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 MEMORIAL 
 
 RESPECr^TNG THE BIGHT WHICH NOTARIES HAVE 
 ALWAYS ENJOYED TO CONDUCT THE NON -CON- 
 TENTIOUS PROCEEDINGS MENTIONED IN 
 THE THIRD PART OF THE CODE 
 OF CIVIL PROCEDURE. 
 
 
 
 
 
 
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MEMORIAL 
 
 RESPECTING THE RIGHT WHICH NOTARIES HAVE 
 ALWAYS ENJOYED TO CONDUCT THE NON-CON- 
 TENTIOUS PROCEEDINGS MENTIONED IN THE 
 THIRD PART OF THE CODE OF CIVIL 
 PROCEDURE. 
 
 In January, 1894, the Legislature of this Province ap- 
 pointed a commission to revise and amend the Code of Civil 
 Procedure of Lower Canada and the laws connected there- 
 with, (57 Vict., ch. 9). This commission has just completed 
 its preliminary work and the Goverimient has just laid its 
 third report before the House of Assembly. 
 
 The Board of Notaries appreciating the importance to the 
 profession whose interests are committed to it of watching 
 the labors of this Commission, asked in the month of Sep- 
 tember, 1894, to be represented on it by one of its members 
 for at least, the time during which the third part of the Code 
 of Civil Procedure would be under consideration. This desire 
 was a legitimate one, inasmuch as the third part of the Code 
 of Civil Procedure 1ms reference specially to the Inspection 
 of documents, family councils, tutorships and curatorships, 
 the sale of immoveables belonging to minors or other dis- 
 qualified persons, to proceedings relating to successions, such 
 as the affixing and removal of seals, the making of inven- 
 tories, the sale of moveables, benefit of inventory, provisional 
 possession, vacant successious, and arbitrations in general. 
 
 We regret to say that our profession was not given the 
 benefit of representation while the work of the Commission 
 
— 2 — 
 
 was being earned on. On the other hand, the interests of 
 the Bar were in the hands of powerful protectors in the 
 persons of the commissioners and the secretaries of the Com- 
 mission, namely : two judges, quite recently risen from the 
 ranks, and three lawyers. 
 
 Such was not the treatment due to the notarial profession 
 the tnost ancient in the country, and which has done so 
 much, particularly within the last twenty-five years, to ensure 
 the carrying out of the law, and to secure for all the greatest 
 possible security in the drafting of contracts and of the most 
 important documents. 
 
 That justice which has been denied our profession, we 
 now seek at the hands of the public, of the representatives 
 of the people, and of the nine hundred notaries of this Pro- 
 vince. If in ceitain quarters no account is taken of the 
 efl'orts which have been made to raise the standard of the 
 notarial jaofession in this Province by requiring of those who 
 intend to enter into it a higher education, by pmctising the 
 closest siwveillaiice over its members, by punishing ut the 
 cost of the greatest sacrifices those among them who offend 
 against professional honor, we are confident that a more 
 enlightened and unprejudiced public will judge otherwise. 
 The organic laws of the notarial jnofession have within a 
 half century, on five different occasions, received the solemn 
 recognition of the Parliaments, and we would not have it 
 said that the simple caprice of interested functionaries could 
 at a mere stroke of the pen, cause the most important provi- 
 sions in them to disappear without any demand from the 
 public and without any justification for so drastic a measure. 
 
 Let us see what the Commission appointed to revise and 
 amend the Code of Civil Procedure has done. 
 
 Article li.i of the Code of Civil Procedure, as amended by 
 article 5857 of the Kevised Statutes of the Province of Que- 
 bec, reads as follows : 
 
— 3 — 
 
 " Any party to a suit may appear and plead either in 
 person or through the ministry of an attorney at law. 
 
 *' Notaries may prepare the proceedings 8|)ecified in the 
 third part of this Code, and submit the same to the judge or 
 to the prothuiiotary, and may even sign in the name of the 
 petitioners all petitions necessary for such proceedings." 
 
 In the second report on their projected code, the Commis- 
 sioners propose to replace this article 23 by the following: 
 
 " Any ])arty to an action or to any other judicial proceed- 
 ing may a])pear and plead either in person or through the 
 ministry of an advocate." 
 
 They cut out, without more ado, the whole of the second 
 paragraph of article 23, and thus take away from the notaries 
 the right which they had to prepare the proceedings spe- 
 cified in the third jmrt of this Code, and submit the same 
 to the judge or to the prothonotary, and to sign in the 
 name of the j^etitioners all petitions necessary for such 
 proceedings, to give it to advocates ivho may appear and 
 plead in any action or other judicial proceeding. 
 
 So radical a change would seem to require the support of 
 some seiious reason. A profession cannot be arbitrarily 
 despoiled without being told why. The commissioners 
 must have had before them numerous petitions to convince 
 them ti it public sentiment required such an innovation. 
 They intended, no doubt, to prevent dangerous abuses. 
 Their attention was perhaps drawn to notorious facts which 
 induced them to think that notaries were not sufficiently 
 qualified to be able to conduct such proceedings. 
 
 In 1865, the commissioners entrusted with the codification 
 of the laws of Lower Canada, and in 188/", the commissioner 
 appointed to revise the Statutes of the Province of Quebec, 
 coupled with the drafts of their work most learned and 
 elaborate reports, which may still be consulted with profit. 
 
— 4 — 
 
 Wherever they proposed a change, they took care to give a 
 reason for it with an abundance of argument and quotation 
 of texts, which render their work real monuments of erudi- 
 tion and science. 
 
 The commissioners who have had in hand the revision and 
 amendment of the Code of Civil Procedure have not seen fit 
 to follow this example. Where they condescend to make 
 any observations, they do so with a truly marvellous 
 concision. 
 
 On Art. 23, now in question and amended by them in so 
 masterly a fashion, here are the siTni)le remarks which they 
 think proper to make. We quote from their second report, 
 page I'l : 
 
 " Chapter V contains provisions applicable to all civil 
 actions. No change is to be found in chapters V, VI, VII 
 and VIII, saving the repeal of the second part of Article 23 
 of the Code of Civil Trocedure of Lower Canada." 
 
