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The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre filmds d des taux de reduction diffdrents. Lorsque le (iocument est trop grand pour dtre reproduit en un seul clich6, il est film6 d partir de Tangle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'irT^ages ndcessaire. Les diagrammes suivants illu^.^ent la m6thode. 1 2 3 1 ' 2 3 4 5 6 A MANUAL OF THE PKOOEDUEE IN THB SEVERAL COURTS HAVING JURISDICTION IN THE PROVINCE OF QUEBEC, containing Thk Revised Code op Civil Procedure of the Province OF Quebec promulgated 1st September, 1897, the authorities AS reported by the CoMMIS 'ONERS, AND THE observations CONTAINED IN THEIR FiNAL REPORT J ALSO THE TARIFF OP FEES, A TABLE OP CONCORDANCE AND A GENERAL INDEX. BY VICTOR E. MITCHELL, B.C.L., of the Montreal Bar, ASSISTED BY F. L. SNOW, Law Librariaft. MONTREAL : Printed and Published by John Lovell & Son. 1897. A' -? ^ 33 >H^ 19137 GENERAL TABLE OF CONTENTS. 1. SPKCIAL OBSEKVATIONSOFTHKCOiMMISSIONEHS ^"^"''^ UPON Till-: FOURTJI KEPORT i j i '-» TABLE OF CONTENTS OF THE CODE ixxix 3. LIST OF ABBREVIATIONS Ixxxvii 4. THE CODE 1 5. APPENDIX CONTA INING FORMS 2;U 6. TAPIFF OF FEES 24H 7. TABLE OF CONCORDANCE 2S7 8. INDEX .^^c^ Eiiteie«l accoriling to Act of Parliament, in the year one tliouf-niul eight-liuiidred ami ninety-gevcn, by John Lovkll & Son, in the Office of the Mmister of Agriculture and Statistics at OttaM'a SPECIAL OBSERVATIONS. Upon the Fourth Report of the Commission charged with the revision and amendment of the Code of Civil Procedure of Lower Canada. Merc changes of expression or phrascologij in the text speak/or themselves. Ouhj material amendments will receive comment. CHAPTKR I DECI-AKATOHY AND INTKFJPRKf ATIVR PROVISIONS This Chapter contains provisions concerning the application and repeal of existing I'lw-s and rnles of pnicticp, the interpre- tation of laws of procedure, the holding and duration of ternis, the rules of order relatinor to the sittings of the courts, tl\e powers of judgt's to administi'r and receive oaths and to make tariffs in certain c.ises, tlie j)r)Wors of prothonotaries and clerks in the absence of the judg*', the transmission of records, and the powers of the Lieutenant-Govern jr to make tariffs for certain judicial officers. The Articles of this Chapter arc mostly a reproduction of the Articles of the Code of tJivil Procedure of Lower Can;ida. Adaptations have been made from the Revised Statutes of the Province of Quebec, the Code de J'roci'dnre Cirilt; of France, and the Loi sur la Proci'durc Civile of Geneva. The principal modilications appear in Articles 8, 9, 12, 13 15 and 16. ' » . . Article 8 allows all )>roceedings, including writs, which are made returnable on a Sunday or a holidny, to be returned on the next following juridical day. Article 149 modifies the form of writs of summons, and intro- duces new rules as to the delays for return and appearance Article 9 is therefore amended so as to exclude its applicatior to the cases thus covered by Article 149. N.n.—Tlw numher'nia of the Articlen as »\.iias the Chapters etc., referred to in these ouser eat ions umn the fourth report, has hern chunked, and put in accordance with t/ie offidii edition of the Code, as given in the l>ot/y of this worl,: on IV The Code of Civil Procedure. Article 13 coofern upon the prothonotary tlie additional power to adjourn the court to several juridical days in or out of terra, upon the order of the judge. The court is, by Article 12, invested with a similar power. By these changes it will be no longer necessary to have a proclamation in order to adjourn the court to several consecutive da^s out of term. Article 15 allows, during vacation, trial and judgment by default to appear in ordinary and in summary matters. (1) Article 16 declares the publicity of the sittings of courts and judges, saving certain exceptional cases. Article 24 is inserted so as to avoid repeating, in several other Articles, that powers assigned to the judge also appertain to the court. The wonls "court or" have, in consequence, been struck out of many Articles of this nature. Article 34 supplies a general rule as to all delays not specially provided for. CHAPTER II POWERS AND JURISDICTIONS OF THK COURTS This Chapter produces under one heading, and with some amendm*'nts, the g«»nertil provisions contained in various parts ot the Code of Civil Proceiture of Lower Canada, relating to the powers and jurisdictions of the courts. The first paragraph of Article 44 reproduces the first para- graph of Article II42 C. C. P., which was repealed by the Statute 14 V., c. 28, s. 3. Notwithstanding such repeal- appeals have continued to be taken to the Court of Queen's Bench in the cases to which the provision related, owing to Article 1051 C. C. P., § I. The final paragraph of the same Article is based upon Article 1142a C. C. P., which is modified so as to assimilate the rules governing appeals from the Circuit Court to those applicable to appeals in cases between one hundred and two hundred dol- lars in the Superior Court. In pursuance of the modifications made respecting trial by jury, the Court of Review will exercise original jurisdiction in cases reserved for its consideration by the trial judge. (Article 51). The territorial jurisdiction of the Court of Review in such cases is determined by Article 53. (t) Amendetl so as* to include "judgment in cases wherein there is a confession of judgment." Proceeilings in Forma Pmiperis. v CHAPTER III JURISDICTION OF JUDGRS IN CHAMBRRB Articles 70, 71 and 72 confer upon the judges the power of declaring, by rules ot practice, that certain matters other than those declared to be so by law are within the iurisdiction of judges in chambers, and also the power of adjourning any matter from the court to chambers and vice versa.' The last Article is intended to establish a complete parity in regard to appeal, review and other remedies, between judg- ments of the court and judgments of a judge in chambers upon matters within his jurisdiction. We believe thai this amendment, founded on the rules of practice of Ontario, will be conducive to the prompt expedition ot business. CHAPTERS V, VI, VII and VIII ACTIONS AND PARTIES TO ACTIONS, RTC. Chapter V contains provisions applicable to all civil notions. No important change is to be found in Chapters V, VI, VII :ind VIII. CHAPTER IX PnoCEfiDI.NGS IN FonSlA PAll'EIlIS These provisions are intended to remove an abuse, by render- ing it more difficult to obtain leave to proceed in this manner, and by taking away the right in actions for j)enaltie3 or for damages caused by slander or libel. (Articles 89, 90, 'Jl).^.rj However, we thonglit it only just that bailiffs should not be compelled to give their services free of charge, and that no ex- emption from payment of the government tax should he nllowc d. The last part of Article 89, forbidding the attorney of a party who has so obtained leave from receiving any compensation from such party for his services, is taken from the law ot Nova Scotia. Article 92 introduces a new enactment, designed for the pro- tection of a party whose opponent is firoceeding ?'h forma pau- ptris. Under the present Code, a pauper party can exact immediate payment of costs awarded in his tiavoiir upon inci- dental proceedings before judgment, although the other party's recourse against him for similar costs is valueless t^hould the VI The Code uf C'uil Proreihtrc. liiml judgment provo ndvcrst' lo ilii- i)iuii»('r party. Wc have considered it more t>((uitHbIe lu suspend tliu uxigibility of such losts until final juilgment, and to allow them to be cona- pensiited whenever the pauper party becojnes himself liable for costs. ClIAPTKll X I'LACE Of iNSTITUTiNU ACTIONS Adopting 11 principle recognized by other systems, we have remodelled Article 34 C. C. P., so as to allow the defendant to l)e summoned before the Court either of the place where the engagement was entered into or of that where it should be executed. (Article 94, §§ 3 and 4 C.) (1) The action raav also be brought before the court of the place where the defendant has elected domicile. (Article 94, § 1). Article 94, § 5, contains an important disposition re-enacted from C S. L. C , chapter 83, section 61, wliich was removed from the Code in the course of amending the former Article fis. Article 96, relating to reparation from bed and board, allows the action to be brought before the court of the last common residence of the consorts. This is intended to cover cases where the husband, being defendant, is an absentee, and where, consequently, the wife is now unable to sue here under Article 96 C. C. P. Article 99 covers a casus omissus under the former Code. CHAPTER Xr OENMCUAL RULES OP PLEADING The object of this Chapter is to suppress diffuseness, and to compel parties to plead briefly and to the point in all cases. A too frequent cause of prolixity in pleadings is the insertion of matters relating purely to evidence (2) or to legal argument. Article 105 contains an amendment designed to prevent any continuance of such abuses, and to compel pleaders to confine themselves to material allegations. While maintaining the principle that the court cannot adju- dicate beyond the conclusions (Article 113), we have, in the (1) § 4 was struck out in the amendment to tiie fourth report. (2) The fourth report was amended, however, by striking out the words "particulars of evidence, or of" l)efore'the word "argu- ment.'' ^Summons, ▼H Chapter of Amendments, aUowe'l t'lo ooncliision3 to be corrected, roodiKed, or even enlarged, provided thnt the facts alleged give rise to the new conclusions. (Article 522). Important rules affecting pleading will also be found in the Chapter of Amendments. CHAPTER XII BDMMO.VS In the General Ohseroalions forming part of our First Report, we stated that we were in sympathy with the opinion of many in believing that a fixed return-day might conveniently be replaced by an order upon the party summoned to appear within a stated number of days after service. The utility of this modificalion was demonstrated in that Report; our sole reason for deferring its completion was the desire to more fully weigh and investigate the objections urged. The result of further enquiry has been to confirm our resolution to recom- mend the cfianste ; and we accordingly submit a draft embody- ing the principle stated. The substitution of an order to appear within a stated delay after service, in place of a fixed return-day, is effec'ed by Article 149. Corresponding changes appear in Articles 121, 127, 151, 154, 161, 197, 120 and 150. The two latter Articles are designed to protect the defendant by preventing the plaintiff from holding an unserved w^rit of summons as a menace against the defendant. Article 122 gives greater facility in describing married women and widowg, and persons having no domicile, residence or place of business in the Province, and foreign firms having no place of business in the district. A new paragraph, the second, is inserted to authorize the description of the Attorney-General of Canada or of the Province under their official titles. Article 123, taken in connection with Schedule A in the Appendix to the Code, permits the use of short and precise forms of declaration in many of the most frequent kinds of action. The amendment contained in Article 124 requires immove- ables situated in a division where the official plan is in force, to be described under their official numbers, and carries out, with greater exactness, the principle of Article 2168 of the Civil Code. The prothonotary is invested by Article 125 with the power to allow service on a Sunday or a holiday. Under the Code, this power belongs to the judge only. ▼iii The Code of Civil Procedure, Article 126 is amended so aa to allow service aftei ordinary hours by leare of the judge or of the prothonotarj. Article 57 0. 0. P. allowed service at the place of business of the defendant, in default of a domicile. Article 129 allows sucb a service only in CAse the defendant has neither domicile nor ordinary residence- Article 135 is new, and is inserted because of the necessity to supply an ea^y mode of suin^ the heirs uf a deceased person, and of serving them with actions against the estate, witbin the first months after the decease, especially as the heirs are then almost always unlcnown to the creditor. The Article is taken firom the Geneva Code. Articles 136, 137 and 141 treat of summoning absentees within a uniform delay of one month, either by means of an advertisement in newspapers, or, in some cases, by service made by a literate person. Article 146 allows the judge to prescribe the manner ot serving a defendant who fraudulently evades service. Article 148, while adhering to the prohibition against a bailiff's acting in a matter in which he is interested, no longer renders bim incapable of acting in matters concerning nis relations by blood or aflBnity. This change is made in view of the fact that in many of the country districts there is only one bailiff for several parishes, and that he is often related by blood or affinity to one of the parties, who are at present subjected to the useless expense of resorting to bailiffs residing elsewhere. Article 149 reduces the delays of summons, because of the present facilities for travel and communication. CHAPTER XIII RETURN OF ACTIONS Two changes appear in this Chapter. The first consists in the strilcing out of Article 79 C. C. P., which was in contradiction with Article 159 C. C. P. A new Article (236) declares that all returns are contested by motion. The second gives the defendant a delay of three days to demand eongi-a^faut of the suit, but allows the plnintiff' to return his action upon such conditions as the judge imposes, if he makes application therefor within the same delay of three days (Article 154). Conteslaiion of the Action. Iff CHAPTER XV 1 APPIARANGI AND DirAUtV TO APPIAR Article 101 allowg the defendant to appear even ntter the last day of the delay allowed for appearance, provided that the plaintiff has not proceeded in the meantime ; the delnys for pleading run as though be had appeared on the proi)er duy. CHAPTER XVI CONTRSTATION OF THB ACTION Section I (Articles 164 to 190) deals r. i Preiiminat^ iiSxcep- tions. Henceforth, preliminary exceptions are to be lugcd by way of motion, made '.7ithin three days afier the rc^irn, and accom- panied by a deposit. The proceedings are summary, no written pleadings being allowed save by leave of the court. In regard to the declinntory exception, we have adopted tiie provisions ot the French Code de Proeidure Civile, and of the Loi sur la Procedure Civile of Geneva, which, instead of putting an end to the action, aF . ^ it to be tran:^ferred to tire competent court. (Articles 170, 171). We have inserted in the same section, under a separate paragraph, the rule of the French Code de Procedure Civile^ whicn places the case of Lis Pendens in the Chapitre dea Renvois. (Article 173), An entirely new system is proposed in regard to defects of form. They can be the foundation of a preliminary exception only when they cause a prejudice ; there is no nullity unless they are not remedied (Articles 174 and 175). Trivial mistakes are left to the court to remedy of its own motion. Chapter XXIII of Amendments contains provisions as to the methods of remedying defects of form. Considering that Article 29 of the Civil Code is more in its place in iho Code of Civil Procedure, we have inserted it here (Article 179), and recommend its removal from the Civil Code. The only important change which is contained in Article 180 is that which gives the defendant a right to demand .se- curity for costs in popular and qui tarn actions, and in actions for damages caused by slander or libel. (1) (l)The fourth report was amended bT striking out the words " and n actions of damages for Blunder and libel." II The Code of CivU Procedure. JSection II deals with Conteatalion on tlie Merits, :ind includes the Inscription in Law and the Defence. Law issues are raised by inscription demurrer, as heretofore. (Article 192K in law, and not by Mr. Justice Larue is of opinion that grounds of law, which arc an answer to the merits of the action, cannot, without overturning our system, be classed among grounds of pre- liminary exception, as is done iu the New York Code. Moreover, in the majjrity of cases, the preliminary delays would be insufficient for the parly to whom the right is given. Mr. Justice Davidson is, however, of the belief that jjlead- ing:' should be divided into preliminary exceptions and de- fence's In the former, he would include matters of whatever kind, which c&n be urged to show that a defendant need not plead to the merits at all. He would ex'end this principle to grounds of law to be urged against the sufficiency of any pleading. He declares that the law as it stands, and indeed as re-drafted, provokes doubt as to whether an attack should be made by exception to the form or by demurrer. Thus : C U. P. IIG. "The following grounds must be pleaded by exception to the form : " 1. Informalities in the writ of service ; " 2. Informalities in the declaration when it contravenes the *' provisions of Articles U, 19, 50,52 and 56." As now drafted (Article 174) : "I. Irregularities in the writ, declaration or service ; « ') <' n "4. The fact that a statement of the causes of action is not ^' contained in the writ or in the declaration ; '' 5. Irregular description of the object of the demand.'' C. U. P. 147 : "A demurrer may be pleaded when the facts *' alleged in the declaration do not give rise to the right of *' action which the plaintiff seeks to exercise." As now drafted (Aiticle 191): ' An issue of law may be raised as to " the declaration whenever the facts set « do not give rise to the right claimed." the whole or part of up, or some of them, Inchhnlal rrooeduigs. XI Mr. Justice Davidson refers to M« (jreevy c. Bcaiicage, M. L. R., 7 Q. B. 89, as a precedent wliifli strongly' justifies his position, "and emphasizes the difficulty of sometimes deciding vvliethef a declaration is bad in the sense of an exception or of a demurrer. By way of precaution, both are in some cases pleaded. Grounds of law agninst a defence or other pleading are also {)roposed by way of inscription. (Article 200). Articles 19(J to 214 deal with the Defence, Answer? and Replies. Under the generic term of Defence are included all