examin- onment of 7... ... ions to be der art. 811 strlbution) )mmissaire lali not de- ls ("):{ S7 PRELIMIN- entered in jaring lil lotion urg- 10 1 specify in :>{) agister of ustbekept notary II) riff 1^4 iued upon lid fiat J.") own name itraits, at- ent r)9 lyment at Hrstexec. (H) ution and hereon en- ■egister by the circuit Rule court in non-appealable cases 5 Provisional execution, in the Court of Review 8 I^XHiBiTS— List of 33 Eudorsation of 34 Date of fyling inscribed on the back with initials of officer receiving 35 Exhibits— Communication of 36 Withdrawal of 37 and list, how fyled with opposition 62 Experts — Valuation of charges by— in matter of confirmation of title 77 Valuation of immovable— conf. of title 78 Fees of 87 Expert witnesses, taxa- tion 88 Factum in Rjiview -When, on the day on which a case is to be argued, it is not yet fyled 3 Its content , . . 4 Must be type written ; 5 copies thereof fyled 2 days before hearing 5 Motion, under 493 and 494 C. P. C. do not exempt from fyling factum in Review 6 False bihding— Resale for — jurisdiction of the judge in chambers 85 Fees — Of examiners, ex- perts, arbitrators, audit- ors, appraisers, etc 87 Fiat — Writs of summons and writs of execution are issued upon fiat 25 For writ of venire facias, and for writ of habeas corpus 26 For writ of summons, must specify return day or delay within whiun defendant shall appear. 27 Rule V. -FORMS OF FIATS Foolscap— Writings fyled. must be written on good foolscap 34 Forma pauperis -Petition to proceed in forma pauperis can be present- ed without previously paying 58 Form— Of flat for writ of summons, No. 1 capias, arret simple,saisie- revendicationand saisie- conservatoire. No. 10... writ of venire facias. No. 9 writ of saisie en m. tierces before jugt.. No. 18 saisie-gagerie. No. 19 writ of saisie-gagerie par droit de suite. No. 20. . . writ of saisie-arret en mains tierces after judg- ment. No. 24 writ of fieri facias, No. 26 writ of possession. No. 30. venditioni exponas to sell movables and effects de- clared by garnishee, No. 33 coercive imprisonment, No. 35 habeas corpus ad subj. No. 38 mandamus and prohibi- tion, peremptory, No. 41 Form— Of writ of summons addressed to the sheriff or to a bailiff of the dis- trict. No. 2 of summons addressed to the sheriff or to a bailiff of another district. No. 3 of subptiena. No. 4 of subpoena, duces tecum, No. 5 on articulated facts or supplementary oath, No. 6. 296 INDEX TO RULES OF PRACTICE. 1 3 V :\ * A .• ■* '; .j« t -,(■ 5 .!t ^' i Rule to be examined on aban- donment of property, No. 7 Form— Of summons under art. 8I0C.C.P.,No8.... writ venire facias, No. 11. capias, ad responden- dum, No. 12 during suit, No. 13. . .. after judgment, No. 14 simple attachment. No. 15 salsie-revendicatioUjNo. 16 saisie-conservatoire. No. 17 saisiegagerie, No. 21... saisie-gag. par droit de suite, No. 22 saisie en m. tierces be- fore judgt, No. 23 . saisie-arret after judg- ment. No. 25 fieri facia3, No. 27 venditioni exponas (art. 604, C.C.P.)No. 28... fieri facias on surrender, No. 29 possession. No. 31 to put purchaser in pos- session, No. 32 of venditioni exponas against garnishee, No. 34 contrainte par corps. No. 36 Form— Of order for the ap- pearance of a witness de- tained in gaol. No. 37 . .. Of writ of habeas corpus ad subj.. No. 39 Of injunction, No. 40 Of peremptory writ of mandamus. No. 42 Of peremptory writ of prohibition. No. 43 Of writ of certiorari, No. 44 Garnishbe— Inscription for judgment against— by de- fault 66 RULK Habeas Corpus — Applied for by flat 20 Fiatfor-Form No. 38.... Writ of— Form, No. 39. . . . Homologation— Motion to homologate the rank or distribution (13") 51 Hotel expenses- Of exam- iners, arbitrators, etc 87 Of witnesses. Taxation... 