 This is evidently a mockery, which it is surprising to 
 find on the lips of grave magistrates. 
 
 Thus, at a single stroke of the pen, a whole profession is 
 deprived of the right of conducting imjtortant proceedings, a 
 right which custom and the law have allowed it to enjoy 
 from time immemorial, and it is not thought necessary to 
 give a reason for so doing. Did they wish to avoid discus- 
 sion ? Or did they think that by drawing as little attention 
 as possible to this crying injustice, it might pass unperceived ? 
 Some think that the commissioners did not attach to this 
 subject the importance with which it is viewed by the nota- 
 ries, that if they had felt the seriousness of the blow thus 
 aimed at the profession, and thought of the increased expen- 
 ses that would result thereform for families, they would- 
 have acted with more caution. We will not now discuss this 
 point, but will take it up further on if necessary. 
 
— . 5 — 
 
 For the present, what is more important is to show how 
 serious an injustice has been done, how the notarial profes- 
 sion is deprived of an important part of its functions, and in 
 what position, family interests are placed through the increase 
 in the heavy expenses with which they are already weighted 
 down in the settlement of estates and in all the small pro- 
 ceedings which concern specially the ])atrimony and status 
 of minors. 
 
 Under the Code as it now exists family councils are gen- 
 erally held before a notary, whenever it is necessary to pro- 
 vide minors, interdicts, absentees or substitutes, with tutors 
 or curators or to authorize such tutors or curators to ])erform 
 a particular act, or for all the other purposes mentioned in 
 the third part of the Code of Civil Procedure, The law gives 
 relations other means, but they prefer to have recourse to a 
 notary, because in so doing they avoid journeyiiigs and 
 heavy expenses ? The notary draw.s tlie deeds and presents 
 them to the judge or prothonotary for homologation. Is not 
 this a natural consequence ? When bringing before him, the 
 relations to consider afi'airs in the interest of the family the 
 notary acts as the delegate of the Court : is it not therefore 
 proper that he should himself report his proceedings to the 
 authority from which his power emanates? Who can do so 
 better than he ? Who is in a better position to ask for the 
 ratification of his own actions ? 
 
 The codifiers, by Article 79, wouhi confine the functions 
 of the notary within tlie four "'alls of his ofUce. As soon as 
 the family council is over, as soon as tutors or curators are 
 chosen, he must hand over his proceedings to an advocate, 
 who in turn, for an additional fee, will undertake to draw up 
 a petition to relate to the judge the deliberations of the family 
 council at which he did not assist and to pray for approval 
 thereof. 
 
- 6 - 
 
 This is the way in which the codifiers, to carry out the 
 will of the Legislature, which had instructed them to revise 
 the Code so as to simi)lify proceedings and reduce costs, com- 
 plicate machinery so simple, and double the expenses. 
 
 What we have just said with reference to tutorsliips and 
 curatorships also applies to the sale of immoveables of minors 
 and other incapables. In future a notary will conduct the 
 proceedings, and, as desired by our codifiers, an advocate will 
 undertake to have them approved of by the judge, but always 
 in consideration of a fee. 
 
 What shall we say of the proceedings respecting succes- 
 sions ? In the matter of the affixing of seals, the advocate 
 alone in the future, will be allowed to demand it from the 
 judge, and they will be affixed by the notary. The advocate, 
 after the affi.xiug, will again appear, and will take the report 
 from the hands of the notary and will de])0sit it in the court. 
 If the notary meets with difficulties in the affixing of the 
 seals, he will have to make a report, submit it to au advocate, 
 who in turn will hand it to the judge. The latter will give 
 the notary fresh au'aority, still by the interposition of the 
 advocate, who will transmit this new document, and so forth. 
 And this is what our codifiers call simplifying proceedings 
 and reducing costs ! 
 
 In the case of inventories, with the practice as it exists, it 
 is the notary w!io, being alone authorized to draw such 
 deeds, applies to the judge to have it closed. In future this 
 last ])rocccding will be in the hands of the advocate ; and 
 as this formality must be noted on the original inventory, 
 the notary will have to hand it to the advocate, in spite of the 
 law which forbids him imder the severest penalties, to part 
 with his deeds. It may be urged that he can accompany the 
 advocate ; but the party who is ordered to make the inven- 
 tory, who has to pay the cost of it, will doubtless find that 
 his expenses would have been less under the old system. 
 
We point out these particular cases to shew how ridiculous 
 and unjust is this innovation of our codifiers. 
 
 Former legislators, ripened by study and experience, 
 thoroughly understood that all these simple i)roceeding3 of 
 voluntary jurisdiction mentioned in the third part of our 
 Code should be left to notaries. They also understood that 
 the role the advociite is called upon to play in society is so 
 great and so noble that he should not descend to meddle 
 with such matters of detail. 
 
 It is said in some places that notaries by conducting these 
 proceedings in chambers take from ad\ocates an esfmtial 
 part of their privileges. Such a ])retention would oe a 
 source of amusement to advocates in France, if they were 
 aware of it. If the members of the Bar of this Province 
 mean to be advocates, attorneys, and notaries combined, let 
 oiiem say so. We will then know on what ground to meet 
 them, but then we shall ask for a share in the spoils. 
 
 Those who charge the notarial profession with a desire to 
 encroach on the IJar, when they claim the right to conduct 
 all proceedings of voluntary jurisdiction, are evidently 
 unacquainted with their history of law. 
 
 We contend that from the origin of this colony, the special 
 functions of notaries in all the cases under discussion, have 
 been admitted in the most formal manner by the authorities, 
 and that the profesfiion has been assimilated unrestiJtedly 
 to that of notary in France. The proof of this assertion is 
 quite easily made. 
 
 The right of notaries to make voluntary licitations has 
 been much discu.sscd of late. Let us see what took place two 
 hundred years ago. 
 