pleas to ti)e merits other than the inscription in law. All distinctive appellations hitherto in vogue are abolished- The demand of plea is abolished. An answer is necessary only when the defence contains new facts. (Article 198). Article 199, in accordance with the decisions, allows the filing of a supplementary defence or answer, now known under the name of puis darrein continuance. Article 202 compels a j>arty to answer his opponent's allega- tions with precision. A general denial can only be pleaded alone. Article 203 authorizes the use of short and precise forms for raapy of the defences most frequently employed. CHAPTER XVII IN(']Dfc.NTAL l'HOCKEDlNfi.S The first section ns to Incidental Demands contains few changes. Article 216 makes a simple declaration suffice for the demand, «nd does away with the necessity for a petition, which was fast growing obsolete in spite of the Code. Article 218, relating to cross demands by the defendant allov/s them to be urged tven after the defence if the Court thinks fit Interventions, by Article 221, are also to be made by declara- tion. They still reed to be received v>n a judge's order (Article 222). Although this requirerae»\t has oeen assailed, it is difficult to see how it can be removed without rendering the intervention X!l The Code of Civil Procedure. a fruitful cause of delay. The necessity for reasons is done away with ; they must be stated in tlie intervention itself. (Arti- cle 221). Article 224 follows the principle of Article 219 as to rules and delays, modifying in this respect tlie present law. The proceedings on Improbation are undoubtedly tedious and iniricate, but they were made so intentionally. However, at least one useful change will be noticed : the onerous requirement ot Article 168 C. C. P., that a descrip- tive statement of the document be made, is struck out as un- necessary. Anew Article (236) is inserted under a distinct heading, in order to render it of general application. It provides a uniform rule for the contestation of all returns, whether by a sheriff, a bailiff or other judicial ofhcer, or by any person authorized to make a return ; and thus supersedes the provisions contained in Articles 79 and 159 C. C. P., which are contradictory in some respects. Under Disavowal, Article 252 subatitutes a disposition in conformity with the doctrine, fox the incorrect reference for- merly appearing in Article 193 U. C. P. The latter Article referred to the Chapter on liequele Civile, as containing rules governing disavowal after judgment ; but, as a matter of fact, Article 505 C. C.P. takes it for granted that the disavowal was duly made after judgment, without specifying how it was made. Under Discontinuance. Article 276 contains an amendment in accordance with the decisions by making service unnecessary when the discontinuance is made at the trial. Peremption of actions is now reduced to two years. (Article 279 ). Section X, as to Discovery and Inspection of Documents, throws into order and elaborates the former provisions govern- ng the examination of the parties before trial. Art icle 286 allows the exanvnation of persons o'her than the parties, and whose position, for the purposes of these Arti- cles , bears close analogy to that of individual parties, but who were hardly included under the somewtiat narrow terms of the orm er text. T he same Article provides that the examination may be had h er before a judge or the prothonotary ; and Article 287 IVial. XllI slates that disputes are decided by a judge. The latter point was decided otherwise under the former law, owing to the fact that the power was not expressly given. Article 287 declares, in precise t-rms, that this mode of exam- ination is subject, in general, to the same rules as govern the- summoning, examination and punishment of witnesses and the taking ol evidence at the trial. Article 290a removes doubts upon the question whether costs of Discovery are costs in the cause. An affirmative solution is adopted. CHAPTER XVIII TRIAL This Chapter has been almost completely re-arranged and re- modelled. The principle which pervades It throughout is that the trial of actions must be conducted under the direct super- vision of the courc, in the manner now known as " Enquete and Meriis." The principal reform introduced in connection with trial con- sists in the abolition of the enauete system. The public exam- ination of witnesses and public trials represent, in our belief, princijdes of the highest importance. The role d'enqueie is direcily responsible for diffuse depositions, excessive charges for evidence and procrastinating methods. It is the enemy ot Bench and Bar. What we need more than all is tlie incisive examination of witnesses in open cjurt, and the immediate mastery by the court of all the issues and facts, through that personal contact with the case which only a trial can give. As material parts of the method of trial which we propose, we have in all cases allowed the examination of the parties them- selves, experience having amply established the wisdom of the pro visions contierring this right in commercial cases. (Article 316) " Mettez,'' says Seligman, " les parlies en presence devant le juge, obiigez-les k exposer elles-ineines les faits, duns leu • sim- phcite t\ leur maniere. Exigez qu'elles .dpondent de leur propre bouche, sans preparation, aux questions qui leur .seiont adressees vous verrez bientot les nuages se disperser, les fails seclaircir, la vcriie se montrer dans lout sou jour; soit que les parties de bonne foi n'< ussent be.xoin que d'line inter- vention inipartiale, eciairee ; soil que la penetration du juge ait reconiiu la mauvaise foi de I'une d'elles k iravers ses rcponses ^vasives, ses reiict-nces, st-s contradictions." (1) Article 295 introduces the requirement that a copy of the pleadings be hied for the use of the trial judge. (1) R^ormea de la Procedure, p. 187. XIV The Code of Civil Procedure. I ' '■ Article 302 substitutes a simple order for the present writ of Habeas Corpus ad Testificandum. Article 312 reproduces Article 1230 of the Civil Code, which is more in place in this Code. Article 314 merges, with slight alteration, Articles 2G0 .ind 252 of the former Code. It is recommended that Article VIM of the Civil Code be therefore repealed. Article 316 makes an important change in the rule of C. C. i*. 251, and Ibrms a sequel to the amendment already made by 54 Victoria, cimpter 45, section 2. Parlies are allowed to testify in their own behalf in ordinary as well as in commercial cases, but are required to tender tiieir evidence at the opening of the case before the other witnesses. (1) We, therefore, recommend the repeal of Article 1232 of the Civil Code, and of its amend- ments. Article 320 modifies the rule of Article 262 C. C. P., which excluded the evidence of the bailiff who served the writ. Articles 321 and 324 are retained; but an opinion ^\\-H among us that they should be amended in accordance with sec'ion 23 of the " Canada Evidence Act, 1893," 50 V. (C), c. 31, so as to allow persons having conscientious scruples against taking an oath to take an affirmation instead. Article 337 is intended to remedy a gross abuse. A party who examines more than three (2) witnesses to prove one fact is denied the costs of the additional depositions unless the court S|)ecially orders otherwise. Article 281 of the French Code absolutely disallows the costs of more than five witnesses summoned to prove one fact. Thia principle should be found a powerful factor in keeping the costs of litigation within a reasonable compass. Article 340, following the English rule, allows cross-examina- tion upon all the facts in issue, and not merely those arising from the examination in chief. In this way the court is enabled to hear knows. at once, in a connected form, aV. that the witness Article 343 contains a useful provision relating to the admis- sibility of former dispositions. We recommend the appointment by the Lieutenant-Governor of salaried stenographers, to be governed by a special Act to be submitted hereafter. (l)The fourth report was aniendod by striking out the words *' provided tl at lie la Iieard before any other witness," in the second paragrapli. The third paragraph was also struck out. (2) Now amended to five witnesses. Incidents of Trial and of Ecidenee. XT Article 347 provides that the stenographer's notes are not to be transcribed unless tlie case goes to appeal or to review, or tlie judge specially orders. The transcription is also required in certain cases wherein there has been a trial by jury. Most of the complaints as to ruinous bills of costs are caused by the large sums payable for transcribing the evidence. The system now proposed is founded on that prevailing in New York, and aims at relieving litigants of the costs of extending notes, except when the cnse has to go before judges wlio have not heard and seen the witnesses. CHAPTER XIX INCinENTS OF IIUAL AND OF EVIDENCE Amendments on points of detail only have been made to the provisions ag to inteirofiratories on articulated facts, which are preserved by the draft, because, while it is recognized that the right to testify in one's own behalf materially affects the utility of this restiictive form of examination, they remain as an effective means of securing Judgment pro con/exHS and of pre- venting a party from shirking attendance. The concluding provision of Article 359 allows articulated facts to be issued against a defendant in default to appear or to plead, as soon as he is so in dt'fault. Article 231 C. C. P., in regard to the divisibility of a judi- cial admission in an.swers to interrogatories on articulated facts, is struck out of this Chapter. It is suggested that it be gener- alized and be placed in the Civil Code after Article 124i^. It would then be in its proper place, as forming an exception to the rule of that Article. Articles 443 to 447 C. C. P., relating to the Decisory Oath, are repealed, as also Articles 1247 to 1253 of the Civil Code. This proceeding is so cumbersome and has been of such rare occurrence that its usefulness is at an end. The drafi omits Articles 343a to 3434 C, C. P., inclusive, because their provisions are wholly unused. Article 355 confers upon the judge the power to authorize the oxamination, by consent, of a witness out of court. XVI The Code of Civil Procedure. CHAPTEIl XX FKOOF AND HEARING, AND PROOF, IN CASKS B7 DEFAULT AND EX PARTE This Chapter brings together all rules a^ tc proof iu default and ex parte cases, which, in the existing Code, are found under diii'erent headings. Some amendments will be noticed. In the first place. Article 418 extends the rule of Article 317, §1, C. C. P., in such a manner as to allow cases falling under Articles 89, 90 and 91 0. C. P. (Article 532 U. P.; to be proceeded with in the same manner as other causes. Again, the same Article allows inscription for proof and bearing, as well as for proof onlj, in all cases by default and fx parte. Article 420 is substituted for Article 318 C. C- P. This new provision is necessitated by the amendment contained in the second paragraph of Article 418, which allows inscription for proof and hearing. In cases so inscribed, the proof being taken m the presence of the judge, the rule of Article 347 would apply, and the depositions would not be transcribed. Article 420 will consequently apply only to default and ex parte cases inscribed for proof. \l In Articles 533 and 534 will inscription tor proof only. be found rules relating to the *%:•■ CHAPTER XXI m TRIAL BY JURY The first amendment of importance is in Article 422. The right to trial by jury is conKned to actions over four hundred dollars. Article 427 is intended to establish a different rule from that which prevails under C. C. P. 352. (Article 424 C. P.) It Whs held under that Article that no amendment of the assign- ment of facts would be allowed after the day for trial was fixed. (1) The party objecting was therefore forced to appeal from the interlocutory judgment fixing the facts ; if he did not do so he was bound by the assignment. (1) Mail Printing Co. vs. Canada Shipping Co., M. li.B.^iQ.'B. 2?f^ ; Brassard ts. Canada Life Assurance t'o.,"M. L. R., 3 S. C. 388. lis! Trial by Jury. xvii |1 The new Article permita an amendment at any time before verdict; iflhe court refuse the appliciition, it maybe ground for a new trial. (Articles 498, s. 1, 49J.) Only one change is made in the methods of forming the jury list, viz., the special list contains the names ot'Ji/ti^ instead of jurtif-etghf {jersous. This is in order to better the cliauces of obtaining a jury. Article 442 states a new rule as to the forfeiture of -.he right to a trial by jury. Article 457 indicates the mode of trial of challenges, and re-. moves the existing distinction between cliMllenges fur cause and to the favour by providing but one method of trial, viz : by triers. Of course, wlien thn matter of the challentfe is purely of law. tlie triers must conform to the directions of the judge. (Article 474.) Article 4G9 contains the power on the part of the judge to dismiss the action when the plaintiff has given no evidejice on which a jury could find a verdict. This is the rule in England and in Outario, (I) and is analogous to that followed in crim- inal cases with us. Article 470 is very important The need of a general provi- sion of this kind has been long felt. Article 483 removes the requirement that the verdict be " ex- plicitly affirmative or negative " ; if it is explicit it is sufficient. Article 490 introduces a comprehensive provision as to ill or defaulting jurors, taken in great pari from the California Code, Article 6ir>, in preference to the principle stated in Article 420, section 'i, C. 0. P. The French criminal law contains a i)ro- ▼ision for the swearing in of additional jurors (Jures sup- pleants) in any case likely te involve lengthy proceedings. (2) A new system of judgment after verdict is contained in Art. icle 491. The trial judge enters up judgment for the party in whose favour the v<-rdict is given, '.niess he thinks necessary, for spe- cial reasons, to reserve the case for the consideration of the Oourt of Ueview. This is considered an improvement upon the old practice of sending toe parties to review to move for or (1) Eng. R. 463, R. P. O, 682. * (2) 0, I. C. F, 384 ; Dalloz K6p., Vo. " Instiuction Crimlnello," No«. i804,18<>fi. ' xviii The Code of Civil Procedure. ngainst the verdict. It follows the English practice. (1) The^ Ontario praci ice does not permit reserved cases. (2) It is sub* milted iliat tlie power to reserve for cause cannot (ail to have great utility in cases calling for special consideration. Under tho former law, the trial judge sat as a member of the Court of Review. This is, of coiirsoj not contemplated under the Articles as now re-drafted. (Article 1189.) The judgment of the trial judge is subject to appeal or review in the same manner as any final judgment of the Superior Court. Tho recourse of the parlies is thus abridged and accel- erated. (Article 492.) The remedies against judgment on the verdict are reduced to two, vi/ : new trial and different judgment. The old Articles, following the system which prevailed in England prior to the Judicature Acts, recognized three motions against the verdict, viz : the motion for a new trial, the motion for judgment non obstante veredicto and the motion in arrest of judgment. (C. C. P. 426, 431, 433.) Motions in arrest of judgment and non obstante veredicto are now obsolete in England under the Judicature Acts. Their place is taken by what is cal)*»d a "motion tor judgment." By the existing law, the court can only order a new trial, and cannot render judgment conirary to the verdict, when the lat- ter is, no matter how violently, contrary to the evidence. (3) In England and in Ontario the courts now hold a much greater power over verdicts. They may even, in extreme cases,, grder judgment contrary to the verdict to be entered. An ap- pellate court may, under the proposed changes, when it considers that it has all the materials before it to decide the c«se, ren- der final judgment at once instead of sending the case back for a new trial. An otder of this kind may be given either upon a motion tor a new trial or upon one for a diflferent judgment. This system is adopted by Articles 491 to 508, and is submitted as more conducive to speedy justice, and more in harmony with the progress of the jury system in the land of its birth. Article 498 condenses from nineteen to nine heads the causes of new trial formerly enumerated by C. C. P. 426. (1) Eng B. 463. Eng. J. A. 1873, s. 46 ; Benschor vs. Coley, 52 L. J. Q. B. 398. (2) Ont. J. A. 61, H. & L. 71. (3) Afackay vs. Glasgow Jk London Assr. Co., M. L. R., 4 8. 0. 19U ^ Tumhvll VB. Travellers* Ins. Co., 2 C. S. Q. at pp. 3 es. Amendment, XIX Article 503 contains an express statement of a most uselul principle borrowed b^our courts t'rom tbe English law. Arti- cle 504 is its correlatire. Article 505 renders accurate and precise toe former enigmat- ical terms of (J. C P. 426, paragraph 16. Article 508 deals with the motion for a different judgment^ which, as has been already stated, is substituted for the motions non obstante veredicto ancf in arrest ot judgment, nnd broaden* the scope of the remedy. CHAPTER XXn DBCrSIOX OF QUESTIONS OF LAW CPON FACTS ADMITTED This Chapter furnishts a ready and expeditious mode of ob- taining a judgment upon a question of law wben the parties are agreed as to the facts. Experience has highly approved of special cases milar provisions are in force in England, New Y Simil nia, Ontario and elsewhere of this kind. ork, Califor- It is hoped that, by this means, the real points in controvei*sy between parties may be quickly settled, without having recourse to the formalities necessary for cases in which there are issues in fact as well as in law. CHAPTER XXIII AMENDMENTS The various rules as to the extent of the power to amend, and the conditions attaching to its exercise at different stages of the case, are here brought together, and treated as far as possible in the order in which they receive application. All these provisions are in conformity with the new piinciplo- already noticed in relation to exceptions to the form, that formal defects do not entail nullity unless they are not remedied. Article 522 furnishes the only restriction upon the power ta amend, viz,, the nature of the action cannot be changed. All meritorious cases fall within the rule as thus limited. In. England and elsewhere, the power seems practically unlimited ; but tbe tendency of the decisions is to restrict it in the manner herein adopted. i: XX' The Code of Civil Procedure. The same Article also states that the court may allow the conclusions to be corrected, mofiiRed, or even enlarged, provided that the lelief demanded is consistent with the facts allef^ed. This provi.