88 Hours— Office hours— Sher- iff" and Prothonotary 9 Of attendance at the (jourt House — Criers 10 Of service upon attorneys and parties 28 Imprisonment (Coercive)— Discharge from payment of alimentary allowance accorded to the person subjected to 70 Fiat for— Form No. 35 Writ of contrainte par corps. I'orm No. 36 Index-To the book in which shall be entered all decis- ions on points of practice. 14 Information— Of the attor- ney-general (4"). Form No. 3 Initials— Of prothonotary or sheriff", on the back of any paper or document fyled 35 Injunction— Form No. 40. . Inscription— Delay for the notice of — in case of contestation of the order of the collocations 68 In the case of certiorari ; hearing on the 80 Date of the — entered in register, in non-appeal- able cases in the C . C . . . . 5 Inscription- In Review, re- jected if party inscrib- ing does not appear, or . has not fyled factum, etc., on the day on which the case is to be argued 3 Rule Applied 20 No. 38.... No. 39.... Motion to e rank or >-) -Of exaiti- rs, etc 'axation. . . urs— Sher- >notary b the Court s 1 attorneys !;!oercive)— I payment allowance le person N0V35!!!! ainte par ^o. 36 kin which I all decis- if practice. : the attor- Form No. thonotary e back of document TiNo. 40.. ay for the case of the order ons ertiorari ; itered in n-appeal- C.C. , . jview, re- Y inscrib- ppear, or factum, on which e argued 51 87 88 9 10 28 70 14 35 68 80 INDEX TO RULES or PRACTICE. 207 Rule In Review, roll of inscrip- tions, containing date of the inscription, etc. . 9 INTERLOCUTARIES— Copy of —transmitted to the judge with record en delibere. . . 22 Irregularities — In the proces verbal of attach- ment for rent, etc.; how and when they must be urged 73 JuDGE-Discretionary power of the— as to delay of one clear day in cases of ur- gency 17 Judge in Chambers— Jur- isdiction of 85 What is required before presenting petition or demand to 58 Judgments — Entered in plumitif 20 Separate register in which are entered the. . 20 In the Circuit Court, non- appealable ; register of th6 4 In the Circuit Court, non- appealable : judgments noted in the register of causes 5 Juror— Copy of the facts for each 57 Jury — Sum to be deposited with motion for the fix- ing of ! . day for trial by. 41 Different motions in case of trial by (3° a 7°) 51 LiciTATiON- List of charges, in case of 75 List of Charges— In case of licitation 75 List of exhibits — How made 33 With oppositions ; how fyled 62 List— Of all papers compos- ing the record, for Court of Review 7 Mandamus — Form of fiat for— No. 41 Rule Writ of— Form No. 42. . . . Merits— Roll of causes to be heard on '. . 21 What the prothonotary must do before putting a record en d^lib^re on the merits 22 Motions— Entered on the roll of the causes to be argued 21 Urging preliminary excep- tions ; deposit required. 40 For putting in default to appoint another attor- ney (9") 44,51 What motions must set forth ; affidavit 47 Party shall not be heard on other grounds than those therein set forth.. 49 What motions shall speci- fy in certain cases 50 Rule 47 does not apply to certain motions 51 Motion to receive a report of experts (1°) 51 to homologate an award of arbitrators (2*') 51 to define the facts for the jurv(3°) 51 to nx a day for striking the panel (4°) 51 to fix a day for trial and to order the summoning of a jury (5°) 51 Motion —Motion to object to the jury being exclu- sively composed of trad- ers (6° 51 to have French or Eng- lish jury, or for a jury de medietate lingua' (7") 71 for act of tender and pay- ment (8^) 51 for substitution and re- vocation of attorney (10°) 51 for the sheriff or bailiff to return his writ (11"). 51 to dismiss for want of proceedings (12^*) 51 298 INDEX TO RULES UF PRACTICE. HuiK to homologate the rank or the distribution (13"). 51 to order the sheriff to Vmnj? in the body (14"). . 