 On the 30th June, 1G92, a notary named Genaple who 
 practised in Quebec, presented a petition to the Superior 
 Council in which he complained of the Lieutenant g4n4ral 
 
— 8 — 
 
 civil et criminel, who sought to prevent notaries from 
 making partitions and inventories. (Cf. Jugements et delibe- 
 rations du Conseil Sup^rieur, Vol. Ill, p. 637). 
 
 " So far back as the year 1317 ", said he, it was ordained 
 by edict of the King that notaries alone should make inven- 
 tories and partitions of property, and all other officers of jus- 
 tice were prohibited from proceeding thereto. Arrits of the 
 29th November. 1382, 20th July, 1384, and the 4th March, 
 1390, condemned commissioners who had made inventories 
 to pay a line of 100 livres and to give up to the notaries the 
 fees which they had received. ArHts were made in the same 
 sense in 1512, 1542, 1543, 1568, 1573, 1577, inasmush as 
 inventories and partitions are acts of voluntary jurisdiction 
 which should be made by notaries. 
 
 Those only which are ordt-red by judgment after contes- 
 tation should be made by the judge, as well as whenever a 
 matter relates to rights of foreigners, to escheats and to vacant 
 l)ropertj\ 
 
 " Complaint was made to the Inteudant when the lieute- 
 nant ile la pr^vot^ mRde the inventory of the property of the 
 late Mr. de Comjiorte. The lieutenant then promised he should 
 not do so again. Yet the King's attorney, Mr. Dupuy, who 
 was aware of this decision, has just made an inventory of the 
 property of the community of Francois Riviere. " 
 
 Genaple prayed in consequence that the King's attorney 
 should be cxDudemned to surrender what he had received, and 
 that the notaries should be authorized to make all invento- 
 ries, except such as should be ordered by a judgment after 
 contestation and in cases of escheats and vacant successions. 
 
 The Council postpones its decision until it should be cilled 
 upon to make general rules ; but it was at once recognized 
 that notaries had the right to nuike all acts of voluntary 
 jui'isdiction, and this is also established by all the old authors. 
 
— 9 — 
 
 In 1706, the question was again raised, and on the 19th 
 July, 1708, Raiidot, the Intendant, made an ordonnance in 
 which the rights of the notaries are clearly defined. (Cf. 
 " Eegistre des Ordonnances dea intendants, vol. II, p. 69, " 
 and " Registre des insinuations de la pr^vote de Quc^bec, ann^e 
 1709 " 15th January). 
 
 " Considering," it proceeds, " the petition pre?ented to us 
 by the notaries of this town, in which, for the reasons therein 
 contained, they pray among other things that the Lieutenant 
 G^n^ral of this town and the other officers of the pr^vdti^ be 
 forbidden to make inventories on pain of all costs and dama- 
 ges to the parties and of restitution of the emoluments that 
 they will have received, saving only the case in which by a 
 judgment after contestation, an inventoiy will have been 
 ordered, the ])etition served on the 19th January, 170(5, and 
 the other petition of said notaries of the 13th April, at the 
 foot of which is an order that it be served to be answered 
 within a week : considering the defence of the said Lievfe- 
 'lumt Gdiidral of the 20th of the .said month, and after having 
 enquired into the custom followed respecting said inventories, 
 seeing and considering the whole, and having heard the 
 parties : 
 
 " We order that as to the rule prayed for by them, they 
 shall have recourse to the King, and in the meantime as to 
 the right of the Lieutenant General of this town to make 
 inventories initiated by the affixing of thejr seals concurrently 
 with notaries accordingly as either of them is re([uested, and 
 considering, moreover, that in withdrawing this right from 
 the said lieutenants (jdiUvaux, wherever notaries are c.illed 
 upon tc make the said inventories, they could not be Avithout 
 much prejudice deprived of that which belongs to them of 
 identifying and raising and re-aftixing the seals at each 
 ajournment of the said inventories Mhieh would inconve- 
 
— 10 — 
 
 nience the parties by compelling them to avoid expense, to 
 have recourse to them to the exclusion of the notaries who 
 would thus be deprived of one of the principal functions of 
 their office, and being moreover persuaded that the public 
 >velfare is to be preferred to that of individuals particularly 
 in matters of this nature in which recourse must of necessity 
 be had to officers of justice or of practitioners, we provisio- 
 nally and until such time as it shall have pleased the King 
 to order otherwise, do older that the Uevtenants gln^raux 
 and the notaries of this town shall make the inventories in 
 questi(»n concurrentlv accordini; as thev shall have been 
 requested by the parties, with this restriction that the lieute- 
 nants gdn^yaux shall attend at such as the notaries shall 
 have been retiuested to make, only at the first adjournmont 
 to identify and raise their sealis, which they will afterwards 
 hand over to the notary entrusted with the making of the 
 inventory, unless the party should request otherwise." 
 
 We ([uote these documents to show clearly tluit from 
 the earliest jjcriod in this country, the notarial jtrofession was 
 assimilated to that in France, and that in conformity with 
 the old a. "t'ls it Mas admitted to have the right to make all 
 acts of voluntary jurisdiction. It would, moreover, suiVice to 
 go through the minutes ot the notaries of that time to see 
 that inventories and acts of voluntary jurisdiction were 
 es.'sentially part of the duties of the profession. This was also 
 the case after the cession. Wliun in 185o, the old Tarliament 
 of Canada undertook to legislate on voluntary licitations (IG 
 Vict, chap, liOo), it is not to be supposed that new law was 
 thereby introduced. On the contrary, it is stated in the 
 preiimble of the act, that in order to avoid inconvenience 
 delays and exjjense it is desirable to regulate the jn'ocedure 
 in voluntary licitations. This was simply regulating that 
 ■which custom and the oUl hiws already authorized. Notaries 
 
— 11 — 
 
 were not invested with new functions, but were fully- 
 acknowledged to enjoy a right which had never been disputed. 
 And so much is this the case that section 2 of the Act states 
 " that proceedings shall be transmitted to the judge for homo- 
 logation with a petition wltich every notary is authorized 
 hereby to certify in the ordinary way." 
 