^i'. n, which introduces an effective elasticity into the teciinical exactitude of the French system of conclusions, is based upon the present Frencii law, in which ad litional or sup- |jlementary conclusions are freely allowed. (1) The rule as to adjudication ultra vetita is thus reduced to much less formidable proportions. Tiie Court cannot step be- yond the conclusions as finally amende^ and submitted at the close of the case. CHAPTER XXrv I 1' < '■' JUDGMKNT Under the New York and California Codes, Confession of Judxment before action is allowed. The urguments in favour of that system are overborne by a reference to its working in those States, where an extensive jurisprudence as to fraud has grown up in connection with the provisions. Judgment in cases by default or ea;ji>ar/c is subject to substan- tially the same rules as heretofore. Article 534 renders the inscription in « naric cases subject to rules as to notice similar to those governing inscriptions for livoof ex parte. The broad terms of Articles 5?.3 and h?A render them applic- flble to all cases of judgment by default and ex parte, as well as to those mentioned in Article 532. Article 535 settles a question upon which the practice has varied in different districts. The principle follows that prevail- ing in France, Geneva, England and Ontario. In the General Rules as to Julgment no changes of note ap> pear- Article 546 provides for the summary correction of clerical errors in judgments. Article 93 C. 0. P. states that renunciation of judgments rendered by the proihonotary, in virtue of Articles 89, 90, 91 and 92 (J. C. P., may be made at anytime before execution. No such limitation to the right to renounce exists in other matters, (1) Rousseau & Laisney, vo. " Conclusions," No. 70, ss. Voluntary Execution of Judgvienfs. xxi wiiicb are, in this wflpect. governed by Article 477 C. C 1*. The rule ot the latter Article is made applicable to all renuD- ciationH by Article 548. CHAPTER XXV COSTS The provisions of the Code as to Goats have caused mucli discussion in the past. While the awarding; of costs is left to the Court, Article 549, as amended, strengthens the principle that costs ought to follow the event, unless it is otherwise ordered through the eiercise of a strictly judicial discretion. The rule of Article 551 is intended to prevent the accumula- tion of large bills of costs in actions for alimentary allowances^ by restricting the costs to those which can be obtained in an action for the monthly allowance. Article 552 allows a personal condemnation to costs against tutors, etc., who institute proceedings clearly unfounded. Such is the univer al rule, as far as present research shows, both in the French law and elsewhere. Under Article 553, the award of costs to a party is made to involve distraction by the operation of law. This relieves the attorney from the necessity of requiring distraction at every turn of the case. The second paragraph of Article 554 contains a rule in ac- cordance with the decisions. The third paragraph of the same Article authorizes the pro- thonotary to receive affidavits, and, when necessary, summon witnesses for the purposes of the taxation. CHAPTER XXVI VOLUNTARY EXECDTION OF JUDGMENTS In Article 567, the words referring to notice of the applicatioD for an extension of the delay to render an account are struck out as surplusage, in view of Article 34. Article 570 authorizes the party accounted to, to include ia his costs those of preparing the account. Article 572 contains a change in regard to the filing of the contestation of the account, similar to that in Article 567, and due to the same motive. J^XIl The Code of Civil Procedure. Article 574, the delay to file answers to ihe conte3tation of accounts is reduced to six days- Article 576 does away with the necessity to obtain an order of the Court before proceeding to proof on the contestation of the account. By Article 581, any creditor is allowed to apply for the appoint- ment of u curator to tlie abandonment, if the plaintiff (iails to do so. CHAPTER XXVII EXAMINATION OF DKBTOBS AFTgR JITDOMBNT This Chapter furnishes a creditor, whose judgment remains unsatisfied after he has attempted to execute it, with a means of obtaining from his debtor, sworn information as to the exist- ence of f'urtner property available to meet the debt. These proceedings, which are in many respects analoarous to the Discovery mentioned in Articles 286 to 200, take place de jilano in certain cases (Art, 690), and only with leave of the judge in others (Art. 591). Examinations of a similar kind are to be found in the systems of England and Ontario, and of many States of the American Union, and present obvious utility. As appears by tlie text of the proposed Articles, this examina- tion is not intended to furnish a basis for an order by the judge, to the defendant, to pay instalments of the debt at stated inter- vals, under penalty of coercive imprisonment, as is the case in regard to certain debts cf small amount in Ontario. After extended discussion, the Commission is unable to re commend the adoption of any such stringent measure. CHAPTER XXVIII PROVISIONAL KXBCUTION Provisional execution was in vogue in the old French law. <1) As this proceeding was not repealed by the Code or by any previous law, there are reasons for considering it as still exist- «nt, under Article 1360 C. C. P. The systems of France and Geneva contain rules as to Pro> visional Execution. (2) (1) Ord. 1667. Tit. XVII, Arts. 13, 15. (2) C. P. 0. P. 136 ss. ; C P. Q. 316, 316. J\ovi»ional Execution. xxm The English law is still broader in th« same sense : eiecation Las always to be stajed bj express order, even in c tse of ap* penl. (1) The main reasons for allowing thia remedy in specified cases of uTfitacy are well stated by Jieliot and by Seligman. JJellot says: (3 " L'institution de I'appel, n6ceRsaire, indispensable pour pro- venir et pour r6primer k la fois des d6ci8ioii8 erron<$es ou iniiistei;, est loin a'^tre exempte d'inconvenients. " Les frais, les delais, dont nous avons d^montre ailleurs les " cons6quence8 f&cheusps, offrent un premier inconv6nient, " comroun h tous les appels, & ceux momes de bonne foi. La " facultd qu'a le plaideur de mauvaise foi d'abuser de ce <' moyeo en oflfre un plus grave. Ue n'est plus pour redresaer " un tort, mais pourle consoramer, qu'il y recourt. Son but eat '* atteint si, en prolongeant indefiniment une injuste contesta- " tiun, on accablant son ad versaire de frais, de d6Iaia, de d(>mar- *' clies, it parvicnt b. lui arracher, de lassitude, quelque sacritice, " h se soustraire k de Icf^itimes engagements, k 6cbapper k uue '• juste condamnalion ou A en eluder T'ex^culion. " Plusieurs dispositions de notre loi sont destinees k dcjouer " toutca ces teutativea de la chicane. Telle est celle qui, en cas " d'appel, autorise I'execution provisoire du premier jugement." Seligman says : (3) " Un moyen tr6s eflicace pour dfijouer toutes ces tentations '■'■ de la mauvaise foi, c'est le {louvoir donn(^> aux tribunaux de " premiere instance de prononcer I'execution provisoire de leurs "jugements, k la charge du demandeur de fournir caution, i^ " moina que la loi ne I'en dispense, ' Tant que la parlie con- " damnee.' disait le president de Lamoignon, 'se promet d'avoir *' quelque reasonrce en son affaire, la passion de plaider dure ^'toiijuurs; mais elle se passe au moment <^u'elle satiafait par ^'i'execution de la sentence.' Cette facultc do tribunal d'or- *' donner rexccution provi-soire ne doit etre limitee que par une ** seule exception, tacile k comprendre, c'est quand rex6cution *' serait irreparable en appel." " Elle pourrait merae etre prescrite en appel, si lea premiers *' jugea avaient omis de la prononcer, de meme le tribunal supe- " rieur aura la laculte de I'arroter s'il le juge necessaire. " Ce moyen diminuerait grandemeiit le nombre des appels *^ abusifs, et ferait connaitre la veritable utility de l'institution. *' II contribuerait aussi k aucmenter le respect des tribunaux de ^' premiere instance ; les plaideurs, craignant I'execution provi- *' scire, feraient valoir tous leurs moyens.etne songeraient pas a ^' les menager pour les debats q'li vout s'ouvrir en appel.' ' (1) Eng. R. 695, 880. <2) Procfdure Civile de Oinkve, p. 117. <3j Jii/ormes sur la Procedure, p. 241. n ■■I XXIV The Code of Civil Procedure. ' These provipions nre taken, with certain modifications, fronr the French and Genevan Codes. No mention is made in the draft — and none appears in those systems — as to judgments which of themselves crrry immediate execution. Rules relating to such judgments are to be found elsewhere, in the Civil Codfr and in the Code of Civil Procedure. (1) The French and Genevan Codes distinguieh bftween two kinds of provisional execution, viz., imi)erative and facultative. (2) We have not adopted this distinction ; we have made the remedy facultative in all cases. In stating the cases where provisional execution lii'S, we have followed the French Code in enumerating each matter to which it applies, and not the Genevan Code, which specifies only the cases where the provisional execution is impeiative, and dismisses the facultative remedy with a declarati(>n that the court may grant it in all cases where the effects of the execution are not irreparable. Upon the question of security, the French and Genevan Codes are in conflict; we have followed neither of them in this respect. The French Code allows imperative execution without security, and facultative execution with or without security. Tnc Genevan Code allows imperative execution with or without security, and facultative exectition with sectirity. The proposed Articles permit provisional execution 'vith or without security, as the Court deems advisable. CHAPTER XXIX EXEMPTIONS FKOM SEIZURE The various provisions contained in different paru ot the- Code, referring to exemptions rrom seizure, are here brought together, and treated independently of the writs to which ihey apply. By thus grouping these Articles, apart from Comjtulsory Execution of Judgments, their general applicability to all cases whore the law allows seizure before or after judgment is accentuated in such a way as to settle, in accordance with the decisions, certr.in doubts which have arisen. We have preserved the distinction drawn by the Code between things unseizable by their nature (Article Gf»t», and things Avhich the debtor has a right to choose and retain notwithstand- ing seizure (Article 598). (1) C. C. 280 ; C. C. P. 885. (2) C. P. C. F. 1.35; C. P. (). .115, 316: MoiniLO, Wp'tifiona.- Ecr'tiss 8ur la Procedure Civile, p. 435. Comjmlfiory Execution oj Judr/meiiis. XXV • I'he principal rhangea in Article 598 are two in nuaiber ; Paragrajdi 9 ex»>napl3 books relating to the debtor's profession, art or tr ':, to the value of two hundred dollars. They fremiently constitute his principal means of livelihood. Paragraph 10 raises the value to which tools, etc., are exempt, from thirty to two h«indred dollars. ■ Article 599 contains one change of considerable importance. Paragraph 11, proceeding upon the principle formerly recog- nized by Article 028 C C P., in the case of o/>6'r^/rit, establishes ••ertain proportions in which all wages and salaries are soizable. These proportions are practically the same as those in the case of public offic»Ms of the Province (§ 9>. This amendment neces- sitates the repeal of Article 558, § 5, C. C. P. CHAPTKR XXX or COMPULSORY EXECUTION OF JUDCiMK.N'TS • Article 603, statinf,' that a writ of execution remains in forct- while unsatisfied, introduces an important change. This pro- vision, taken from the Englisli and the Ontario rules, simplifies proceedings by doing away with the multiplicity of writs now required whenever obstructions to the sale are only removed after the return-day or after the day fixed for the sale. The proposed change abolishes the present requirement of the Code that a return-day be fixed in the writ of execution (C. C P. 545 ; Cf. C. P. 602). The most important effects of this airendraent relate to the subsequent writs necessary to effect the sale. Under the Code, these writs p- re(tuired in two cases : 1. If the writ of execution is unsatisfied on the return-day, i^ writ cf Venditioni Kxponas^, or a mw writ of execution, accord- ing to circumstances, is required in order to proceed; 2. If an opposition or other obstacle is not disposed of until after the day fixed for the sale, a writ of Venditioni Exponna must issue. By the proposed system, the original writ of execution suffices ft)r all sul)jequeiit proceedings, fveu such a-? occur after the day first fixed for the sale- The anomaly of having two writs in forco at the same time is thus avoided. Accordingly, the Vmliiioni Kxi>(inT, 1 '-t. ion that the provisions contained in these Article?!, and others of like kind, should be incorpoiated in statutes, which would be capable of convenient amendment. Tin.— Vacating Sheritt"'8 Sales The amendment in Article 786 is intended to settle a doubtful point. It is made incumbent upon all creditors and interested parties, except the piirchaser, to make this petition within the same delay (1) as is allowed the debtor for that purpose. IX.— Oppositions for Payment Article 789 specifies, in a more precise manner, the contents of the prothonotary's register. X.— Payment of the Moneys without Collocation Articles 723 and 752 C. C. P., which each contain the same provision, have been revised and united (Article 793). XI.— Collocation and Distribution of Moneys The new provision appearing in the third paragraph of Article 798 is in conformity with Article 777. The eighth (1) Birard vs. Barrette, 5 R. L. 703. Compulsory Ejfcntion of .hiihjtn^tti". xx.wii rnrnpfrnph contHins a moditicatinn in accordance with tlii* holding in Tanxey va. tiefhune. (I) Under the concluding ;»aragrfti)li of Article HOO, the judpo will aj)|H)int the sequestrator or depositary only when the parties cannot agree upon the choice. Article 802 repairs an oversight in Article 732 C. C. P., by conferring upon the debtor, in default of subsequent creditors, the right to receive interest up to the expiry of the term. Tlus conclusion is sanctioned by judicial authority under the existing Article. (2) The terms of Article 738 C. C P. are enlarged so as to allow service of the contestation of the ceriificate of hypothecs to be made in any manner recognized ia the case of ordinary summons (Article 808). Under Article 740 C. C. P., it was decided that the registrar inust, in oil cases, have his costs taxed by the prothonotary. (3) Article 810 requires him to do so only in case of contestation. Article 811 widens the terms of Article 741 C. C. P., so as to allow the investigation of facta relating to chirographic claims. It also incorporates, by reference, the ordinary rules as to the service and examination of witnesses. Article 814, besides containing a slight modification as to the manner of service, requires the contestation of the report, of the rank, or of any claim, to be accompanied with a notice ot the delay within which it must be answered. Article 816, by the final provision of its first paragraph, enacts that the costs of contestations which are not opposec* and enure to the benefit of some creditors only be deducted from the moneys coming lo the persons benefited. Article 819 states that conte-Jtations upon the merits of oppositions or claims are governed by the rules ia summary matters. Article 821 allows the homologation of the uncontested part of a claim. XII.— Sub-collocation Article 827 defines, in a more precise mnnner, what creditors may intervene in the distribution, in order to exercise their debtor's rights. (1) M. L. R.,3Q. B. 333. - 4.2) Barrette vs. Lallier, 5 C. S. Q. 66, per Pagnuelo, J. (3) Catudal vs. Lessard, S.C., St. John, June 27th, 1887 (unreported). m T" !([?■ 1 ^i 1 h :' 1;: ,, . ii ■ :' ■ !:' I Ml xxxviii r^e Code of Civil Procedure. xrir.