51 to obtain act of the court (15") 51 Notice of every motion to the adverse party 52 Motion for order to return money to the sherilf OS) Urging irregularities in the proces-verbal of the attachment for rent, in revendication, etc 73 Motion in review continued to the next sitting of the court if prevented from sitting 2 prescribed by arts. 493 and 494 C.C.P.; fyling of fac- tums 6 Montreal — The Court of Review at on every judicial day 1 Name of attorney on writ and copy 30 Non-contentious mattfrs — Petition for revision of the decision of the Pro- thonotary in 81 Notaries — Affidavits re- ceived by who are at the same time commis- sioners to receive affida- vits 13 Signature of documents by notary representing a party 19 Petition for revision of the decision of the prothono- tary in non cont. mat- ters ; notice to or by the notary 81 Note of the date of the fyl- ing, on documents fyloa. . 35 Notes of the proof— De- fault to fyle in time ; in the Court of Review 3 Notice to defendant; return of the writ after the delay 32 Rule of revision of an order or decision given by pro- thonotary 39 of petition, motion, or spe- cial demand 52 to interested persons of security to be given ; order of distribution 07 of motion for order to re- turn money to sheriff 09 of security, in case of saisie-arret before judg- ment , 71 ofsecurity.incaseofsaisie- revendication 71 Number of causes ; entered in the register of the writs of executions 19 Entered in the plumitif . . . 20 Endorsed on every docu- ment fyled 34 Numbering of all docu- ments of the record, be- fore putting a record en delibere on the merits 22 of articles, in factums, in the Court of Review 4 Oath — Co;nmissioner to re- ceive affidavits must be sworn before acting as such 13 He cannot receive the affi- davits of certain persons 13 Oath— Supplementary oath — Form of order to answer on, form No. (J Objections at enquete, the examiner shall not decide. 53 Office hours— Sheriff and prothonotary 9 Chief-crier and criers 10 Service upon attorneys ... 28 Officers of Justice cannot be sureties 12 of Circuit Court are sub- ject to rules of practice of Superior Court 1 Official Gazette — Rules of practice published in . . Opposition s— Entry in plumitif 20 INDEX TO RULES OF PRACTICE. 299 JlULE Kntry by sheriff. 24 Plxhihits to be fyled (i2 List of exhibits 02 Election of domicile, when required (V'i to seizure of imniovables on the ground that the debtor possesses mov- ables 01 to the aflrtxiriKof seals, ser- vice and notice 84 in Circuit Court, entry. . . 5 Oppositions to marriajLces, no factum reiiuired in Re- view 4 Order to return moneys to sheriff 09 to put purchaser in pos- session ; form No. 82 for the appearance of a witness detained in gaol ; form No. 37. to the sheriff to bring in the body (14) 51 Orders and DiocisioNs—En- tered in plumitif and register 20 In Circuit Court ; entered in register .• 4 Entered by clerk of Court of Review 10 Paper — Foolscap must be used 3^i Must be writ' n on one side only 'M Papers — Endorsation re- quired 34 List of, to accompany re- view 7 Payment— Of amount pay- able on proceedings re- quired before presentation to judge in chambers — 58 Petition— What it mustset forth 47 When must be accompani- ed by affidavit 47 Limited to grounds set forth therein 49 Notice of 52 RULH Must be presented to pro- thonotary and paid be- fore presentation to judge in chambers 58 To obtain discharge from payment of allowance to the person imprisoned. . 70 For certiorari, delay of six months ,. 79 For rectification of regis- ters, delay for service. .. 83 To replace lost original, delay for service 83 In Court of Review, con- tinued to next sitting. .. 