 To conclude with the (question of inventories, let us say 
 that the codifier.s, by taking away from notaries the right to 
 pray for tiieir judicial closure, deprive the profession of a right 
 which it has admittedly had at all times in the colony. We 
 refer specially under the French regime to the register of 
 closures of inventories from the 27th April, 1744, to the 14th 
 May, 1759, the only one which has been preserved. 
 
 The functions of the notary in this i)articular are so well 
 recognized that sometimes the Intendant delegated to him 
 the power of closing the inventory and of swearing the parties. 
 (Cf. an ordonnance of the Intendant to notary Saillant, Gth 
 June, 1750), Similar cases are to i)e found in the archives of 
 the military period, '.aid of that which extends from 1767 to 
 1785. 
 
 We are aware that for some years, the tendency of some 
 judges has been to interpret Articles 298 and 299 of the 
 Civil Code so as to prevent notaries from conducting the 
 sale of the property of minors ; but that jurisprudence has 
 no justification either under the old laws nor under those 
 passed in our Province since its foundation. At its sittings 
 of May and October, 1882, thii Hoard of Notaries ja-utested 
 against the report of the commissioner for the codification of 
 the Statutes M'liich suggested the suppression of the judicial 
 power held by the prothonotaries and notaries in matters of 
 jurisdiction. We refer to a memorial addressed by it at the 
 time to the Attorney General, the Honorable Mr. Mousseau, 
 It was so complete and the reasons therein set forth were so 
 
— 12 — 
 
 weighty that those who were opposed to tbp practice followed 
 at the time thought fit to go no further. The Honorable 
 Judge Eamsay himself took the trouble to write to the Attor- 
 ney General upholding the position taken by the notarial 
 professiou. It is worthy of remark that the codifiers of the 
 Civil Code who had recommended to take away from the 
 prothonotaries and commit to judges the power to homolo- 
 gate i^roceedings made by notaries admitted the necessity of 
 leaving the notaries the exercise of these important functions. 
 
 In France, even in the case of forced licitations or parti- 
 tions, the parties may be sent before notaries, as appears by 
 article 970 of the Code of Civile Procedure. Carre, vol. V, 
 Loi de la I'roct^dure Civile, pp. 151S-15I9, No. 2504,informs 
 us that this right of the notaries had been disputed, but that 
 subsequently all the authors who have written on the ques- 
 tion and the judgments of the courts have held otherwise. 
 This opinion, he adds, does not seem to him susceptible of 
 doubt under the old law and it is still more manifest 
 under the new law. We \\'oulii also refer the reader who 
 desires to thoroughly examine into this important (question, 
 to the profound and well supported essay published by Mr. 
 L. Belanger, Notary, in the lievue Lc'gale last spring. 
 (Vol. I, p. 186). 
 
 If it be desired to ascertain what formerly took ])lace 
 respecting tutorships and curutorships, the old archives bear 
 witness to the fact that the authorities almost invariably 
 delegated their powers to notiries, even under the French 
 regime. 
 
 We are therefore surprised to find that the learned judges 
 entrusted with the draftiui' of the Civil Code referred to this 
 legislation as rather recent, (Cf. 1st, 2nd and 3rd Keports 
 1865, p. 20i'i). It is sufficient to look at the registers of the 
 ordonnances of the Intendants to ascertain the custom as it 
 existed inider the French regime. 
 
— 13 — 
 
 AVe will here give some of the ordonnances made on the 
 subject. If more numerous proofs are required, we can furnish 
 them, but we do not wish to overload a memorial which is 
 already lonj^ enough. 
 
 1715 — January 4. Commission to Sr. St. Surain, notary, 
 of the Seigniory of Batiscan, to proceed to the election of a 
 tutor and subrogate tutor to the children of Pierre Arcan. 
 (Reg. ord. int. vol. 6, p. 147). 
 
 1718 — July 7. Ordonnance bearing a commission toSieur 
 Jeanuot, notary, for deeds of tutorship in the Seigniory of 
 Grande Anse, Kiver Quelle and Kamouraska. (Reg. ord. int. 
 vol. 6, p. 310). 
 
 1720 — March 9. Ordonnance bearing a commission to 
 Sieur Jeannot, notary, of the Seigniory of La Bouteillerie, for 
 the election of a tutor to the children of Pierre Courteau. 
 (Ibid. p. 357). 
 
 1721 — April 18. Commission to Sieur Jeannot, notary, at 
 River Quelle, to make a partition of the property of the late 
 Jeanne Savouret among the heirs. (Ibid, vol, 7B, }). ^9). 
 
 1722 — September 3rd. Qrdonnance authorizing Sieur 
 Jeannot, notary, at River Quelle, to close the inventory by 
 him made of the property of the community between Pierre 
 Roy, of Grand Kamouraska, and the late Marie Martin, his 
 wife. (Ibid. vol. 8, p. 115). 
 
 1723 — January, Ordonnance authorizing Sieur Abel 
 Michon, Notary, of the South Shore, to ])ioneed to the election 
 of a tutor to the minor children of the late Louis Cote, of 
 Pointe a la Caille, aud then to make an inventory of the 
 pro])erty of the said succession, (ibid. p. 4, vol. 9.) 
 
 1723 — February 11. Ordonnance for holding a family 
 council before Sieur Jeannot, Notary, to give their opinion as 
 to whether it is to the advantage of the minor children of the 
 late Guillaume Paradis to sell an immoveable belonging to 
 them. (Vol. 9, p. 10, ibid.) 
 
— 14 — 
 
 1728 — February 15. Ordonnance appointing Sieur Jean- 
 not, Notary, at Eiver Oiielle, to proceed to the election of a 
 tutor and subrogate tutor to the minor children of the late 
 Andre Minier, of Grande Anse. (Vol. 1-i, p. 14, ibid.) 
 