— Payment of Moneys levied Only changes of detail appear in the Articles under tliia heading. SECTION IV ARHKST IN CIVIL MATTERS AND COERCIVE IMPIUSON'MBNT This Chapter consDlidites the provisioa-? of the Civil Code as to the cases in which coercive iraprisonraeut lies, and those of ihe Code of Civil Procedure a^ t-j the proceedings by which it may be obtained. In this way, rules which in their entirf^iy simply constitute a means of execution are presented so as so emphasise their fundamental relationship. The chaniGfe is not contemplated now for the first time. The CodiHers of the Civil Code had already expressed doubts as to the proper place of the rules which they inserted in tiie Civil Code. (I) The authority of the Privy Couticd also supports- the clianga. (2) Ot the Articles at present found in the Civil Code in regard to this matter, one (2277) has been repealed as useless; another (2275), becau3e it has been placed, in a modified form, amouar the rules relating to abandonment of property (Articl'^ 889 C. P.); and a third (2274), for the reason^ given in our remarks upon the repeal of Article 766, § 2, C C. P. Article 833 reproduces and amends Article 2272 C. C. The first change appears in the fourth paragraph. It fixes fifty dollars as the minimum amount for which coercive impri- sonment can be allowed in cases of personal wrongs ; and thus dispenses with the words : " for which imprisonment may by law be awarded," at present contained in the Article or'ihe Civil Code. Tlie present wording of this paragraph is incom- l)lete, and necessitates a reference to the Ordonnance of li3tJ7 (Title 34, Arti i ■ 2), the amendments made thereto at the time of its registration at Quebec, and the Statute 12 Vic, c. 42. It is only fro'ii these enactments that we ascertain that the minimum amount for which this imprisonment can be decreed is 100 livres ($16. G6 2-3), and that a delay of four months must intervene be- tween the service of the judgment awarding damages and the order of imprisonment. The indefiiiiteness of the present text has provoked discussion and ltd to decisions which reveal tiie grave inconvenience inseparable from it. (3) The amendment (1) Sixth Report, i».7h \2) Cartel- vs. Afolson, 8 A pp. Cas. at p. 539. (3) Nysted vs. Darbynon, 9 Q. L. K. 322 ; Goyette vs. Berthelot, 13 R. L. 147. Compulsory Execution of Judgments. xxxix* •now under discussion fixes the requisite amount, and Article awy') treats of the interval which must elapse betM'et^n the service of Uie principal judf?ment and the order for imprisonment. In placing the minimum amount at fifty dollars, our object has been to equalize the conditions of persons inflicting personal wrongs and of fraudulent debtors. This paragraph covers the case provided for by Article 2938 of the Revised Statutes, the repeal of which is recommended. Throe changes will be found in the fifth psiragraph: The first consists in the omission of the words : "and Article .son of the Code of Civil Procedure," and is due to the abolition of capias in cases of deterioration of hypotliecated immoveables, wtiioli will be explained in its proper place. The second fix^s the nvMimura amount at fifty dollars, as in the case of damages for personal wrongs- The third is a consequence of Article 836, which, as now dratU'd, requires an interval of three months to be lett between the service of judgment and the order of imprisonment. It has, therefore, been found necessary to strike out of the paragraph the words : " with condemnation to imprisonment," which allowed the judge to order the imprisonment concurrently with thp principal judgment. The alteration of wording which appears in the sixth para- grapii is intended to ensure, by the generality of its terms, its application to all the persons enumerated. Article H3t combines Articles 227:! C. C. and 782 C. C. P., and introduces no change beyond the limitation of the term of iminisonment to one vear. Modifications of importance will be found in Article S3G. In (inly twoof the cases mentioned in Article 2272 C. 0. need a ilelay be given between the service ofjudgment and the order of iin[)risonuient. Til., foiirtli paragraph of that Article allows it in cases of damages for |)ersotial wrongs, by tiie reference to the Ordon- iiiince of 1G67 (1) contained in the words " for which im[)ri- suiinieut m;iy by law bo awarded." A delay of four months must in such cases elat»-!e between the service of the judgment gtuu'ing damages and the application for imprisonment. Arti'le 733 C. C P., by a provision ajiplicable to tutors and curators, requires a delav of four months to be allowed between tho judgment settling the baUiuce due and the order for im- prisonment. Tr.e new Article unites the above rule of Article 2272 C. C, with that of Arlic'r' 783 C. C. P., and extends it to two other Ciises, by mf'ans of tlie reference to paragraphs 1, 4, 5 and li of Article 833. In conse(pience of the amen'ltiicnt, a delay of three months miist be allowed whenever the imprisonment is simply a means of execution, but not whenever an element of ■i'onierapt of judicial authority is involved. (1) Tit. M.Art. 2. zl The Code of Civil Procedure. I Article 837 contains two amendments : The first allows the judge, as in the case of ordinary summons (Article 146 ('. P.), to prescribe the morie of service of the rule for imprisonment, whenever tl'e defendant evades service. The second allows the judge in vacation to pronounce tiie condemnation to coercive imprisonment in all cases in which it lies. By the repeal of Article 788 C. C P., we do away with an exceptional provision, lacking reasonable wnrrant, a)iplicable to the writ of imprisonment in case the defendant is domiciled outside the district in which the writ issues. The execution of all wriis of imprisonment is thus left to the operation of the general rules contained in Article 838. Article 841 forbids the arrest of the debtor in a case not cov- ered by the present law, viz., when Le is in attendance at the sittings of a judge. Articles 845 and 846 settle controversies in regard to the in- terpretation of Articles 79?, 793 and 794 C. C P. Does Article 792 C. C. P. refer to the same cases as Article 793? If so, does it also apply to the inobservation of formalities prescribed by law? Or is it, on the contrfuy, iipcessnry to pro- ceed by habeas corpus^ in such cases? Ditl'erent results have been reached by the decisions and by authors vvlio have studied the subject, (i) The solution contained in ihe draft consists in clearly defining the cases referred to by Articles 845 and 846 ; while Arliclo 847 states that the procedure is by petition in any such case. Three other changes will be noticed in Article 816 : In the fifth paragraph, the case of Article H34is excluded from those in which the debtor may obtain iiis liberation by making an abiindonnient. because the cause of imprisonment mentioneil by that Article partakes of the nature of a contempt. Again, the provision now appearing as the fifth paragraph ot Article 793 C C. P., as to discharge under an insolvency law, is omitted, as no insolvency law now exists, and it is tiierefore unnecessary to deal wi'h tlie subject at present. Finally, the sixtli paragraj)h no longer recoernizes tlie com- pletion of seventy years of age as a cause of liberation in the cases stated in Articles 833 and 834. Articles 849, 850, 851 and 852 are new, and are inteiided to replace and amend the provision omitted from paragraplt 4 of Article 793 U. C. P., by paragraph 5 of Article 84G of the draft. (1) See DoHtrc, vol. 2, no. 1105, IKIT. ; ex parte McCaffmi, 3 L. N. lOi) ; ex parte Ward, M. L. 11., 2 Q. B. 405 i:886). Abandonment of J'roperfy. x\i Article 849 does not of ilselfmake any clianpe in the law. Article 850 introduces into tlie law as to coercive imprison- ment the rnle as to capias contained in tlie last paraprapli of Article 764 C. C. P. (now Article 928 of the drafi). This is a change in the existing law as to coercive imprisonment, because, under Article 7(34 C. C. P., the abandonment is made at the place where the debtor has his principal place of business, or, in the absence of such jdace, of that where he is domiciled. Another new rule will be found in Article 851, which intro- duces, with amendment, into coercive imprisonment tie rule as to the transmission of the record in cases of capias, contained in Article 768 C. C. P. (Article 929 C. P.). Article 852 reproduces, in so far as coercive imprisonment is concerned, the rule contained in Article ll'.i, §2, C. C. P., com- mon to all cases wherein abandonment consequent upon a suit is contested on the ground of secretion. A similar provision covering the case of abandonments consequent upon capia:5^ Avill be found in Article 930 of the draft. CHAPTER XXX [ AB.ANDOSMENT OV I'HOl'EHTV The present importance of this Chapter is due in a l.irge measure to the series of amendments commencing with the Ac''. 48 Victoria, Chapter 22, which included insolvent tradcis among the persons who may be held to make a judicial aban- donment (cession de hiens'i. These amendments, while presenting nn effective system, d*-.?- troyed the orderly sequence of the original Code. As tlie Chapter now stands, some of its provisions aie peruliar to aban- donment consequent upon cajjias or upon coercive imprisonna nt (tf. ^., Articles 76t, last parngraiih ; '•;»>, §1; 767; T6R, last paragraph; 77.S. ^ 2; 776, § :^. C (L P.), while othfrs apply also to the case of traders who have ceased their pajmonts (e. g ,. Ar.icles 765, 7G8, 769 C. C. P.). ^ rearrangement (if these diverse rules is clearly necessory. '•at end we have renio'ed the dispositions peculiar to capias to coercive iniprisoimient, from tliis Chapter, and reserved them for treatment under the head of capias. Another simplification results from stril^ing out one of the cases where an abandonment may now be made. The second paragraph of Article 766 ('. C. P. relates to the- abandonment whicdi may be required from a person condemnerl to pay a sum of eighty dollars or upwards, exclusive of intercat; Tc 01 mm xlii The Code of Civil Procedure. «nd costs, for a debt of a commercial nature, after such moveable or immoveable property as he appears possessed of has been dis- cussed. As a means of compelling disclosure of the debtor's property, this enactment is not without utility, although it is rarely used. Uut inasmuch as more comprehensive and efficacious rules, de- sisrned for the same purpose, have been embodied in Chapter XX VH of the present dratt, relating to the examination of debtors after judgment, we recommend the repeal of the paragraph above-mentioned. As a corollary to this change, we propose that Articles 2274 and 2275 of the Civil Code be repealed. In this manner, a perplexing contradiction between the Codes disappears- Article 2277 of the Civil Code should also be repealed. Article 853 enumerates the persons who may make a judicial abandonment. The case now mentioned in the second paragraph of Article 7(56 C. C. 1*. is omitted for the reasons already given. Article 854 contains new rules intended to meet the require- ments of commerce, by allowing the demand to be made by certain persons vested with representative authority. Article 855 ])rovides for service of the demand upon persons present in the Province. Proceedings against absentees are detlt with in a subsequent Article. Article 856 requires the power of attorney to be tiled with the demand and vouchers. Rules as to contesting the demand are supplied by Article 857. The Code is silent at pr.^sent as to such contestations. Although the decisions recognize the right to contest, serious doubts hav? arisen as to whether the alleged debtor could obtain securitv for costs from a demanding party who does not reside in the Province. The Article settles the question in the affirm- ative, and states the delay within which the security must be moved tor. Article 853 defines what constitutes the abandonment. Article 859 preserves the separation between the declaration . P., as ti> fraudulent deterioration of hypothecated immoveables, is struck, out for two reasons, viz-, because coercive imprisonment lies to enforce a condemnation to damages in such cases, and because an injunction may be used, under the draft now submitted, to^ prevent sxi'-h acts. In Article 897, the words " for a fixed day " are omitted. In view of the rule that the defendant is to appear within a statejl number of days after service. The forms of affidavit for capias, referred to by Article 898, have been prepared anew, and cover the serious omission in Form 42, in the Appendix to the existing Code, of all mention of intent to defraud. . (1) See Ahmth vs. N'otdi Eaatirn liy. (p., t. R., 11. App. Caa. Capias ad Respondemhnn x\ VII The provision contained in Article 807 C. C. P., as to the power of a judge, the prothonotiiry or a commissioner, to re- ceive the oath, has been struck out of Article 000 of the draft as surplusage in view of the general rule stated by Article 2H U.P. Article 901 contains a new provision, intended to compel the deponent in all cases to state precisely the grounds of any iuform- ation or belief relied upon. It is conceived that so severe a process as capias should not iesue without some obligation ot precaution heing imposed on ihe issuing officer. For this purpose, Article 003 rejiroduces the provision of the Consolidated Statutes of Lower Canada, (1) that before issuing the writ be should first be satisfied of the sufficiency of the allegations of the affidavit. The indorsement on the writ is subjected by Article 004 to only one modification. In the case of unliquidated damages, the amount of hail fixed by the judge, and not \h(\ sum ."j/ti/ for, must be stated, because the principal ohjcct of the indorsement is to enable the defendant to learn what bail is required. The repeal of Ariices 812 to 815 of the present Code, relating fo warrants issued by Commissioners of the Superior Court, is recommended. Whiitever utility these warrants may have pos- sessed when means of communication were ditiicuU now no longer exists. Moreover, commissioners are sometimes jiersons of no legal training, unfit to decide upon tlie sufficiency of the affidavit. SECTION II EXECUTION OF WRITS OF CAPIAS. A new disposition will be found in Article OOa, leqiiiring a copy of the affidavit to be furnished to the defendant. TlMfc change facilitates the contestation. SECTION III BKLEASE UPON BAIL The present Code recognizes three kinds of bail, viz. : (1) Provisional Bail, given bef( re the return-day of the writ, jconditioned upon the defendant giving security pursuant to Article 824 or to Article 825 (Article 828 C. C. P.) ; (2) Special Bail, given within eight uays from the return of the capias, coDditioned upon the defendant nut leaving the Province of Canada (Article 824 C. C. P.) ; (1) C. 87, 8. 1. Alvlii The Code of Civil Procedure. (3) Ordtnnrif Bail, given at any time before judgment, con- oij the (lefendrtnt making an abandonment within thirty days after judgment rendered maintaining the capias, and surrendering himself into the custody of the sheriff writhia thirty days after service of an order requiring him to do so (Article 913). It will thus be seen that the system presented in the draft in- volves the abolition of that species of bail which is intended to prevent the debtor from leaving the Province (Article 824 C. C. P.). Again, the new provision as to Ordinary Bail states the obliga- tion of the sureties to pay whenever the abandonment is not made within thirty days from the judgment, and thus covers a point upon which the Code was silent up to the passing of the Act 48 Victoria, chapter 22, section 9 (Article 776, §3, C. U. P.). Even since that amendment, the question has given rise to deci- sions founded upon diverging interpretations. By comparing these changes with Section V of this Chapter, it will be seen that a capias maintained will in the future lead to an abandonment or to payment of the debt. The amend- ments made to the different Articles of this fcJection have been framed with this twofold object in view. Article 910 requires the renewal of the security within ten days after taat upon which the defendant must appear. It also states that the sureties must justify whenever theplaintiff or the ■sheriff so requires. Article 913 completes the provision ot Article 825 C. 0. P., as to Ordinary Bail, by explicitly staling the obligation of the defendant to make an abandonment within thirty days after judgment maintaining the capias. The complement of this umendmeut will be found in Articles 925 and 926. Article 915 requires a description of the sureties to be inserted in the notice. W M The sureties are enabled, by Article 917, to procure an order for the debtor's arrest, so as to surrender him, but are not deprived of the right which belongs to them under the present <^ode, of making the arrest themselves in a summary manner. Capias ad Respondendum. SECTION IV xlix con- CONTKSTATION OP THK ("APIA3 Article 9U> preserves the rule imposing upon the defendant the burden of establishing the insiitticiency of the affidavit or ihe existence of any cause of exfmntion from arrest, but throws upon the plaintiff'the onus of provinc: the truth of the allegations of the affidavit. The amendment avoiiJs the interpretation now ulaced on Article 819 0. C- i'., by the decisions. The delays for pleading are made to run, by Article 920, from the day when the writ is returnab'. jy its terma, and not when it is actually returned, whenever an order for immediate return has been made. Three important modifications appear in Article 922: In the first place, the contestatiim as to the falsity of the allegations of the athdavit, or the exeujplion of the defendant from arrest, will, in the future, be governed by the same rules and delays as summary matters. This amendment has been suggested by several judges and prartiiioners, nnd will avoid the puzaling anomalies hitherto met with in this matter, which have proved so troublesome in practice. Next, care is taken to cover a casus omissus under Article 821 <€. C. P., vi?.., when the contestation relates to the exemption of the defendant from arrest. Issue will be joined on the petition, independently of the principal demand. Finally, the distinction made by the last paragraph of Article 821 0. 0- P. is abolished. Under the French version of that Article, if the contestation was based upon the falsity of the allegations of the affidavit, issue was joined upon the merits of the suit whenever the exigibility of the debt depended upon the truth of such allegations, while in other cases issue was joined • independently of the principal demand. The effect of such a ride was that, whenever the exigibility of the debt was in issue, the defendant was liable to remain for a prolonged period under arrest by capias, instead of being able to secure his discharge in a few days, as he could have done had he been allowed to pro- ceed to proof on bis petition to quash, before the trial of the principal suit. We have considered it more just to include th:^ <5ase within the ordinary rule, and therefore leave out of the 'draft the concluding provision of Article 821. 8B0TI0N V EFFECT OF CAPIAS This section is not found in the existing Code. Its insertion here is due mainly to the desire to attach such an ■eflfect to capias as will make it a really efiFectual remedy, and D in i 1 The Code of Civil Procedure. incidentnlly to the wish to put in their proper | lace, and HmentI, in so far hs necessary, the provisions now fonnd in Articles 764 (last paragraph) ; 7b6, § 1 ; 7G7 ; T6S (last parairraj)h) ; 77n, § 2 ; and 770, § 3, C. C. P., under the head of Abandonment of Property. Under the existhig Code, crtpias is very often iihjsory. Such is usually the case whenever a debtor, accused of secretion, gives bail at the time of his apprehension. Shouhl tlie judgment e adverse to him, he hastens to make an abandonment; and, although he omits from his statement the things secreted, he is, in no case other that» that mentioned in I lie second paragraph of Article 773 C. C. P., amenable to justice. Such a result will be impossible under the provisions of Articles 925 and 930. Tho creditor in whose favour a capias is maintained is invested in all cases with the power to obtain an order of imprisonment against his debtor. The latter can obtain his release only by satisfying the judgment or making an abandonment of his pro|K'rty ; and if, in the latter case, he oralis from his statement anyof hiB present property, or any jjroperty tiie secretion of which caused the capias to be maintained, he will become subject to the penalties pronounced against fraudulent debtors. Tlie right confierred upon the plaintiff, i>f obtaining a sentence of imprisonment, without prejudice to the liability of the sureties, has necessitated the repeal of the provision now con- tained in the third paragraph of Article 776 C. C. P., as to the obligation of the defendant released upon bail to make an abandonment within thirty days after the judgment. The defendant will henceforth be interested in every way in making bis abandonment of the earliest possible moment should the plaintiff, in exercising the right given him by Article 9J5, cause the defendant to be arrested. The system hereinabove outlined is substituted for that now contained in Articles 766, § 1, and 776. § 3, C. C. P., but preserves the rule of Article 767 U. C. P.