2 In Court of Review, for provisional execution, its prohibition or its sus- pension 8 Plaintiff — Entry of his name in register for writs of summons 18 Pr.UMiTiF — Kept by pro- thonotary 20 Copy of for Court ot Re- view 7 Possession— Fiat for writ of —form No. 30 Writ of possession— form No. 31. . Order to put purchaser in possession -form No. 32 Posting up— Of report and distribution, place and date 05 Practice — Rules of — see Bules. Decisions on points of practice, entered iu a book by the prothono- tary 14 Practitioner— Fees 87 PR.i^ciPE—See Fiat. PRocis-VERBAL— Of attach- ment ; delay to urge ir- regularities ; motion ... 73 Consent of attorney con- cerning costs must be specified in proces-ver- val of seir:ure by party. . 59 Copy left with the debtor. 61 300 INDEX TO RULES OF PRACTICE. IluliE Prohihition— Summons in prohibition, form No. 8 («") Peremptory writ, form No. 48 Proof— How made on peti- tion to replace original document 82 Before t he examiner ; ob- jections 53 Proof ani> hkaring— Roll of causes for 21 Days for, in the district of Quebec 8(5 Prothonotary — Attend- ance in Court 7 Represented by deputy. . . 8 Subject ill certain cases to rules applying to the sheriff 11 Registers of writs of sum- mons 18 Register of writs of exe- cution 19 Plumitif and register o' judgments 20 Note on the back of docu- ments fyled 35 Payment to, before pre- senting demand to judge 58 Revision of his decisions in non contentious mat- ters 81 Roll of cases for the judge in Superior Court 21 Roll of cases for each of the judges in Review . . 9 Provisional execution— Petition in Review 8 Purchaser— Order to put him in possession, form No. 32 Punishment— For breach of an order or of a rule of practice 15 Quebec — District of, days for proof and hearing . . " 86 Days on which the Court of Review shf\ll sit on.. 1 Rule Rules of practice deposited in the office of the pro- thonotary at Quebec Queen's counsels — Cos- tume 2 Qui tam actions— Form No 3 (5") Receipt— Forexhibits, shall . be dated and signed on the list 36 Record — The documents shall be numbered by the prothonotary in review, accompanied by list of papers and copy of entries 7 RpxjLSTER— Of decisions on points of practice 14 of writs of summons 18 of writs of execution 19 Plumitif 20 of judgments and orders. 20 of writs of execution, kept by sheriff 24 of orders and judgments in Circuit Court, non-ap- pealable cases 4 of cases in Circuit Court, non. appealable cases 5 Recti ficjition of registers. Petition and notice. .... . 8J^ Removal -Of seals, service of demand 84 Report — Of experts, mo- tion to receive (1°) 51 of arbitrators, motion to homologate (2") 51 Report o¥ distribution— Motion to homologate (13°) 51 Posting up of 65 Delay for putting in se- curity, and notice 67 Return— Of writs of sum- mons, date of mentioned in the register 18 date of, mentioned In reg- ister of executions 19 date of, mentioned in fiat. 27 of writ after the delay fix- ed for its return. Notice to defendant and delay to appear and plead 32 INDEX TO RULES OP PRACTICE. 301 posited ;ne pro- !l>et — Co8- 2 - Form 36 amenta by the review, list of entries 7 ons on 14 ns 18 m 19 20 orders. 20 n, Icept 24 4 5 8;^ 84 51 ,. 51 TION— te(13°) 51 65 in se- 67 18 in reg- 19 n flat. 27 ay fix- ^Jotice delay d 32 Rule of monien to sheriff, mo- tion and notice 69 IlEVENDICATION — Sale of articles of a perishable nature 72 Security to be put in pos- session 71 Writ of, form No. 16 Rkvir:w— Court of Review, sittings at Montreal and Quebec 1 Petition or motion con- tinued to next sitting. . 2 Hearing limited to grounds urged in fac- tum,-. 4 Type - written copies of factum 5 List of papers and copies ofplumitif 7 Provisional execution, its prohibition, its suspen- sion 8 Roll prepared by prothono- tary 9 Roll for clerk's use 10 If parties fail to appear to fyle factum 3 Motions for judgment on the verdict, for a new trial or for different judg- ment. Factum required 6 Review— Inscription in re- view, jury trial, factum required 6 Revision— Of judgment ren- dered by prothonotary ; deposit and notice 39 Of decisions of prothono- tary in non-contentious matters, notice and de- lay..... 81 Revoci TION — Of attorney must be authorized by the judge 45 Roll— Of cases for the judge in Superior Court.. . 