 1728 — February 17. — Ordonnance that the tutor and 
 subrogate tutor of Marie Anne Pelletier, minor daugther, shall 
 meet at the office of Sieur Jeanuot, notary, with the relations 
 to draw up a deed of acceptation or of renunciation to be 
 made of the succession ofNoiil Pelletier, her father. (Vol 14, 
 page 15, ibid.) 
 
 1734 — April 7. — Ordonnance authorizing Sieur Pichet, 
 notary, of the Island of Orleans, to proceed to the election of 
 a tutor to the minor children of Joseph Faucher. (Ibid, 
 vol. 22, p, 35.) 
 
 1740 — January 23.— Ordonnance authorizingMtre Jeannot, 
 notary, of River Ouelle, for the election to be made of a tutor 
 and subrogate tutor to the minor children of the late Francois 
 Sirois. (Vol. 28, p. 2, ibid.) 
 
 1741 — March 4. — Ordonnance ajipointing Mtre Jeanuot, 
 notary, of the South Shore, to proceed to the election of a 
 tutor to the children of widow Noel le Sot. (Ibid. vol. 29, 
 page 16.) 
 
 It is well to add that under the French regime, nearly all 
 petitions jtraying for the convocation of family councils are 
 signed by notary. To be convinced of this it will suffice to 
 go through the records of tutorships from 1698 to 1706. We 
 will quote the particular case of Notary Normandin, who, in 
 1706, signed on behalf of the petitioner a demand of tutor- 
 ship and of inventory. Under the English regime we draw 
 the sjiecial attention of the coditiers to the register of tutor- 
 ships of 1786, a year after the division of the professions of 
 advocate and notary, that most of the petitions praying for 
 the convocation of fiimily councils and the homologation of 
 the proceedings are signed by notaries J. Bte Panet, of Lo- 
 
— 15 - 
 
 rette, Alexandre Dumas, L. Cazes, Riveriii, Deschenaux and 
 Levesque. . • 
 
 It is also well to notice that innnediately after tl^e cajjitu- 
 lation of Quebec, the English governor appointed two judges 
 or commissioners Messrs. Lafontaine and Cugnet, one for the 
 south shore and ihe other for the north shore, sjiecially to 
 take cognizance of all these questions of tutorsliip and of 
 successions, and that all the proceedings before them were 
 conducted and signed by notaries for their clients. 
 
 But, it may be said, what is the use of quoting precedents 
 from the French regime ? Can it be ignored that under this 
 regime the profession of advocate did not exist, and that it 
 was but natural that notaries should conduct these non- 
 contentious proceedings ? 
 
 Our pretension, say our adversaries, rests on the act of 
 1785 (25 Geo. Ill, ch. 4) which divided the profession of 
 advocate from that of notary and forbade the latter to conduct 
 any proceedings before a (;ourt. 
 
 Let us premise that we refer to precedents under the 
 French regime to establish the anti([uity of the right of 
 notaries to conduct non-contentious proceedings. We are 
 also aware that under this regime advocates were expressly 
 forbidden to settle in the country inasmuch as their doing so 
 was considered prejudicially to the interests of the colony, 
 (Ed. et Ord. vol. 1, pp. 113, 116, 118, 127). As to the law 
 of 1785 to which our adversaries refer, it is easy to show that 
 they find in it much more than it contains. 
 
 Section 7 of the Statute enacts that " no person being a 
 notary, shall be permitted to plead, or practise as a ban'ister, 
 advocate, solicitor, attorney, or prochar at law, in any Court 
 in this Province, or directly or indirectly sue out any writ 
 or process whatever or commence, carry on or defend, any 
 action or suit in the name or on behalf of any other person 
 
— 16 — 
 
 whether h)y original writ, or on appeal, in any of His Majes- 
 ty's Court within this Province : on pain of being disquali- 
 fied from acting and exercising the functions of a notary as 
 above said." 
 
 What is there in this to prevent a notary from presenting 
 to a judge in chambers or to the prothonotary for homolo- 
 gation, the documents which he has drawn in his capacity as 
 notary or as delegate of the court as well as the necessary 
 petitions therefor. Would not the same section 7, which 
 forbids advocates to pass any deed or contract or to conduct 
 any other business legally within the province of the notary 
 also deprive them of the right to make proceedings which 
 are a natural consequence of acts of voluntary jurisdiction 
 which notaries by custom and by law are authorized to 
 conduct. 
 
 Moreover, it is established that from 1785,afterthe passing of 
 this Act 25 George III, notaries continued as previously to 
 present petiti oiis to judges and to the clerks of the Court of 
 Prerogative.", of Common Pleas, and of the King's Bench, 
 respecting non-contentious proceedings. It is only necessary to 
 consult the archives of these courts to be assured of this. They 
 are found signing petitions in the name of their clients for the 
 probate of lu)logra])h wills and of wills made in the English 
 form. " Cf. Pegistres des testaments olographes de 1789 a 
 i824 ot spocialement en 1816, p. 430." 
 
 The legislators under the luiglish regime understood so 
 well the part to be taken by notaries in all matters of proce- 
 dure relating specially to minors and successions that as 
 early as in the second session of the first Parliament, in 1793, 
 they authorized the judges to appoint notaries to preside over 
 family councils when minors were domiciled at more than 
 fifteen miles from Quebec or Montreal. (34 Geo. Ill, c. 6). 
 The same power was given them for the alfixing and raising 
 
— 17 — 
 
 of seals; and on consulting the records, it will be found 
 that nectaries proceeded at that time by })etition as under 
 the French Hjimc. Judges hud conferred upon them- 
 selves all the powers of the old Intendants in such matters, 
 Geo. Ill, ch. 6, s, 8. And let it be observed that the right 
 so granted to notaries was not given them at their own 
 request, but by a general law ja-oviding fur the administra- 
 tion of justice in the Province. 
 