> which is made to apply alike to debtors in gaol or released upon bail. It is hardly necessary to add that the rules as to Abandon- ' ment of Property will continue to govern abandonments con- sequent upon capias, except only as to matters concerning which- the present iSection contains special provisions (Article 927). CHAPTER XXXIV ATTACHMBNT BEFORB JUDGUBN'T. SECTION I SIMPLE ATTACHMBNT Most of the efaang'ss in this Chapter relate to the arrangettient tnd drafting of tbe Articles, and bare been prompted by the trisb to ttdl^tf se for as possible, the same order Mdphvaseologj as in the case of capias. Attachmenl hi'fore Judtjmenf. n •tick's 764 "') ; 77.-5, § . Jnmcnt of ry. Sucli secretion, jiHlgment ^'ni; and, tc'l, he is, iigraph of csult will )30. Tho itedinuU 't against 'iitisfjing tTty ; and ny of his 'i caused ct to tho sentence of the low con- ns to the make an It. The I making lould the !5. cause hat now ^•, hut made to bandon- nts con- g which. 927). BreiheQt by the leolog^ Article 031 contains a re-draft of Article 834 0. C. P., and presents sevi-ral amendments. The first paragraph requires the debt, in the cas« of the ilrr- nier iguipeur, to exceed hve dollars. By the concluding provision of Article 8.'U, it is now neces- sary to allege in the affiduTit that the plainiiflT will lose his debt or sustain damage, whenever the attachment is for secretion, absconding, or refusal to abandon, while in capias this allegatioa is essential in the first two cases only. This difference is not, in our opinion, justifiable. We havr therefore made the rule uniform on this point by adapting ihu* of i.tt[)ia3 to the case of attachment befoie judgment. One distinction between Capias and A itaclmient before Judg- ment has been pres»'rv(Ml. The former remedy does not lie, unless the defendant is about to abscond from the I'rovinces of Quebec and Ontario; the latter covers cases where the abscond- ing is simjjly from the limits of the Province of Quebec, or, iu other words, from the jurisdiction of the court. By substituting a mere reference to Article lOl C P., for the present terms of Article 83(] C. C. P., Arlirle d'.Vl m.akes the rule as to the competency of the seizing officer common to all the courts, and not mereiy to the Superior Court and the Circuit Court. The contents of the affidavit are indicated by a new Article (033). The rules as to the issuing officer, now found in Articles 838 and 839 C. C. P., are brought together by Article 934. Article 935 assimilates this attachment to ordinary execution, in so far as the seizure of moveables and the appointment and powers of guardians are concerned. The generality of its terms explains the omission from the draft of Article 861 C C. P. which ceases to exist as a separate Article, and also of Articles «47 and 848 C. C. P., which have already become Articles «)2ti. and 627. The repeal of Articles 842 to 845 CO. P. inclusive, as t» commissioners' warrants, is recommended for the reasons al- ready stated under the head of capias. The provision at present contained in Article 846 C. C. P. has fallen into desuetude, and is therefore omitted. The particulars as to the return of the attachment, in Article 8-49 C. C. P., ate also omitted. The writ in the present instances is no exception to the general rules as to the return of write. lii The Code of Cicil Procedure. Article 03G contains no mention of the service of the declar- ation, in view of the reference to Article 909 contained in Arti- «'1p 9.'!9. The omission of the rule as to the inventory of seizure is diie 'o th»: provisions contained in the first paragraph of ■Article 935. Three ameli )rations appear in Article 937 ; Its provision as to tiie service of the attachment is extended so as to cover cases in which service of the minutes of seizure cannot be made. Again, the proof of the circumstances justifying the order pre- scribing the method of service may be made by return. Finally, the judge is authorized to prescribe any mode of ser- vice whatever, and not merely to order service to be made in the manner stated in Article 68 C. C. P. (C. P. 13G). In Article 938, the use of the term " seizing officer " is a result of the repeal of Article 846 C. C. P. A reference to case? of unliquidated damages has also been inserted to cover an oversight in the existing Code. The rules common to Capias and Attachment before Judg- ment are indicated by Article 033. SICTION II ATTACHMENT KT GARNISHME.VT Article 940 omits the reference to Articles o.'iS and 6'28 C. 0. P.. now apfiearing in Article 855 C. C. P., because the rules as to Exemptions from Seizure are now placed in a Chapter •(XX IX) common to all kinds of seizure. The reference made by Article 941 to Article 60 1 involves tbi fame consequence as we have already stated in our observation in regard to Article 93-', and renders Article 857 C. C. P. su- perfluous In like manner, Article 859 C. C. P. is not repro- duccil, because of the reference which Article 942 makes to Articles 904 and 934. . As a substitute for the system of contesting garnishees' declar- mionx now stated in Articles 862,863 and 864 C.U.P.,we have adopted that contained in Article C93 C. P., which is ac- cordingly rendered applicable by the reference to that Article ■made by Article 1018. The procedure to contest a garnishee's jiljle!^ is changed from "payable" to " due." The reference to things exempt from seizure is omitted from the same Article, because ot the applicability of the provisions contained in Chapter XXIX to all seizures and attachments. The reference to Article 9r}5 contained in Article 954 replace* Article 875 C. C. P., and thus causes the application to these proceedings of the rules as to the custody of moveable property; seized in the case ot ordinary execution. CHAPTER XXXVII -t Conservatory Atlachnient This subject has received the attention of the Commission. Itt> view, however, of serious doubts which have arisen as to the effect of such provisions upon the civil law, we have abstained . from dealing with the matter. CHAPTER XXXVIII INJUNCTIONS A new system of Injunctions is organized in this Chapter of the draft. In the English law an injunction may be granted whenever it appears "just or convenient " to restrain the commission or tiontinuance of an act. (I) The Ontario Statute is couched in the same terras. (2) In New York, injunctions are allowed against acts which " would produce injury to the plaintiff, or in violation of the (1) Eng. J. A. 1873, sec. 25, sub-soc. 8, A. P. 1894, p. 877. (2) Ont. J. A., sec. 53, sub-8eu. 8, II. and L. p. 52. !! Ill liv The Code of Civil Procedure. " plainliflTs rights," as well as to prevent fraudulent disposal of the defendant's property. (1) The Louisiana Code, in the same way as ours, contains a restrictive enumeration of special cases in which this remedy is allowed. (2) The California Code, avoiding the limitative specification of the Code of Louisiana, as well as the extreme generality of the English Act, states three broad grounds of injimction. (3) The last-mentioned system has been adopted as the basis of that contained in the draft. The principal effect of the change will be to widen the scope of this useful remedy. Injunctions are classified by the draft under three heads, viz., interim, interlocutory and perpetual. The first of these is granted whenever it is neces3ary to give notice of the application for an interlocutory injunction, and remains in force only during a specified time (Article 961). The second may be granted at the time of issuing the writ of summons or afterwards during tiie suit, and remains in force until final judgment, or, if it has been granted without previous notice, until it is dissolved upon motion (Articles 957 and SG6). The third is decreed by the final judgment, which pronounces the injunctions required, either for a limited period or perpetually {Articles 957, § 1, s. a, and 968). Although the proceedings leading up to the issue of these various injunctions are in many respects dissimilar to those pre- scribed by the existing Code, they will he found stated with sufficient detail to render comment unnecessary here. It will be observed that many of the provisions of the present Code, which have proved efficacious in practice, have been pre- served. The assignment to the appropriate fund of fines inflicted for violrtliona of injunctions is out of place in this Code. Article 103o« C. C. P. is therefore omitted; and such fines are, by Article 971 simply declared to be payable to the Crown. (See Jl. S. 739.) ;"'-?? CHAPTER XXXIX JUDICIAL SKQUESTRATIOX In the Articles of the Code retained in the draft we have made few changes; others we have omitted. (1) N. Y C. (503,604. (2) C. P. L. 298 et seq. (3) Cal. 586. - ^^tf VIZ. Judicial Setfuestration . Ir In their Report on the Civil Code, the Coditierg expressed the following opinion as to Judicial Sequestration : (1) " The subject of this section may perhaps be thought to be- ^' Ions properly to tbe Code of Procedure ; a number of articles, '•embodying rules of a general character are, however, submitted *• and reference is made to that Code for the more special rules." An attentive examination of the provisions inserted in the Code of Civil Procedure will show, either that the distinction between substantive and adjective rules of law was not ob- served, or that several of the former description were overlooked ■when the Civil Code was prepared, and afterwards had to be ])laced in the Code of Civil Procedure iu order to supply the omission. Indeed, the latter Code, like the Civil Code, estab- lishes ruh's as to the rights, duties, incapacities and discharge of sequestrators ; soriiG are even mere repetitions of provisions of the Civil Code. (2) And yet neither of these bodies of law is complete; the in- quirer must go back to the Ordonnance of 1667 to ascertain the delay upon the expiry of which the guardian is discharged. (3) With a view to remove grounds of objection, we suggest the transfer of Articles 879,880, 881, 882, 883 and 884 from the Code of Civil Procedure to the Civil Code, and recommend their • revision in such a manner as to avoid useless repetition, and to include the rule of Article 22 of Title i9 of the Ordoanance of 16G7 among the provisions of Article 1823, The amendment based upon the Ordonn.ance of 1667. contained in Article 1047, covers the case where one of the parties makes default upon the day fixed for the api)ointment of the seques- trator, in such cases, the judge of his own accord names tha .5oqiiestrator, contrary to the practice in regard to the nomina. lion of experts. (4) Two questions have arisen in connection with the appointment c>i sequestrators : First •• What notice must be given to the sequestrator of his appointment ? Secondly: fs the person chosen obliged to accept? The former finds solution in Article 075, in conformity with the Ordo?mancc of 1667. (5) The latter can receive treatment in the Civil Code, to which it more properly belongs- (6) (1) Sixth Jleport, p. 24. (2) Cf. C. C. 1825, 1826, 1827, 182S ; C. C. P. 879, 880, 881, 882, 883, -884. (3) Tit. 19, Art. 22 ; Halli vs. HaU('., .5 Q. L. R. 390 ; lieaudry v». Jirown, 3 L. N. 412. (4) ase of curators to^ dissolved corporations (C. C. 371-373a.). The last part of Article 1008 and Articles 1009 to 1015 C. C. P. are in conse-^ quence repealed. U) Ross VB. Fafard, 19 R. L. 662. Proceedings affeciUuj Corporations or PiiWw Offices. Ivii II SKCTION H CSUBPATIOX OF PUBLIC OR COUl'OBATE OFl'lCKS OR FKANCHI3K3 I By means of the referetice to Articles 980, 981 and 983 of the draff, Article 988 HSsimihites in certain respects the procedure in this matter to that in the case of corporations illegally formed. ' The contestation will, in consequence, be subject to the same rules and delays as summary matters. Article 990, which reproduces Article 1019 C. C. P., merely declares that .ne fine which may he inHicted upon a defendant ousted from office devolves totlie Crown, without spec'fying the officer to whom it is payable. Certain provisions of the Revised Statutes are sufficiently explicit on this point. The repeal of Article 1020 C. C. P. is intended to cause ihe- adjudication of costs to fall under the ordinary rule (Article 549). SECTION III UANDAUDS Article 992 modifies the existing law in several respects. The words inserted at the beginning of the Article are designed to ciieck an extreme tendency of the decisions of (ur courts, to refuse mandamus whenever there is another legal remedy, although such remedy is not so advantageous or effectual. The rule now propounded is 3ui){,orted by several Ilnglish casesv The first paragraph contains a principle acknowledged alike, by text-writers and by adjudged cases, viz., that the mandamus may be addressed to a corporation as rtell as to its officers. ('2> A new paragraph, the fifth, is substituted for that which is now the fourth. It is founded on '' The Common Latv Procedure Act, 1854" (3) and the English Rules of Practice. (4) It covers all cases embraced by the provision it displaces, and luiiji the advantage of being complete in itself. Lastly, the final provision of Article 1022 (.\ C. P., stating that the writ commands the defendant to i)erform the act re- quired or show cause to the contrary, is omitted. Its suppres- sion is due to the decision in Broun vs. Jj'(k'ur,i; et La Fnhriqne jSolre'Dami de Montreal, (5) the holding on an analogous (Ij n. vs. narlo>r,ML. J.,Q. B., 271 ; /?. v.s. Ilxjlstrar of Joint Stock Companies, 21 Q. 15. 1>. 131 ; Itush vs. lienvan, 32 L. J., Kx. .)4, (2) Cunningham vs. Beaudet, 11 Q. L. li. 1U8. (3) S. 68. (4) Eng. R. 719. (5) L. R., 6 P. C. 157 ; 20 L. C. J., at 236. Sp Wiii The Code of Civil Procedure. point in the more recent case of Pre/ontaine vs. The City ofSte. Cunegonde^ (I) and the desire to remove the contradiction be- tween the para(;raph struck out and the eoncludin^i; paragraph of Article 998 C. C. P., contained in tiie new Article 994. (2) Hereafter — the point will not admit of controversy — the writ by which the proce^^dings are commenced will be an ordinary writ of .summons. Article 993 omits the las^. paragraph of Article 1023 C. C. P. as surplusage. The initial writ being, as already remarked, a simple writ of summons, ir is subject, in so far as regards service and return, to the ordinary rules, without any statement to that etfect being required. A new Article (995) declares the proceedings to!be subject to the same rules and delays as summary matters. Our observa- tions upon Article 98:i are applicable* here. Arti".le 996 contains a new provision as to the method of giving public notice in case an election is to be held. The complement of this chnnge is to be found in the amendment in Article 998, which requires that the peremptory writ shall state the mode of notice. Article 1028 C. C. P. is in consequence repealed. Under the terms of Article 997, which is substituted for Article 1030 C. C. P., the service of the peremptory writ is made in the same manner as writs of summons, with one re- striction. If the defendnnt has no domicile in the Province, and it is impossible to find him therein, the judge is empowered to prescribe the mode in which service of the writ will be made iipon him. The application to the peremptory writ of the rules of service of summons renders useless the disposition as to the return of service, now found in ihe concluding paragraph of Article 1030 C. C. P. Article 1001 amends Article 1025 C C. P., by vesting the Crown with the right to fines inHicted upon a contumacious corporation. Moreover, the new provision contained in the last paragraph allows the repealed infliction of the fine in case it persists in its refusal to obey the peremptory writ. SECTION IV PROHIBITION The brevity of tbli Section of the Code, which contains only tone Article, has given occasion for some criticism. New previ- sions have been mtroduced so as to make it complete. (1) 3 B. R. Q. 429. (2) Cf. alao U. C. p. 1023. Petition of Right, Vim The words added to tbe second paragraph of Article 1031 C'C. P., by Article 1003 of the draft, require the party pro- ceeding in tbe court below to be impleaded. This ameudment is borrowed from tbe English practice. (1) SECTION V QRNKRAL PROVISION The wording of Article 1033 C. C. P. has been the subject of considerable aiscussion. The question arose whether its object was to refuse appeal from or review of interlocutory judgments, inasmuch as it mentions final judgments only, or merely to restrict the delay for filing ihe inscription in appeal from a final judgment. The latter alternative was the more generally accepted. The new terms in wnich Article 1006 is couched embody this opinion. The iule of the Article, as regards judgments in first instance, is extended so as to cover judgments in review. CHAPTER XLI AXNDLMKNT OF LETTERS PATENT The question whether any person other than an officer of the Crown may, under Article 1035 C. C. P., take proceedings for the annulment of letters patent, has given rise to much contro- versy, which our courts, relying upon the Consolidated Statutes of Lower Canada, have invariably decided in the negative. The Codifiers, in their Eighth and Tenth Reports, stated that no change was made in the statutes on this point. It is inter- esting to note that the wording of the Article contained in the Reports just mentioned is different from that of the present Article; the words " by suits in the ordinary form " do not appear. The new draft presented by Article 1008 is in conformity with the decisions. It expressly statos that the action belongs only to certain officers of the Crown, while Article 1009 declares that its exercise is subject to all the rules and delays applying to ordinary suits. Tbe remark already made in regard to appeals, in connection with Article 1006, applies also to Article 10 lO. CHAPTER XLII PETITION OF RIGHT Many of the provisions under this head, in the existing Code, Are in reality foreign to a code of procedure. Thus, on tbe one (1) Shortt on Informations, 486. 