21 For the prothonotary ..... 23 For the J udge in Review . . 9 For the clerk in Review. . 10 Rule Rules of practice— Of the Superior Court. Nos. 1 to 89 Former rules rescinded. . . 1 Breach of, punishment ... 15 Of the Circuit Court Of the Court of Review. .. Deposited at Quebec Translated Published in Ofticial Gazette Saisie — Arret-simple, fiat for, form No. 10 Fiat for saisie-revendica- tion, form No. 10 Fiat for saisc-conserva- toire, form No . 10. ...... Writ of saisie-arret sim- ple, form No. 15 Writ of saisie-revendica- tion, form No. 16 Writ of saisie-conserva- toire, form No. 17 Fiat for writ of saisie en main-tierce before judg- ment, form No . 18 Fiat for saisie - gagerie, form No. 19 Fiat for saisie-gagerie par droit de suite, form No. 20 Writ of saisie - gagerie, form No. 21 Writ of saisie-gagerie par droit de suite, form No. 22 Writ of saise en main- tierce before judgment, form No. 23. ». Fiat for saisie-arret after judgment, form No. 24. Writ of saisie-arret after judgment, form No. 25. SALE—Of articles of a per- ishable nature 7 Seals— Opposition to the aflrtxing of, and application for the removal oi 84 Security— Certain persons cannot be sureties .. 12 mm 302 INDEX TO RULES OF IMIACTICE. ^% !,'^i I 'ill Rule For costs, may be replaced by deposit 38 On report of distribution. 07 In case of attachment be- fore judgment ... . 71 By bidders on confirma- tion of tit!e 76 Seizure— Demand of pay- ment, when requisite. . . GO Proces-verbal must be left with the debtor 01 Of movables fiat for, form No. 26 Of xmn^ovables, fiat for. form No. 26 Writ ot seizure, form No. 27 Sp]IZURE BY GARNISHMENT — Proceedings by the debtor on -. . 66 Jurisdiction of the judge in chambers . 85 Fiat f 01, form No. 24 Writ of, form No .25 Service — On attorneys, hours for effecting 28 Certificateof 31 Of alVidavit on adverse party 47 Of amendment, its effect. 55 Of detaiied statement, when requisite 56 Of motion to return mon- ies to sheriff 09 Of inscription for hearing in case of certiorari .... 80 Of petition for rectifica- tion of registers 83 Of petition to replace lost original 83 Sequestration — Demand ioT, notice 74 Sheriff— Costume 4 Attendance in court 7 Regi.^ter kept by 24 Cannot receive without permission opposition to seizure of immovables on the giound that the debtor possesses mov- ables 64 Rule Signature of documents and procedure 20 Statement of facts, with motion to define the facts (3) 51 Factum in Review. See Factum Stenographer— Failure to fyle notes of evidence in Review 3 Striking the panel— Mo- tion for -,4") 51 Surp(Ena~No flat and ap- pearance required for its i.s3ue 25 Ordinary subptiena, Form No. 4 Duces-tfcuvi, Form No. 5 Substitution of attorneys, must be authorized by judge 45 Summons— Register of writs of 18 Certificate of service 31 Forms No. 2 and 3 32 Surrender— Writ of fieri facias on surrender, form No. 29 Tariff— Fees of examiners, experts, arbitrators, etc . . 87 Taxation of travelling and hotel expenses of exam- iners, experts, etc 87 Of witnesses 88 Tender and deposit— Mo- tion for act of (8") 51 Travellin(3 expenses--Ex- aminers, exvjerts, etc. ... 87 Witnesses 88 Tvpewriter— Copies of the facts defined, jury trial. 57 Factum in Review 5 Urgencv— Cases of, power of the judge as to delay. . . 17 Valuation of charges, con- firmation of title 77 Vendition i-exponas— When the writ of execu- tion is lost or destroyed, form No. 28 Rule ocuments 20 ctsi, with L'flne the 51 iew. See failure to ideiice in 'A NEL— Mo- 51 t and ap- red for its 25 na, Form )rm No. 5 Lttorneys, rized by 45 r of writs 18 vice 31 3 32 : of fieri ier, form caminers, ors, etc . . 