 The object of those who governed, when taking these 
 measures, was to save parties from expense and to simplify 
 proceedings. It is for the same reason that in 1808 (4S Geo. 
 Ill, ch. 22), ])0wer was given to notaries to administer the 
 necessary oath of oHice to tutors. It was also thus, that by 
 the force of circumstances, the authorities were ])rouglit to 
 give notaries powers which had hitherto been exercised by 
 the courts. 
 
 In 1851 (14-15 Vict., ch. 59), atiother stej) was taken by 
 authorizing notaries to call family councils without the 
 authorization of a judge, even when the j)arties did not reside 
 beyond fifteen miles from Montreal and Quebec. This power 
 was confirmed by a declaratory act of 1854 (18 Vic.,ch. 17). 
 
 Let us repeat that the profession did not solicit these 
 privileges. They were givmi by the Legislator from his 
 knowledge of the wants and of the customs of the peo])le. In 
 the laws of 17'J3,as well as in tlio.se of 1808, 1851 and 1854, 
 it was acknowledged that notaries had the right to present 
 and to sign petitions adressed to a judge;. Where then is 
 there to be founil the encroachment complained of ;' The 
 practice was so well founded from time immemorial that in 
 1850, the Parliament of Canada legislated on this s[)ecial 
 point, declaring as follows : 
 
 " And notaries shall continue in the same manner as 
 advocates and attorneys, to sign in the name of petitioning 
 
~ 18 — 
 
 parties, and witliout any other special jiower, memorials or 
 petitions roijuired lor the calling together of meetings of 
 relatives and friends in cases of tutelage, curatorship, sale of 
 real piojierty < I minors and interdicted persons, divisions or 
 licitations, and other like matters concerning family affairs 
 and successions." (13-14 Vict., c. 30, sect. 11.) 
 
 The qualilication of new law or of an encroachment cannot 
 be a}»plied to a law which has been in force for half a cen- 
 tury and which is in reality the reproduction of a custom 
 known to have existed from the establishment of the colony. 
 Fifty years ago, notaries were in the continuing enjoyment 
 of a practice of which it is now sought to deprive them. 
 And in 18ot), so little did it appear extraordinary in the eyes 
 of the Legislature, that the bill known as chapter 39 of the 
 Act 13-14 Vict., was unanimously voted, in which these 
 provisions are to be found. 
 
 Since the passing of the law of 1850, the re])resentatives of 
 peo])le have 1 eeii called ujion, on four different occasions to 
 jironounce ujon the same enactment, and they invariably 
 acknowledged, in favor of the notaries, the rights which are 
 now disputed. 
 
 We will now mention different statutes passed since 1850, 
 in which section 11, chaj*. 39 of the Act 13-14 Victoria is 
 almost literally transcribed. 
 
 1" The Act 33 Vict,, ch, 28, sect, 40 (1870), This section 
 40 is the same as section 11 of chaj>, 39 of 13-14 Vict. 
 
 llie (All ^ra.s jjroposed in the Legislative Assemhly hy the 
 Honourable Mr. Ouimet, the then Attorney General. 
 
 2" The Act 39 Vict,, chap, 33, section 24 (1875), goes still 
 further than the acti: cf 1850 and 1870, It provides as fol- 
 lows : 
 
 " Notaries may piepare the non-contentious proceedings 
 specified in the third part of the Code of Civil Procedure, 
 
— 19 — 
 
 and submit tho same to the Ju(l<,'e or to tho prothonotary ; 
 and mny especially sij^n, in the name of the applicants, with- 
 ont any sjiecial i>ower, requests or petitions for the summon- 
 ing of a family conncil, in relation to tutorships, curatorships, 
 sale or alienation of the property of minors or interdieted 
 persons, ])artition or lieitation, homologation ^h yits/i«;«, the 
 affixing and the removal of seals as also all other petiti(»ns, 
 or j)roceedings in which the action of the judicial authority, 
 or of any other authority whatever is to bo asked for." 
 
 This Bill was introduced by the Honourable Mr. Chapleau 
 and was referred to a sj)ecial committee of which the Honour- 
 able Messrs Ouimet, Angers, Irvine and Laframboise formed 
 part. 
 
 3" The Act 4G Victoria, chap. 32, sect. 9, (1883), which 
 consolidated all the former laws of the notarial profession, 
 contained in the same provisions in almost the same words : 
 
 " Notaries may prei)are the proceedings specified in the 
 third part of the Code of Civil Procedure, and submit the 
 same to the judge or to the prothonotary ; and may even sign, 
 in the name of the j'etitioners, all petitions necessary for such 
 proceedings." 
 
 The Honourable Judge Loranger who was appointed to con- 
 solidate the statutes of the Province of Quebec, found them 
 so conformable to the laws which had always governed us, 
 that he embodied them in Article lio of the Code of Civil 
 Procedure. It is thus that sect. 0, chap. 32, of the Act 46 
 Victoria became the second paragraph of Article 5857 of the 
 Revised Statutes of the Province of Quebec, promulgated and 
 published under the Acts 50 Victoria, chap. 5, and 51 Vic- 
 toria, chap. 2, 
 
 The honourable commissioner, it is true, enunciated in his 
 report certain vague and ill-defined accusations with reference 
 to the looseness, the neglect, and the want of caution exhi- 
 bited in the making of deeds of tutorship, (pp. 1 34 and 135). 
 
— 20 — 
 
 TIk; iiotaiirs auswtiicd triuiuiiliiiiitly in tliu iiuMiioriiil of 1882, 
 (p. 5,) whicli wc! liiivi! alicatly (jiidUmI. 'I'ho k^ariiuil advocate 
 had rufcirnd the jtiofcssioii to tluirecords oftho court, wht'ic, 
 he said, was to be found the proof of liis alK'j^Mtions. The 
 notaries took up tlie ohallengo and undertook lo nuike extracts 
 from some of the records to prove that lh(! proceedings con- 
 ducted by them wt>ro in reality those which were made with 
 the greatest care, l)ccause tliey were subject to the closest 
 sujjervision. It was tliought jtroper to make no answer and 
 the Legislature jiroceeded, thinking no doui)t with the commis- 
 sioners who jirepared the civil code, that tlie notary, in these 
 non-contentious jtroceedings, was subject to the revising 
 power of a judge, and that society had therein a double 
 guarantee. 
 