11 I ■\ i ]x The Code of Civil Procedure. hand, Article 886a is unmistakably a Bubstantive law governinpr,- not the formalities to be followed to enforce claims against the' Crown, but the conditions which must concur before its re-' sponsibility can even exist ; while on the other, Articles 886/>^ 886c, 88G(f and 886o, tnjine, are in the nature of administrative rules referring to the proceedings by which the action of the executive may be procured. Originally, the law as to Petitions of Right was not contained in the Code ; it was inserted only at the time of the revision of the Statutes in 1888. This is doubtless the explanation of the Articles above-mentioned being placed under this heading. Nevertheless, as their presence here is of some practical advan- tage, we have hesitated before omitting them from this Chap- ter. ' The suppliant not infrequently embodies iu the petition which, he transmits to the Provincial Secretary, particulars of the- evidence upon which he relies, together with matters of argu. meat calculated to lead to a decision in bis favour. As this.- petition is the same as that which is afterwards lodged in court, it follows that the judge must, in order to ascertain the Doints at issue, grope around for them among a mass of probative and argumentative matter. The amendment introduced by Article 1012, which requires the petition to be in conformity with the ordinary rules as to pleading, is intended to remove, this inconvenience. The suppliant will not, on the other hand, be deprived of the righl to submit the matters of evidence and argument upon which he relies ; an amendment to the next Article allows him to send a factum to the Provincial.' Secretary along with his petition. The change made by Article 1019 of the draft, in regard to' the time at which private parties summoned in conjunction with the Crown must appear, is a consequence of the mode of summons inaugurated by Article 149. The observation as to appeals, already made in connection with Article 1006, applies also to Article 1020. CHAPTER XLIIE HYPOTHECARY nECOURSE AGAINST IMMOVEABLES, OP WHICH THE PROPHIETORS ARE DNK.NOWN OU UNCERTAIN No change of importance calls for notice in this Chapter. We have assimilated the description of the immoveable con- tained in Schedule W. to that required to be iaserted in the minutes of seizure (Article 706). The words added to Article 1029 dispense with the formality' of publication of the notice at the door of the parish church; Actions of Boundary. }xi rwlienevpf the hypothecated immoveables are situated in the XJities of Quebec, Montreal, Three Rivers, Sherbrooke', Si. ilyacinihe ani Sorel, and in the town of St. Johns. Article 1033 declares in express terms that the petitioner must file tiis demand in declaration of hypothec within two months, to be computed from the expiry of the delay mentioned an Article 1030. Observations as to Artivles 9lla to 918 the Draft. C. C.P., omitted Jrom The draft does not reproduce! Articles 9lIato9I8 C. C. P. as to Re-entry upon Abandoned Lands and Partition of Town- ship Lands held in Common. In the opinion of judges and practitioners most familiar with the working of these excep tional provisions, the Articles in question no longer serve any useful purno?e, and have fallen into desuetude. Articles 15G1(/ and 15616 of the Civil Code should, in consequence, also be repealed. CHAPTER XLIV COMPULSORY PARTITION AND LICITATION la this matter the draft contains only changes of form. The delays of Articles 929, 932, 933 and 935 C. C. P., which jHay lend to uselessly protract the proceedings, have been cut down (Articles 1047, 1050, 1051 and 1053). . Articles 10 "7 and 1048 present a revised draft intended to assimilate the advertisements of the notice of licitation to those of sherilfs sales. In conclusion. Article 1055 fixes a delay within which the adjudication price must be paid. f ■ CHAPTER XLV ACTIONS QV BOUNDARY The question whether a judicial determination of boundaries may be claimed as an absolute right, and whether the costs ot suit must, therefore, be divided in all cases, or, on the con- trary, the intervention of the court is necessary only in case an amicable settlement of boundaries is impossible, and the adjudi- cation of costs should, in consequence, be left to the discretion of the court as in ordinary cases, gave rise to great difference 'Of opinion before the Code. By means of the concluding words added to the text of i I Izii The Code of Civil Procedure. Article 646 C. N., of which Article 504 of our Civil Code is the reproduction, the Codilieii intended to settle the controversj in the sense of the most accredited opinion before the Code, by leaving the costs of suit in t lie discretion of the court. That this was their wish results clearly from their remarks. (1) Differences of opinion nevertheleass continued to exist after the Code, and the two systems of the old law found and still find advocates wlio interpret Article 504 in diftereiit ^'avs, a3 exemplified, on the one hand, by the elaborate study of Mr. Justice Casault, in the case of Belanger vs. Oironx, (2) and on the other, by the judgments in Lohelle vs. Paradis, (3) and Laframboise vs. TaiUefer^ (4) both of which were decided by the Court of Appeals, the former before, and the latter after, the judgment in Belawjcr vs. Giroux, To settle the controversy, wo recommend that the words: " those of the suit, in case of contestation, are in the discretion of the court," be struck out of Article 504 0. C.,and that a new Article bo inserted in the Civil Code, in the following terms : '' 504a. Boundaries may be determined, either by mutual assent between neighbours and by their mere act, or with the intervention of judicial authority." "If suit is taken, the costs are in the diseniion of the court." (5) Such a provision would put an end to unproti table discus- sions, and decide them in accordance with the old common law of France and with Article 941 of the Code of Piocedure, and would obviate the injustice of charging a neighbour with half the costs of an action, notwithstanding his willingness to have the boundaries established, and the justice of his contentions. A slight amendment has been made by Article 1063 to the reference contained in Article 945 C. C. P. CHAPTER XLVI POSSESSORY ACTIONS. The opening words of Article 948 C. C. P. are omitted from- Article 1066, because of the repeal of the provisions as to suits in cases of Illegal Detention of Lands held in Free and Com- mon Soccage (Articles 1007 to I0I3 C. C. P.). (1) Third Beport, p. 387. (2) 9 Q. L. B. 249. (8) 1 Q. B. R. 264. (4) M. L. R., 6Q. B. 477. <6) Foutmel, Volsinage, 237. ' Sepamtion between Consorts. CHAPTKR XLVII Ixiii DISCIIAIIGE FIIOM HYPOTHECa AND CONFItlM ATION OP TITLK Changes only of detail and expression have been made this Chapter. m Article 10G9, as (o the publication of the notice of the peti- tion for confirmation, reduces the number of ndvertisementa in the OJJioal Gazette, shortens tlio time during which they run. and adapts tlie rule of Article 717 to the other publications required. A corresponding change is made in Article 1076. Owing to the reference made by Article 1072 to Article 709, the three last parajzraphs of Article U'>'> C. C. P., which con- tain provisions in all respects similar to Article 771, are struck out. Under the terms of Article 1074, the creditors will in the future have, until the sixth day o/tcr that fixed for the present- ation of the petition, to file their oppositions. This new pro vision will remove the anomaly now resulting from the terms of Articles 954 and 957 C. C. P. A corresponding change has been made in Article 1068. CHAPTER XLIX SEPARATION BETWEEN CONSORTS This Chapter contains new provisions intended to complete the rules relating to the procedure in cases of separation of property and of separation from bed and board. Several of them, such as Articles 1097, 1098, 1099 and 1100, have been taken from the Civil Code. We recommend that the changes necessitated by the transtier of these provisions from the Civil Code to the Code of Civil Procedure be made in the former Code. On the other hand, Articles 979, 980, 982, 983 and 984 of the present Code are not reproduced by the draft, because their proper place is in the Civil Code. SSCTION I SEl'ARATION OF PROPERTY The place where actions for separation of property, and for separation from bed and board must be taken, is aeterrained by Article 96 C P. The jurisdiction in this matter is also treated by Article 1311 C. C. Owing to the amendment contained in Arttcte 96 C. P., the two latter Articles are now in conflict, to remove which we suggest the omission from Article 1311 of Ixiv ,^/te Code of Civil Procedure. \ llie words " boToro tlie court of th" domicilo." The changes to those Articles explain ihe amendments lo Article 1091. The new provision of Article 109.1 does not make any change .in tin; existing law. The right of the wifie to take a conserv- atory attachment, in matters of separation as to property, ia admitted. (1) In embodying the principle in an express text, "we have been careful to preserve the limitations which existed in the old law. The last paragraph of the same Article alio embodies anile which prevailed in the old law. Article 978 C. C. P. is struck out of the draft .as surplusage, in view of Articles 1097 and 1098, which reproduce, in part, Articles 1312 and 1313 (J. C. Article 1008 unites, without alteration, the first paragraph of Article 981 U. C. P. with part of Article 1312 C. C. The three last paragraphs of Article 981 C. C. P. are struck out. They apply not only to married women judicially, but also to those contractually separated. Their proper place is in the Revised Statutes, after Article 5502. SECTION II SKPAKATION FROM BED AND BOAKD Article 985 C. C. P. is omitted. The observation already made as to the last paragraph of Article 1093 applies to the concluding paragraph of Article 1102. CHAPTEPv L OPPOSITIONS TO UARRIAGE Articles 1105 and 1113, and the last paragraph of Article 1111, reproduce, with changes of wording only. Articles 145, 147 and 138 (last part) of the Civil Code, which are in thei' proper place in this Code. In conformity with Article 149 C. P., Article 1107 shortens the delay between the service and the presentation of the oppo- sition. Bv the generality of its terms, Article 1112 allows an appeal to the Court of Queen's Bench or to the Court of Review. 4 r(l) See 2 Dmtre, n. 152J ; 2 Plgeau, p. vo. " Separation de Biens," n. 10(5 ss. 184 ; Hoxisseau & Laisney, Procedure in the Circuit Court. 1 XV 'Again, it brinj^s into tho Co !" of Civil Procedure the rule now contained in Article 146 U. C, by virtue of which the proceedinsis on such appeals aro summary. We, therefore, recommend thnt Article 14»3 be struck out of the Civil Code. CIIAITIOR LI HAnKAS COIIl'OS AD Scn UCIK.SDL'M IN ClVII- MATTKKS. Tho only change in this mutter is found in Article 1 1 14, which \iiiitfs the provisions of Articles 1040 and 1(»52 C. C. I'., with araon cation of moveable property leased is allowed to De made con- currently with any lessor's action. Article 889 C. C. P. is struck out as surplusage. Delays upon summons are treated in Article 1153. In cases oetweeu lessors and lessees, the rule as to increasing Remedies against Judgments' Ixvi the deliiy, wben the service requires to be made at a distance, is borrowed from Article 149. The same Article is made to apply, in its entirety, to all oilier summary matters. Articles 1154 and 1155, in regard to Preliminary Exceptions and Defences, are framed in view of Articles 164 and 197, res- pectively. Rules as to inscriptions in law are found in Article 1157. The first paragraph is merely an adaptation to summary mat- ters of the rule of Article 194. Then, in the second paragraph, by way of exception, the present rule as to cases in the ('ircuit Court, not susceptible of review or of appeal, is preserved, in conformity with Article 1144. Articles 1158 and 1159 state when the case may be inscribed and what notice of inscription for proof and hearing must be given. Article 890 C. C. P. is not reproduced, because its substance is covered by Article 10 and paragraphs 1, 2 and 3 oi Article 15 C. P. The amendment introduced by the Statute 53 V., c. 61, s. 3, is reproduced in Article 1162, with only one modification, which restricts the requirement of the superscription " summary pro- cedure " to the case of writs of summons. i EIGHTH PART CHAPTER LVl I KEMEDIES AGAINST JUDGMENTS All the remedies against judgments which arc jursued in the Superior Court are treated in this Chapter. OPPOSITIONS TO JUDOMBNT After first separating the provisions relating to oppositions to judgment (Articles 483a and 484 C. C.P.),from those referr- ing to Petitions in.Revision (Article 483 C. (3. P.), we have con- fined ourselves to recasting, rearranging and slightly modifying the provisions of the present Code. It will be sufficient to briefly comment upon some of the changes. The new rule introduced by Article 1166 allows the plaintiff, by serving the judgment, to reduce the delays within which oppositions can be mado. Ixviii TJie Code of Civil Procedure. li t Article 1167 contains a new provision, intended to mitigate tlie rigour of the preceding Article, by allowing iiie judge to receive the opposition, even alter the expiry of the delay, in <-eitain cases where no fault is attributable to the judgment debtor. Article 1169 requires the deposit made by the defendant to be reserved until the final judgment, instead of allowing it, as at present (Ariiclu 486 C. C P.)) to be withdrawiMU the mean time by the plaintiff. In consequence of this change, the repeal of the concluding provisions of Article 492 (J. C. P- is rendered necessary. Under Article 1170. the defendant must hereafter, in all cases, serve the opposition upon the other parties. The service is allowed to be made upon the attorneys of such ]iarties if the opposition is made within a year and a day after the judgment attacked. Article 1722 corrects an inaccuracy in Article 488 C. C. P., by declaring that the service, and not ihe filing, of the opposition and certificate stays the proceedings on the execution. By Article 1173, the opposition is subject to the same rules ■Hhd delays as the original action ; and the delays for contesting the opposition are computed from its service. Article 1174 states the only restriction upon the judge's dis- cretion in regard to costs. The provisions of Articles 491 and 492 C. C. P. are struck out. CHAPTER LVII PETITIONS IN RKVISION Article 1175 modifies Article 483 C. C. P., by refusing the Petition to pe.soas served with the action at their ordinary and actual place of business. CHAPTER LVIir '4, PETITIONS IN IlEVOCATION OF JUDGMENT P' Under Article 505 of the existing Code, only judgments which are not susceptible of being appealed from or opposed can be attacked by means of this Petition. Article 1177 of the present •draft extends the scope of the rule by declaring that this remedy is likewise open to the parties whenever adequate relief cannot i)e obtained by means of appeal or opposition. JReoiew before three Jwhjes. ] xx The advantages of such a provision are plain. Thus, in many cases, where a party wishes to attack a juJ^- Tnent upon grounds which require the taking of new evidence? he will be enabled to urge his pretensions by re-opening ih© case in the court which has rendered the judgment of which ho complains. Article 1177 states nine cases in which this Petition lies Only three of these are at present mentioned in Article 505 C. C. P., but the decisions make it clear that, even at present, this restricted enumeration is far from being limitative. (1) The cases now added to the Article are taken from the old law and from the present French Code. The eighth paragrapl> forms the only exception in that respect, and is of different origin. Articles 1178, 1179 and 1180 determine, in a more precise manner, the time from which the delay for presenting the Peti- tion begins to run. Article 1181 requires the petition to be accompanied with an affidavit in all cases. Article 1184 subjects this Petition to the same rules and delays as govern the original action. CHAPTER LIX OPPOSITIONS BY THIRD PARTIES Article 1187 makes a judge's order necessary before execu- tion can be suspended upon any opposition of this kind. CHAPTER LX REVIEW BKFORE TBREE JJDGB3 The principal change in thi;^ Section consists in the adaptation to review of certain rules now stated by the Code only in the case of appeal {e.g., Articles 1193, 1194, 1195, 1200, 1207 and 1208 of the draft). Article 1189 allows the judge a quo to sit in review in thre'5 unimportant cases. Article 1191 allows the court to fix the time of itsownsitting-i. Under the existing Code, this is the case in the District ot Montreal only (Article 500 C. C. P.). (1) Neil vs. Champoux, 7 Q. L. K. 210. I !l Ixx The Code of Civil Procedure. In Article 1194— one of the Articles adapted from the pro- visions as to appeals— an addition is made to cover the case of the demise or removal of a testamentary executor. Article 1197 contains rules in accord with tlie decisions as to deposits in cases where several issues are in review. Article 1199 contains an amendment of expression only, intended to show that the review merely suspends proceedings upon the appeal. The concluding disposition of Article 1202 makes an order of the court necessary to continue the precedence of cases once called and not proceeded with. Article 1203 limits the operation of the rule as to sending back the record, to cases wherein no appeal is taken to the Privy Council, and thus puts an end to the present conflict between Articles 502 and 1178a C. C. P., in regard to the return of the record to the court of first instance. CHAPTER LXI PROCEDURE IN APPEAL Error, as a remedy against judgments in civil matters, lias been struck out ; and, under Uie general terms of Articles 42 and following of the draft, an appeal will in the future be granted in the case for which error is now prescribed (Article 1114 C. C. P.) The last three paragraphs of Article 1213 inaugurate a new system for obtaining the dismissal of appeals for which security is not duly given. Under Article 1121 of the present Code, the inscription is filed in the office of the court which rendered the judgment appealed from ; while, by Article 1124, the prothonotary makes up the record only after security has been given. Tlie question there- fore arises ; what court is seized of the matter between the filing of the inscription and the giving of security? The proposed amendments, in effect, make the court of first instance seized of the appeal until security is given. If security is not given with- in the p.