87 lling and of exam- etc 87 88 )SIT~Mo- ') 51 SSES-Ex- ts, etc.... 87 88 ies of the ary trial . 57 w 5 )f, power ) delay... 17 rges, con- 77 CPONAS — of execu- estroyed, INDEX TO RULES Rule Against gR,rni8hee,flat for, form No. 33 Against garnishee, writ of, Form No. 34 Venire FAciAs-Applied for by fiat 20 May be seen at sheriff's office ,'4 Fiat for writ of form No. 9 writ of, form No. 11 Vouchers with list of charges 75 Witxesses— Taxation of... 88 When party to suit may be taxed 88 Detained in gaol, order for the appearance of, form No. 37 Writs of summons, register of 18 issued upon appearance and flat 25 name of plaintiff's attor- ney on the back 30 OF PRACTICE. 303 Rule Writs of execution, in Su- perior Court, register of 19 Or execution, in Circuit Court, non- appealable, register of 5 Consent of attorney dis- trayant, specified in exe- cution 59 Issued from Cireuit Court and returnable in ' Su- perior Court 2 Or subp,.«Ji « fr C THEORET, Law Publisher, BEDAIII), Code Municipal de la Province de QneUec aniiote. —Mis au couraiit de la legislation et de la jurisprudence, suivi des statnts concernant les corporations niunicipales et leurs ofli- ciers, relatifs aux elections parletnentaires, aux licences, aux jures et Jurys, etc., etc.— Textes fran^ais et anglais. -English and French text.— par J.-E. Beoahu, C.R., avocat au barreau de Quebec, 1 vol. in -8, 700 pages 1898. Prix pour chaiiue exeinplaire, toile i$4.00 Prix pour ou 8 exemj)laires a la fois, pour les conseils muni- cipaux ^.S.OU Extra It de la Preface. — "On ne pent guere s'occuper pertinein ment d'affaires municipales, sans avoir sous la main un volume eontenant Ic dernier texte de la loi, et le somma^re des jugements rendus su'' ce texte. Opinions.— "This work is comrlete and exhaustive, giving both versions of the text — English and French— with copious annotations. The alphabetical index at the end of the volume is admirably full, and it is entirely safe to say has no ecjual. Both editor and i)ublisher liave done the bar of the province a great service in furnishing so complete, well arranged and admirable a work." — Montreal Gazette. "Jusqu'a ce jour, bien que decelant un travail soigne, les editions publiees de notre code municipal presentaient queUiues lacunes d'indication. Le but evident du compilateur du nouveau volume est de faciliter aux administrations municipales, au moyen d'un ouvrage bien indexe, I'interpretation immediate, claireet pratique des clauses de la loi qui les gouverne, avec la jurisprudence a I'appui. L'auteur u pousse le scrupule jusqu'a mettre en regard le texte en deux langues, fran^aise et auglaise, du code municipal. Le livre en question contient en plus uu supplement comprenant les Statuts et extraits de Statuts concernant les corporations muni cipales et leurs officiers, plus la loi electorale de Quebec, et aussi hi loi provinciale de.'.' licences ; de sorte que, jugee dans son ensemble, la ftouvelle publication nous parait remplir toutes les conditions d'utilite pour les conseils municipaux. Tel qu'il est le Code Muni ci-pal que nous signalons devrait etre sur le bureau de toutes les municipalites rurales, pour leur bien, et aussi dans la biblioth^que de tous lea notaires, jugts de paix, etc., du pays. On ne trouve pas d'ouvrage aussi complet ici."— Za Presse, Montreal. 6becannote. rudence, suivi 's et IcurH ofli- licences, aux lais. -Englisli at au barreau $4.00 Is inuni- ?3:ioo per pertiiieni in un volume, les jugements e, giving both s annotations. dmirably full, and publisher furnishing so trQcil Gazette. e, les editions Ujues lacunes au volume est I d'un ouvraj:;e ue des clauses ui. L'auteura deux langues, it comprenant rations muni )ec, et aussi la son ensemble, les conditions e Code Muui- de toutes les I bibliotheque ne trouve pas