 Moreover, no com])laint has ever been made by the public 
 in connection with the jnactico hitherto followed. In these 
 proceedings advocates have concurrent power with *he nota- 
 ries, and yet, what do we see ? Nine-tenths of the cases 
 are conducted by notaries. The public scarcely ever 
 apply to advocates in such matters. A notary is instructed 
 to wind np an estate, and is entrusted with the conduct of 
 all the ]>roceedings in connection therewith. It is found pre- 
 ferable to deal with one oificer alone, and the result is almost 
 always a saving of time and money. Let it be shown that a 
 change is required in the interest of the public and we will 
 submit to the finding. 
 
 Such is the history of the rights enjoyed by notaries from 
 the founding of the colony, and which it is now sought to 
 take away from them. 
 
 Nothing can justify the commissioners appointed to revise 
 the Code of Civil Procedure in seeking to take them away. 
 Had they given themselves the trouble to look into the 
 origin of these rights, we are convinced that they would not 
 
— 21 — 
 
 have lent tlu-iv authority to tlie cnnsnimnation of such a 
 ])iuce of iniriuity. 
 
 Five years ago, at the session of 1890, a tnemhcr tried to 
 take away from the notarit's the i>roc(!edini,'s of which tiie 
 coditiers would deprive them. Two liilis drawn for that pur- 
 jiose were rejected at the second reading. The Assembly did 
 not even do them the }\onour of voting upon tliem. 
 
 On the day after this failure, the 20tii November, 1890, a 
 widely circulated paper, the " (Quebec Morning (chronicle," 
 the organ of the English population of the C^uebec district, 
 said : 
 
 " The third part of the Code of Civil Procedure to which 
 reference is made, includes that part of our procedure which 
 recjuire no ])leadiiig and are made before the Judge in 
 Chambers. From time immemorial, they have enjoyed this 
 privilege in common with the members of the Bar, and the 
 Bar as a body has made no complaint. The system has 
 woiked well, and the only etfect of the change, will be to 
 impose higher fees and additional costs on the client, who 
 will have to retain two professional men in place of one. 
 What could have been done by one professional gentleman, 
 if this bill becomes law, will have to be done, in certain 
 cases, l>y two. Public interest is on the side of the notaries, 
 and the law should remain as it is at ])resent. Why should 
 anybody be forced to select the services of a lawyer if the 
 business .can be as well done by his notary ? As the law 
 stands it is optional for any person to select a lawyer or a 
 notary for certain proceedings. Why shouM the public be 
 deprived of this privilege ? " 
 
 This was only the expression of the jtublic feeling with 
 respect to the notarial profession. It should have been borne in 
 mind, as Intendant Kaudot s.dd in 1702, that private interest 
 should make way for that of the public. The rate-])ayers of this 
 province, so heavily burdened with taxes of all kinds, require 
 
— 22 — 
 
 prompt and economical justice. They want the complicated 
 machinery of our courts to be simplified and costs lessened. 
 They desire above all things to ])reserve their institutions, 
 and their old customs, which were honoured and respected by 
 their forefathers. 
 
 The time has not come to tear away from the oldest pro- 
 fession in the Province, rights and privileges which successive 
 governments have acknowledged and which custom has 
 solemnly sanctioned by a duration of two centuries. 
 
 We think proper to close this memorial with two important 
 quotations. 
 
 On the "iSth June, 1892, Mr. L. A. Hart, notary, arid pro- 
 fessor at McGill University, Montreal, wrote to the Com- 
 mission appointed to consolidate the statutes, as follows : 
 
 " Among other objects, the reforms proposed by your com- 
 mission very probably aim at the elevation of the legal pro- 
 fession. Your attention has also been directed to the reforma- 
 tion and elevation of the calling of bailiff. Is not the notarial 
 profession deserving of similar consideration from your com- 
 mission without entering into any eulogy of any profession ? 
 I think 1 may state that the ])ublic are greatly concerned in 
 seeing that its honor and importance be maintained, and the 
 standard of our professional work kept up. These desirable 
 results can only be achieved by indudingmen of ability, inte- 
 grity, and education to enter the ranks of the notarial profes- 
 sion. Such men will assuredly no longer do so if the field of 
 notarial work, already limited, is to be still further narrowed, if 
 the dignity of the ])rofession is to be lowered by depriving it of 
 any part of its judicial character, if, in short, its practitioners 
 are not to be furnished with the objects of a noble and legiti- 
 mate ambition. 
 
 " These remarks naturally lead me to touch upon a subject 
 about which notaries feel very sore. There has been, of late 
 
— 23 — 
 
 years, a constantly growing disposition on the ])art of advo- 
 cates to encroacli upon notarial ground. They advise their 
 clients to niake their wills, agreements, &c., as much as })os- 
 sible under private seal, in urder that they may have the 
 drafting of these documents, they attend to the probate of 
 wills, the holdingof family councils before the prothnnotaries, 
 the petitions and other proceedings, for the sak, of the j)ro- 
 perty of minors and other disqualified persons, builders' pri- 
 vileges, renewals of registration of real rights, declarations of 
 transmission by will and b^' iuccession, and a host of other 
 matters, all of which have until lately been properly consi- 
 dered to be essentially notarial work. Unless this disposition 
 on the part of advocates be checked in some authoritative 
 way, there will soon remain com[)aratively little for notaries 
 to do, an inferior class of notaries will come in, and the public 
 will ultimately suffer. " 
 
 When the banking laws were consolidated, one of the 
 most eminent members of the Federal Miiiistery of that 
 time, the Minister of Justice, Sir John Thomi)son, said : — 
 
 " 1 would be happy to see the notarial profession established 
 in all the provinces of our Confederation, in view of the 
 numerous and incontestable services which it renders every 
 day. I shall do all in my power to preserve intact the rights 
 of notaries in the Province of Quebec." 
 