-e'^cribed delay, the opposite party may obtain a certifi- cate to Uiat effect from the prothonotary, and the appeal is held to be abandoned (Article 1213). If security is given, the pro- thonotary immediately transmits copies of the inscription and bond to the Court of Appeals, which may thenceforth decide any contestation relating to them (Article 1216; and see Article 1220). The prothonotary thereupon makes up and trans- mits the record (Article 919). ■m Appeals to Her Majesty. Ixxi 111 Article 1214 allov^" a party, against whom provisional execu- •lion Las been ordered, lO go to appeal upon giving security for the costs of appeal only. If the appellate court should after- wards recall the provisional execution, under Article 597, it would of course inapose the condition that the appellant give the usual security. Article 1218 allows the parties to appear after the copies of the inscription and security-bond have been received by the clerk of appeals, and thus carries out the system introduced by Articles 1213 and 1210. Article 122 1 allows the court to order new security to be given ... place ot any which has become insufficient; and confers l)ower on a judge, out of term, to order such new security or the reduction of excessive security. Article 1224 consolidates and amends Articles 1132 and 1109 of the present Code It avoids a possible anomaly under the oxistipg law, viz., obliging a party to be present tor the hearing Jjefore hi.s delay for tiling factums has expired. Under the |)re. sent draft, the party is required to be so {)resent only after the delay for tiling factums, and not appearances, has expired. The rules as to the appointment of a judge ad hoc, now con- tained in Article llGl C, C. P., and in Articles 2302 and 2303 of the Revised Statutes, have been brought together and amended by Article 1231. The repeal of Articles 2302 and 2303 of the Revised Statutes is therefore recommended. Article 1233 adds illness to the present causes of replacement of t lie judge ad hue Article 1238 classes disavowal with discontinuance, as being suV)ject to the forniilities prescribed for like proceedings in the Snrerlor Court. Article 1248 omits the former reference to Rules of Practice, which is covered by Articles 73, 74 and 75 of the present draft. It also strikes out the power to make tariffs for advocates, which now belongs to the Genenil Council of the liar, under Article 3599 of the Revised Statutes. CHAPTER LXII APPEALS TO HER MAJESTY The draft does not reproduce as a separate provision that part of Article 1178rt C. C P. which has already been omitted (1 ) Tint see •'>8 V., c. 47, as. 2, 3, passed after the publication of this ^art of the draft. i ! ! ! 1 ]xxii The Code of Civil Procedure. from Article 69. This change is explaii.^d by the fact that the omitted part is incorporated with Articles ^249, 1251 and 1252,. wliich are amended so as to apply to appeals from the Court of Review as well us from the Court of Queen's Bench. NIxNTH PART INFERIOR JURISDICTIONS This Part of the before the Coram I Code contains only the rules as to procedure v„w ^w issioners' Court, District Magistrate's Court, and the r-^vocation, by way of certiorari, of the judgments of courts of inferior jurisdiction. The provisions of the existing Code as to Justices of the Peace, Recorder's Court and other Inferior Jurisdictions, will not be found in the accompauyino: draft. The reason of the change is that the provisions of Articles 1216 to 1219 C. C. P., as to the other courts and inferior jurisdictions, Lave already been reproduced by Articles 63 to 66 of the dratt CHAPTER LXIII P^OCfiDURIS BKFORB THE COMMISSIONERS* COURT FOR THE SUMMARY TRIAL OF SMALL CAUSES By Article 1258 interventions are allowed in matters before this Court. The exceptional provision now contained in Article 1194 C. 0. P., as to the delay upon summons in the case of writs accom- panied with attachment, is struck out, and such writs are thus brought within the purview of the first paragraph of the Article (Article 1264 of the draft). The change made by Article 1278, as OTHER DlriQUALI- FIEO PERSONS SECTION I OF PROPF.RTY EXCEEDING FOUR HUNDRED DOLLARS IN VALUE The amendment contained in Article 1342 provides for the appointment of experts in the case of the sale of property belong- ing to interdicted persons. It is based upon ^Section 1 of Chapter 48 of the Consolidated Statt tes of Lower Canada, a portion of which was omitted by the Codifiers. Article 1344 does away with the unnecessary requirement that tlie report of the experts be contained in an act en brevet. A new Article (1348) introduces no change in the present law It reproduces a part of Article 298 of the Civil Code. The words added in Article 1349 are rendered necessary by the power conferred by Article 1356 to have the sale of certaia securities made at the current rate upon the stock exchange w Ixxvi TJie Code of Civil Procedure. Article 1351, which reproduces part of Ar'icle 299 of the Civi Code, is here inserted so as to bring together uiideronc heading the rules relating to this matter. We add ilie requirement thiit the sale of the property of interdicted persons be made in the presence of their curator. The rules contained in Article 13r)2, as to the public notices of the sale of immoveables, are in conformity with those already l»rescribed by Ariicle 717. Article 1353, relating to public notice of tlie sale of certain securities, is taken from Article 290 of the Civil Code, and covers a case as to which the Code of Civil Procedure is now silent. SECTION II OF PROPERTY NOT EXOBBDING FOUR HUNDBfiD DOLLARS IN VALUE Under Article 1359 the notices of sale in matters falling withia this Section are given in the manner prescribed by Articles 1352 and 1353. CHAPTER LXXri PROCEEDINGS RELATING TO SUCCESSIONS SECTION I SEALS No change has been made by the draft in this matter. SECTION II INVENTORIES By the re-draft of the opening part of Article 1395, questions of law as to the right to be present at the inventory may bfr referred to the judge whenever difficulties arise upon the sub- ject. Article 1324 of the Civil Code requires the inventory with which it deals to be judicially closed. Neither the Civil Code nor the Code of Civil Procedure states how such closing is aflFected. The old law authorized the judge to close it, upoit the inventory being presented, with a declaration that it was faithful and correct. (I) The Consolidated Statutes of Lower Canada (2) vested the prothonotary as well as the judge witb (1) 2 Pigeau 3«, 343. (2) C. 78, B. 23. ! Froccecini/s relaling io Successions. Ixxvii such power* The latter provision has been repealed by the Revised Statutes of Quebec, (1) and the conijietency of the pro- tlionotarv w as extremely doubtful until the passing of the statute C9 v., c.*4G, The new provision of Article 1398 determines, in accordance wiih the practice, the method to be followed in all cases in which the inventory must be judicially closed. It is completed, in 30 far as concerns the jurisdiction of the prothonotary and tl.e clerk, by Article 1310. SECTION III BENEFIT OF INVENTOIIV. The modification to be found in Article 1 100 consists in the incorporation in the text of part of Article 1010 CO. P., to which Article 1322 C. C. P. now merely refiers. A form of the notice to be given by the beneficiary heir is also placed in the Appendix. SECTION IV LETTERS OP VEUIKICATION The only change, beyond the numerous ameliorations of phraseology, which calls for note in thisJlection, is thatappcar- ing in Article 1414, in which the method of computing the delays for presenting the petition is made the same as for ordin- ary summons. SECTION V PROVISIONAL POSSESSION Article 1422 removes an anomaly by conferring on the judge a power which can at present be exercised only by the court (Article 1327 C. C. P.), or by the prothonotary (Article 1339 (j. C. P.). We recommend that corresponding amendments be made to Articles 93, 94, 95 and 97 of the Civil Code. SECTION VI VACANT SUCCESSIONS Articles 1331 and 1332 of the existing Code are struck out, because they are merely repetitions of Articles 684 and 685 of the Civil Code. The manner in which the curator gives notice of his appoint- ment is expressly stated in Paragrapli I of Article 1406. (1) Appendix A. i^ Ixxviii The Code of Civil Procedure, -^ •t^ry ELEVENTH PART ARBITRATIONS Only one change is made in this matter by the draft. Under Article 1436 mediators will be obliged in all cases lo give notice to the parties, and to hear them and their evidence^ if they appear, but will not be required to decide according to the rules of law. This amendment merely expresses the effect of the decisions. Observation9 as to Articles 1355 to 1358 C. C. /*., omitted Jrom the DraJ't. These Articles, relating to the division of the Province into judicial districts, are omitted by the draft, because they are cov- ered by the Revised Statutes. Quebec, November 7th, 1896. TH. CHASE-CASGRAIX, JIILKS E, LARUE, C. l\ DAVIDSON, Commissioners. CHARLES LANCTOT, PERCY C. RYAN, Skcretahies. ^BtKS/mm^fffm TABIvB OF CONXKNTS. FIRST PART OEN»:UAri I'KOVISIONS Chapter. Article. I. Declaratory and Interpretative Provisions I II. 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 of Review. 48 IV. Circuit Court i>4 V. Commissioner's Court .Ot) "VI. District Magistrate's Court Gl VII. Justices of the Peace, Recorder's Court and other Inferior Jurisdic- tions 63 VIII. Supreme Court of Canada, and iiixchequer Court of Canada 07 IX. Her Majesty in Her Privy Council... fi8 II (I It II 11 (I HI. Jurisdiction of Judges in Chambers. IV. Rules of Practice. 70 73 SECOND PART RULES APPLICABLE TO ALL ACTI0.N3 V. Actions and Parties to Actions 7& VI. Mode of Appearance of the Parties, and Election of Domicile .' 83 VII. Joinder of Causes of Action 87 VIII. Actions against Public Officers 88 IX. Proceedings informa pmiperis 89 X. Place of instituting Actions 94 XI. General Rules of Pleading 105 THIRD PART PHOCEDURB IN THE SUPERIOR COURT XII. Summons 117 XIII. Return of Actions 151 XIV. Flliug of Exhibits 155 XV. Appearance and Default to Appear 161 Ix.xx Chapte XVI. TJie Code of Civil Procedure. r. Contestation of tlip Action : Section I. Preliminary Exceptions : — Article. 1. Rules common to all Prelimi- xvir. i XVI II. XIX. nary Exception? 1G4 S 2, Dcclinatorv Excpntioiis 170 § 3. Exceptions ot ///« /'t'/f/c/?* 173 S 4, Excent'ons to the Form. 174 ^ 5 Dihitorv Exretition^ 177 (( 11. Cont(^stalion on the Merits ; — ^ 1. InscriiJtion in Law 191 $ 2. Defence u><; §3. Answer and Reply 108 § 4. Filing of Exhibits 201 § 5. Rule3 applicable to Defences, Answers and Replies 202 (( TIT. .Tfiindpr nf Tsaiio ?14 Incidental Proceedings : Section I. Incidental and Cross Demands 21,5 (1 11. Interventions 220 II IK. Improbation 225 II IV. (Contestation of Returns ?']*\ II V. Recusation , 237 M VI. Disavowal 251 II VII. Change of Attorneys 259 l< VIII. Continuance of Suits ?M « IX. Discontinuance , 275 (.' X. Peremntion of Suits 279 II XI. Dii-covcry and Inspection of Docu- ments 28G II XII. Joinder of Actions 291 Trial : — Section I. Inscription 293 (( IT. Summoning Witnesses 297 It III. Order of Trial and Adjournment.. 304 (t IV. Examiiiation of Witnesses. 312 « V. Taking down Evidence 345 Incidents of Trial and of Evidence : Section I. Examination of Witnesses by Con- sent 355 n 11. Examination of vVitnesse.- who are ill, or about to leave the Province 356 III. Examination of Wi^^nesses else- where than where tne Case is pending 357 n- IV. Interrogatories upon Articulated -- - Facts 359 *«:. V, Oaths put by the Court , 371 II • VI. Proofs before Examiners. 373 Tabic oj Contents. Ixxxi Chapter. Article Section VII. Comini^sKms for the Examination of Witnesses 380 " VIII. Experts, Viewers, References in Matters of Account and Arbi- trators § 1. Viewers and Experts § 2. References in Matter? of Account to Accountants and Practitioners § 3. Arbitrators § 4. GvMioral I'ro visions applic- able to the throe preceding Paragrajdis XX. Proof and Hearing, and Proof, in ca-es by Default ^ and h'x iKi lie XXI. Trial by Jury : 3fil 302 •110 111 Section (I u u M (C it-' M it XXII, Decision of admitted.. XXIII. Amendments XXIV. Judgment Section I " II I. Preliminary Provisions 11. The Jury..: III. Formation of the Special List and Striking the Panel Summoning' of Jurors Formation of the Jury and (Chal- lenges VI. Proceedings before the Jury VII. Provinces of Judge and Jurv VIll. Verdict '. Judgment after Verdict Remedies against Judgments, and Proceedings in Reserved Cases : § 1. General Provisions § 2. New Trials § 3. Different Judgment Questions of Law >i]( -, Fads IV. V. IX. X. XXV. II Costs. III. Confession of Judgment Judgment in cases by Default and //Z parte General Rules as to Judgment XXVI. Voluntary Execution of Judgments : Section I. Putting in Security " II, Accounting '' III. Surrender " IV. Tender and Pnyment into Court. XXVII. ExBmination of Debtors after .Judgment .XXVIII. Provisional Execution. XXIX. Exemptiona from Seizure 414 418 421 130 133 443 A AC, Ai',2, 474 47(> '191 A'.y2 4St8 .">08 r>oo 513 532 :<•](> 56(> 570 583 5'JO 'o'M 598 Ixxxii The Code of Civil Procedure. Chap»er. XXX. Compulsory Executioa of Ju'igmeuts : kSectioa f. General Provisions .... *• II. Execution in Real Actions ** III. Execution in Personal Aclijns § I. (Jeneral Provisions § 2 ArlicJe. ... GOO ,. . 610 4. I. 71. III. IV. Arrest Execution upon Moveable Property : 1. Seizure of Moveable Pro- perty 2. Op[)Osltions to the Sei/.. ure of Moveable Pro- perty 3. Sale ot Moveable Pro- perty 4. Return of the Writ, I'ay- nient and Distribution of the .Moneys levied.... Seizure by Gtirnislimeut Execution upon Immove- ables : — Seizure of Immoveables... Advertisements and Pub- lications Su3[)en3ion of the Sale and Oppositions Oppositions to annul... Oppositions to with- draw... Oi)|i03itions lo secure Charges Oppositions to Charges upon Immoveables under Seizure 5. General Provisions..., Bidding and Sale Resale for False Bidding... Return of Executions Etfects of Sheriff's Sales.. Vacating Sheriffs' Sales... Oppositions for Pay- ment Payment of the Moneys without Collocation.... Collocation and Distri- bution of Moneys x[i. Sub-collocation XIII. Payment of Moneys levied in Civil Matters and 1. 2. 3. 4. IV. V. VI. Vll. vm. IX. X. xr. Coercive I jipriaoQtaeut. G12 617 644 6.'')5 G70 t;T7 699 716 721 722 723 724 72 5 727 73,-) 761 768 778 784 78» 79;t 794 824 828 8S2 Table r,j Contents. XXXlll Chapter. XXXI. Abandonment of Property. Article, .... 855 FOURTH PART rROVISIONAL HKMEDIE8 XXXII. XXXIII. xxxrv. XXXV. XXXVI. XXXVII. XXXVIII. XXXIX. General Provision 8P3 Capias ad Respondendum : Section I. Issue of the Capias 801 '" If. Execnlion of tlie Capias rtO(; " J 1 1. Release upon Bail IHO " IV. Contestation of the Capias ()li» " V. Kffect of the Capias 9:5 Attachment before Judgment : Section I. Simple Attachment '.'"( " II. Attachment by Garnishment '.MO Attachment in Revendication 94G Attachment for Rent Oo'J Conservatory Attachment,.., Itr)5 Injunctions f»57 Judicial Sequestration 973 FIFTH PART SPECIAL PROCEEDINGS XL. Proceedings affecting Corporations or Public Offices : Section I. Corporations illegally formed, or violating or exceeding thtir Powers 978 ** II. Usuri)Mtion of Public or Cor- porate Offices or Franchises... 987 * III. Mandamus 992 ^ IV. Prohibition 100:5 •• V. General Provisions lOO'J XLI. Annulment of Letters Patent lOuY XLIL Petition of Right , 1011 1 XX XIV The Code, of Civil Procedure. I I \> Chapter, Article Xlilll. Hypothecary Recourse against Immoveables, of which the Owners are unUnown or un- certain 1025 X1-.IV. Compulsory Partition and Licitation 1037 XIjV. Actions of Boundary lO'yj Xl.VI, Possessory Actions lOG-l XLV^II. Discharge from Plypothecs or Confirmatioa. of Title 1067 XLVIII. Certain Proceedings between Lessors and Lessees 1089 XLIX. Separation between Consorts: Section L Separation of Property 101)0 " IL Separation from Bed "and Board... 1099 L. Oppositions to Marriage 1105 Lf. Habeas Corpus ad Suhjiciendum in Civil Matters : 1114 SIXTH PART PROCEDURE IN THE CIRCUIT COURT Lir. General Provisions 1126 LUl. Procedure in Cases Susceptible of Review ol= of Appeal 1135 LIV. Procedure in Cases not Susceptible of Review or of Appeal „ 1136 SEVENTH PART SUMMARY MATTERS LV. Procedure in Summary Matters. 1150 TuhJe of Contents. Ixxxv EIGiJTH I'AIIT HEMEDIES AiiAIN'ST JIDGMENTS Chajuer. Aiticle. LVf. Oppositions to Judgment Il0:i LVII. Petitions in Revision U75 LVIII. Petitions in Revocation of Judginent 1177 LfX. Oppositions by Tbini Parties 1195 liX. Ileview before Tbreo JiKJj^es 1189 LXl. Appeals to the Court of Queen's Bench 1201) LXII. Appeals to Her Majesty 1249 NINTH PART INFKRIOR JUKISDICTIONS LXIII. Procedure before the Commissioners' Court 1253 LXI\^ Procedure befoie the District Magistrate's Court 1284 LXV. Remedies agoinst the Proceedings and Judg- ments of Courts of Inferior Jurisdiction 1202 TENTH PART NON-CONTENTIODS PROCEEIUXGS LXVI. General Provisions 1308 LXV^U. Registers and their Authentication: Section I. Registers of Civil Status 1311 " II. Piegisters of Registry Otlices 1317 « III. RegistersofSheriffs and Coroners. 1318 LXVIII. Inspection of Notarial Documents 1320 LXIX. Family Councils 1331 JiXX. Tutors, Ciuators and Judicial Advisers , 1337 IjXXI. Sale of Property belonging to Minors and other Disqualitied Persons ; Section I. Of Property exceeding Four Hundred Dollars in Value 13U " n. Of Property not exceeding Four Hundred'Dollars in Value 1357 " III. General Provision... 