 Should not the opinion of this stateman induce those who 
 oppose us, to do us at least the justice which we claim. 
 
 On behalf of the Committee of Legislation : 
 
 V. W. Lahue, President, 
 E. A. Beaudry, 
 H. Brodie, 
 L. P. SiRois, 
 
 J. E. BOILY, 
 
 J. Edmond Eoy, Secretary. 
 
— 24 — 
 
 As we are about to sign this memorial, the press brings us 
 the report of a speech which the Honourable Attorney General 
 Casgrain made in tlie Legislative Assembly when moving 
 for a committee to examine the draft of the lievised Code of 
 Civil Procodure. Wo are pleased to find that the learned 
 advocate explained to the House the importance of the change 
 proposed by the codifiers. " Is it right," caid he, " that the 
 notaries should be dejjrived of part of the functions which 
 they have hitherto exercised ? 
 
 " I draw attention to the fact that notaries were tlie first 
 advocates in this country. 
 
 " On reference to the History of Canadian Law by Lareau, 
 it will be found that as advocates were not then known in 
 the colony, })roceedings were drawn up and conducted by 
 notaries or by baililfs bearing pcjwers of attorney. It was only 
 after the conquest, I think, that the distinction was made 
 between advocates and notaries, and the latter were allowed 
 the right to appear before the courts to conduct non-conten- 
 tious proceedings. The same system obtains in France. In 
 England, where the legal profession is divided between attor- 
 neys or barristers and solicitors, solicitors are not allowed to 
 plead before the courts, but may re[»resent parties before a judge 
 in chambers in certain cases. About two years ago a bill was 
 presented to this House having for its object to prevent nota- 
 ries from representing ])artiesin the proceedings mentioned in 
 the third part of the Code, but it was not adopted. I do not 
 know whether the House desires to reconsider its decision. 
 We must remember that we are not here to re[)resent advo- 
 cates or notaries, farmers or doctors, but that our duty is to 
 make the best possible laws for the public in general, without 
 attempting to benefit one class of society more than another." 
 
 We would have preferred a clearer expression of opinion 
 from the Honorable Attorney General. We are, however, 
 ha[)py to see that he admits the distinction between the profes- 
 
— 25 — 
 
 sions of notary and advocate, here as in France and in 
 England, and that he assimilates the notarial profession in 
 Canada to that in France and to that of solicitors in England. 
 This is a point in our favor, 
 
 Lareau is not quite accurate in saying that under the 
 French regime the notary exercised the functions of an advo- 
 cate. We think it ])roper to correct that statement. Before 
 1760, in Canada, parties in person or others holding their 
 power of attorney were admitted to plead. Notaries and 
 bailifl's appeared before the courts and conducted contentious 
 proceedings ; but then, it was only as practitioners. Non-con- 
 tentious proceedings were conducted by notaries. 
 
 From 1760 to 1765, this legal or judicial state of things 
 continued in the midst of the confused and transitory cha- 
 racter of the times. 
 
 In the spring of 1765, the advocate appears prominently. 
 (See Collection Haldimand B-I-Vol. I, p. 23). In 1766 
 the inhabitants ja-ayed by petition that lawyers, both notaries 
 and advocates be maintained in the exercise of their func- 
 tions. From that date to 1785, some advocates practised as 
 notaries and some notaries as advocates ; but in order to do 
 so, they had to obtain two dilferent commissions from the 
 Governor. The advocate was not ipso facto a notary nor 
 the notary an advocate. Many followed but one of the two 
 professions. Thus, we see, in 1780, Charles SteAvart request- 
 ing a license to carry on the two jtrofessions of notary and 
 advocate {Collection Haldimand, B-217 p. 131). 
 
 It was also in the same year that the notaries prayed to 
 be maintained in their jtrerogatives which were disputed by 
 certain advocates. 
 
 It was Governor Haldimand, who in 1784, decided to pre- 
 vent in future the same person from exercising the j)rofes- 
 sions of advocate and notary, as this plurality of profes- 
 
 ••»***•' 'i*«**«* >'•"•.••' ••>• 
 •••••• •. • ••• *• •• 
 
 !.•".• • . . • • . •.-•«•. 
 
— 2(; — 
 
 sions <:;ave risn to abuses ami was the occasion of useless 
 litigatif)!!. 
 
 This was the origin of tlie Oi'diiiance 25 George III, chap. 
 4, which was adopted notwithstanding the ])rot('stations of 
 those who practised both professions simultaneously. 
 
 During the whole of the long period of years from 1035 
 down to 1785 it is us notaries, and not as replacing advo- 
 cates, practitioners or attorneys, that notaries conducted non- 
 contentious proceedings. 
 
 The Ordinance of 1785, while setting apart the two ])ro- 
 fessions, continued each one in its rights and preserved to 
 each its ])roi)er functions. 
 
 We desire to give prominence to this point of history, 
 because from an attentive examination of it will appear more 
 clearly that notaries, when they ask to conduct proceedings 
 in chambers, claim only the continuation of a right which 
 they have at all times held, alone, under the French rdgime, 
 and concurrently with advocates, under Knglish rule. 
 
 We venturer to hope that the broad views expressed by the 
 Attorney General, when he says in his si)eech that the laws 
 must not lie made from the standpoint of any one particular 
 profession, but in the general interest, will be acted upon. 
 
 Three of our ct)u//'^>"e8, the Honourable Mr. Marchand, and 
 Messrs Tetrault and Gladu have been added to the commit- 
 tee to which the draft of the codifiers has been referred. It 
 is a step in t);e direction of justice. It is to be believed that 
 the committee before comintj; to a final conclusion will 
 examine this memorial which we humbly submit to it, as 
 well as to all our coii.frdres in the })rofession. 
 
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