13GI r Ixxxvi The Code of Civil Procedure, ^'hapten. Article. LXXII. Proccedingg relating to Successions: Section 1. Seals :— § 1. Affixing Seals 1363 § 2. Removal of Seals 1375 " II. Inventories: — § 1. Making of the Inventory 1387 § 2. Sale 1399 " III. Benefit of Inventory 1405 " TV, Letters of Verilication 1411 " V. Putting into Possession 1422 " VI. Vacant Successions 142f> " VII. Probate of Wills 14;;0 ELEVENTH PART ARBITRATIONS LXXIII. Arbitrations 143L ABBKEVIATIONS JVrt Article. A. II. U General Rnle3 and Orders regulating the Practice and Procedure in Admirally cases in the Exchequer Court of Canada Ottawa, 1893. Bellot Procedure Civile de Geneve, par P. F Bellot. B. R. Q •■• Rapports Judiciaires Officiels de Quebec Oour du Banc de la Reine. (J, C Civil Code of Lower Canada. G. C. P Code of Civil Procedure of Lower Canada G. L C. F Code d'ln^truction Crirainelle Frangais. G. F Code of Civil Procedure (the present Code). C. P. C. F Code de Procedure Civile Fran(;ais. C. P. G •• Loi sur la Procedure Civile de Geneve. G. P. L Code of Practice of Louisiana. G. S. N. B Consolidated Statutes of New Brunswick. <;. S. Q Rapports Judiciaires Officiels de Queuec, Gour Sujxrieure et Cour de Revision. Gal Code of Civil Procedure of California. Kng. J. A., 1873 English Jr^dicature Act, 1873, or as the case may he, j<:ng. R English "Rules of the Supreme Court, 1883," as consolidated in the Annual Practice, 1894, pp. 213, ss. H. A, L Holmested & Langton, Ontario Judicature Act and Rules ot Practice. 11. L. G House of Lords Cases. J. A Bill relating to Judicial Re-organization, l?iy3. Loranger Loranger (Mr. Justice T. J. J.), Cora- mentaires sur le Code Civil. i # Ixxxviii The Code of Civil Procedure, N. S. R. U Nova Scotiii Rules of Supreme Court, Order. N. Y. C Code of Civil Procedure of New York. Ont. J. A Ontario Judicature Act (R. S. 0., c. 44) > Procl., 22 June, 1867,. Proclamation of that date, bringing the Code of (;ivil Procedure of Lower Canada into force. R Rule. R. C. C. S Report of the Commission for the Codih- cation of the Statutes of Quehoc, 18s2. R. P. Consolidated Rules of Practice of the Supreme Court of Judicature for Ontario R. P. S. C Rules of Practice of the Superior Court for Lower Canada. R. 8 Revised Statutes of Quebec. U. S. C Revised Statutes of Canada. R. S. N. S Revised Statutes of Nova Scotia. v., c, s Statutes of Quebec,— Victoria, cliapter — , section — V. (C.) Statutes of Canada, — Victoria. «s And following (articles, sections or pageS;. as the case may be). k1 I THE CODE OF CIVIL PEOOEDURE OF THE PROVINCE OF OUEBEC t! «s^ FIRST PART li GENERAL PROVISIONS CHAPTER I DtCLARATORY AND INTERPRETATIVE PROVISIONS 1. The laws con(erning procedure and the rules of practice in force at the time of the coming into force of this Code are abrogated ; 1. In all cases in which this Code contains any provision having expressly or impliedly that effect ; 2. la all cases in which such laws or rules are contrary to or inconsistent with any provision of this Code, or in which express provision is made by this Code upon the particular matter to which such laws or rules relate. Nevertheless as regards proceedings, matters and things pending at the coming into force of this Code, or rights of appeal and limitations as to substantive rights existing ante- rior to such coming into force, and to which its provisions could not apply without having a retroactive effect, the provi- sions of law which, without this Code, would apply to such proceedings, mutters, things, rights and limitations, remain in force and ap()Iy to them ; and this Code applies to them only in so far as it coincides with such provisions. The rules as to evidence contained in this Code apply to causes, matters and things done or pending at the time of its coming inio force. — New, in port. C. C. P. 13G0 ; Loranger, C. C, p. 152 ss ; AtturneyGeneral vs. Sillem, 10 H. L. C. 704, 2. If in any article of this Code, founded on the laws existing ai the time of its promulgation there be a difference betweeu I, i! rl ♦ \ I i ; 2 The Code of Civil Procedure. ll«e KriRlisli nnd llio Froiicli text, that version sliall prevait which is must coiiriistcnt with the provisions (jf the existiriff hiwB on wliicli tiie article is t'oiintled. If there be any such (lifli t'lice in an article changing,' the oxistin{^ laws, that version shall prevail which is most loiisistenl with the intention of the article; and the ordinary rules of legal interpretation shall ajiply in determining such intention. — C. C. 1*. l.'^Bl. 3. Whenever this Code does not contflin any provision for enforcing or maintaining any right or claim, any proceeding adopted which is not inconsistent with law or tlie provisions of this Code is received and held to be valid. — C.C.P. 21, in jxirt, aiiiendcil. 4. All rules and provisions concerning procedure are inter- preted wilh reference to each other, and in such a manner as to give Ihem all the effect intended. — C. C P. 21, in part, amendecL 5. The words, terms, ex]iressions and enactments enumer- ated in the declaratory and interpretative provisions of Article 17 of the Civil Code and of Articles 12 to .'!(j, inclusive, of the Revised Statutes, wherever u8ed in this Code, are interpreted in the manner therein specified. Whenever the following words, terms and expressions are used in this Code, or in .my amendments thereto, they are construed in the manner hereinafter mentioned, unless the con- text otherwise requires: 1. The words: " Code of Civil Procedure," mean the present Code; 2. The words: " Revised Statutes," mean the Revised Sta- tutes of the Province of Quebec; 3. The words : "other Provinces of Canada," mean the Pro- vinces of Canada other than the Province of Quebec, and in- clude the Territories ; 4. The words : '• Court of Review," mean the Superior Court sitting in review ; 5. The word: "judge," means the chief justice, judge or assistant-judge of the same Court; G. T; e word : '• prothonotary,"' means the prothonotary of the Sujierior Court, or the clerk of any other court to which the provision is applicable ; 7. The words : '• office of the Court," mean the office of the prothonotary, or of the clerk of an}' court to which the provision 13 applicable. — A'etr, in part. C. C. P. 26, in party 5, in pnrt. 6. The forms contained in the appendix to this Code, or others to the same effect, are valid and sufficient, when used in the cases to which they are intended to apply. — C. C. P- 1359, amended. \ Drrhnatn)'!/ and Intrrpntdtirr Provisions. 7. Tlic follcjwing days ftre non-juiidicul : 1. Sundays ; 2. New Year's Day ; .'J. 'I'lic I'iitipluiiiy, Asli Wednesday, (lood Friday, Kastcr Monday, the Ascension, All Saint.-.' l-)ay, the (Jonceiilion, and Christmas Day ; 4. Tlie anniversary of the F^irthday of tin.' Sovoreifjn, or the day tixed hy proeliimalion lor its et lel)rHti()n ; 5. The first day of July, or the second day of the month if the first in a Sunday ; i;. Any (lay appointed by royal proclamation or hy proclam- ation ol the (lOVcrnor-Cieneral or of tla; Lieutenant-trovcrnor as a day of K*-'"*''''' fast or thankstriv iiifj, or as liaboi- I)ay — U. C- P- 2, umondcd: R. S. 5854; 50 Vic, c.4U; U.S. C . c. 1, S. 2, S3, 7; 5G Vic. lU.), c. 30. 8. H the day on which anythin^^ ought to ho done is or becomes a non-juridical day, sucli thinj; may be done with like efl'cct on the next following juridical day. This rule applies als«j to the leturn of writs and to sales iiy authority of justice.— U- U. P. 2, 3, amended : \{. S. 20- 9. Whenever a person is summoned to appear on a day fixed, neither tl e day of service nor the terminal day is counted in computing delays for summoninf.'. Delays continue to run upon Sundays and holidays ; hut if a delay expires on a Sunday or a holiday, it is of right extended to the next following juridical day. The same rules apply to all other delays in procedure.— C. C. P. 24, amended. 10. In reckoning delays for pleading or trial, the first day ot September is deemed to be the next day after the thirtieth liay of June, and no J arty can be obliged to proceed between those two days, witbout a special order of the court or h judge, except in the 'matters enumerated in Article 15. Any days between the thirtieth day of June and the first of September are, however, reckoned in the delay of eight days fixed by Articles 1 l'J(J and 1202 — U- C. P. 4G;;, amended; 1, 's^" C. " 317 , ^ U.S. 5898. I, bS 11. The place, time and duration of the sittings of the diffi r- ent c( urts are re,Q;ulated by particular statutes.— C. C P. ], in part : R. S. 58;"'3. 12. The court may, according to circumstances, shorten the terms thus fixed, or it may prolong them by adjournmenr. 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 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^n I.I 1.25 28 m 2.2 " m m IIIII2.0 U i 1.6 Photographic Sciences Corporation iV %^ % v 4^ ^*' "9." 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ?\y r o ^ ^ :\ \ ^^\ The Code of Civil Proirdurc. adjournment the court may hearnnd determine all causes, mat- ters or things brought beft.rcit, whether such causes wen- begun before or since suth artjournmcnt.— C C P. l,in pa]f, avKmud; II. S. 5853. 13- In the absence of the judge who should preside ever the court, the prolhonotary may adjourn the court tt» a substqueut day during the ti rm, or, upon tlie order uf the judge, to any day or days out of terra. — U. C. P. 1, in part, amende /, R, S. 5853. 14. The courts cannot sit on non-juridical days. — C. 0. P. 1, ill part f amended ; H. 55.5853. 15. The courts cannot sit between the thirtietli day of June and the first day 'f S«ptemb«'r, and in addition they are not obliged to sit be -tj:! the thirty-first day of August and the tenth day of September, or between the twentieth day of December and the ler '' day of January, except, in either case, as regards ; 1. Action,") arisin .oj.i the relation of lessor and lessee; 2. Trial and judgu^enl by default to appear in ordinary and in summary matters ; 3. Trial and judgment by default to plead in summary mat ter.a, unl< ss the appearance is accompanied with an affidavit that it is filed in good faith, and without intent to unjustly delay the procicdings ; 4. Judgments upon confession of judgment ; 5. Proceedings concerning corporations and public offices ; G. Oppositions to marriages ; 7. Applications tor writs of //a6^^/s Corpus in civil matters 8. The proceeoings governed by Articles 713,733,749, 750, 782, 792, 800, 849 '.o 977, inclusively ; 0. 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 Gaspc, of Sagi:enay, and of Chicoutimi. The prothouotaries iiavo, 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. — C- C. P. 1, in part, 311, in part, amended; R. S. 5853 ; Nolait, vs. IJastoug, 4 Q. L. R. 335. 16. The sittings of a court or of a judge are public. Nevertheless, the judge may ordvr in writing that they bj held in cameni, if a public hearing would be prejudicial to good morals or public order — Xnc- U. P. C- F. 87; C. P. C. 84; BeUot^W. Drrlaraiorif nml Jtitn itirlatirc l*rovisions. ,'» mat- )8J3. 17. Persons present at siltinjfs of the courts or of judge* must remain uncovered and in silence. — C (.'. P. A, amended. 18. Any person who, during the sitting of the court or of the judge, 'or wherever judg<*s are in the exercise of their func- tions, disturbs order, utters signs of approbation or disapproba. tiori, or refuses to withdraw or to obey the orders of the court or judge or the admonitions of the officers acting under its or his authority, may be condemned ut oncv. to a fine or imprison- ment, or both, according to the discretion of tiie court or the judge.— C. C. P. 5, G, 7, amended: C. C. 2273 ; R. C. C S., Art. 240 ; C. P. C. F. 88 ss. ; Cu'. 1209 ; X. Y. C. 8 33. 19. If the disturbance is caused by a person discharging any function before the court, he may, in addition to the ])u'nishment imposed in the preceding Article, be suspended from such function — C. C, P. 8. 20. Courts Qr judges may, in all cases brought before them, according to circumstances, even of their own motion, pro- nounce orders or reprimands, and suppress writings or declare them libellous. — C. C. P. 9, amended. 21. The judge may appoint an interpreter and allovv him a reasonable compensation, which forms part of the costs of the suit.— C. C. P. 10. 22. The judge may require an oatli when it is deemed npces- sary. — C C. P. II, inpirt. 23 The judge, the prothonotary, or a comraissioier author- ized for tl:ut purpose, has a right to administer anu -eceive tlie onth whenever it is required by law, by rules of practice, or by order of a court or judge, unless such right be restricted by some provision of hiw. — C. C. P. 30, in />art, ammded. 24. The court has the same powers as a judge upon matters as-igued totlie latter. — Aew. 25. The judge of the Superior Court may, in the district in wliicli he discharges his functions, appoint, by one or nion* comni'ssions under the seal of the court, as many person? as lie tiuds necessary, as oomniis.sioners to receive afTidavits therein, to be used iu any court in any district of the Province.— C. C. P. 30, in }Hirt. 26 The chief justice and any other judge of the Superior Court, and, in the case of the death of the chief justic*? or of his absence from the Province, any tuojidges of tlie said ('ourt,mrty. bv one or more comiriissions under the seal of the Court, appoint as many persons as they think necessary, within Hlt^ 1:1 1 ■ 1 ( 1 i j ' , 1 a a The, Coih of Civil Procedure. the limits of any of tlie other provinces of Canada, as commis- sioners to receive Jiffidaviis therein to be used in any court iu the Province.— C. C. P. 30, in jiarl. 27. The Lieutenant-Governor in Council may appoint com- jietent persons, residing in any country oiit^ide the limits of Canada, as comniissioners to receive atiidavits for use in any court of the Province, or necessary for any deed or document to be carried into execution or to have its eivil cl^*ct in tiie Province.— C. C. P. 30, 30a, «n//a/7, ame/if/c/.- II. S. ')859. 28. Any commissioner named under the three preceding Articles is designated as " ('omi7iissioner of the iSuperior Court for the district of , (or the Province of Quebec, as (he case may be.)" — Neiv. C. C. P. 30i/, in jiurt. 29. Affidavits received by such commissioners have the same force as if they had been received in ojten court. — C. C. P. 30, ill jioif, [iOu, in jj'trt, amended. 30. Like force and (fleet are given to all aflidavits received before a coniinissioiier authorized by the Lord Chancellor to administer anidav'Vj'n Kngland ; or before a notary public, under his liand and ofiicial seal; or before tlie mayor or eliief magistrate of any city, borough or incorporated town in Great Britain or Irehind, in any of Her Mitjesty's colonies, or in any foreign country, under the cutiinion seal of sudi city, borough 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 of Her Majesty, exercising his functions ina foreign country.— C.C. P. 3;); 20 Vic, c. 41. 31. Whenever a record or document is required by law to be transmitted from one conrt lo another, or to a different place, the transmission must be effected through the post oHice or by express l)y tlie prothonotary, and the party requiring it is bound to advance the charges. For any delay caused by the neglect of such parly to pay such cliarges, 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 oflicer.— C. C. P. 2i3, atntnded, 32. Two or more judges of the Superior Conrt, or of the (!)ircuit Court, discharging their duties in the same circui' or district, may, and must whenever the despatcli of business requires it, sit at the same time and at the same place in sepa- rate aiiariments in or out of term ; and each of such judges lias jurisdiciik)n for hearing and determining all causes and nuitters submitted to him, and has the same powers as if he were the Declaratory and Interpretative Provisions. onlv judpe siHing in such place.— C. C. P. 464, amended: n. S. 5899. 33. Whenever there h not at the chief place of a district any judge who lias jurisdiction in a matter, or whenever the judge is unable to discharge his duties for any reason whatsoever, the prothonotary tnay perform his duties in cases of evident necessity, and where by delay a right might otherwise be lost or . U.S. 2281». 41. The following tribunals also exercise jurisdiction by way of appeal from the rivil courts of the Province : 1. The Supreme Court of Canada ; 2. Her Majesty in Her Privy Council. — yew. SKCTION II Court of Queen^8 Bench, sitting in Apiteal. 42. The Court of Queen's Bench, .«?itting in appeal, and the judges thereof have an appellate civil jurisdiction throughout Powrift and Jiiri8art decide the issues ; I 'I -fn- 10 The Code of Civil Proccftun: W i! 2. Wlicn lliey order the doing of anythiog which cannot be remedied by the final judgment ; 3. When they unnecessarily delay the trial of the suit. — C. C. V. IIIG, amenled; 54 Vic, c. 48, 33. 2, 4. 47. Appeals from judgments rendered in the districts of Montreal, Ottawa, Pontine, Terrebonne. Jolictte, Richelieu, St. Francis, Medfonl, St. Hyacintbe, Iberville and Beauhainois are brought, iieard and det<'rminod in the City of Montreal ; and appeal.? from judgments rendered in the districts of Quebec, Three llivers, Saguenay, (,'hicoutimi, (iaspe, Kimouslci, Kamou- raska, .Montmaorny, Beauce and Arihaba.'ka are brought, iieard and determined in the City of Quebec— C. C. P. 1117, amendei; 54 Vic, c. 48, S. 3. SECTION III Superior Court and Court of Review, 48. The Superior Court has original jurisdiction in all suits or actions which are not exclusively within the jurisdiction of the Circuit Court or of the Exchef(i.er Court of (\'i.nada ; and in the district of Quebec it lias exclusive original jurisdiction in cases of petition of right.— C. C. P. 28, amended; R. S. 5858 ; .^4-55 Vic. (C), c 29. 49. The Superior Court lias original jurisdiction by means of •evocation in all suits and actions instituted in the Ciicuit Court, relating to : 1. Fees of office ; 2. Duties, rents, revenues or sums of money payable to the Crown : 3. Titles to lands or tenements ; 4. Annual rents or other matters by which iightsin future may be all'ected.— C. C. P. 1058, in i^art. 50. Excepting the Court of Queen's Bench, all courts, cir- cuit judges and magistrates. ani(ia The Circuit Court has jurisdiction in the same manner ab- the Superior Court, over judgments rendered within the limits of the district or circuit fur which it is held, by the Commission- eis' Court mentioned in Artic?<4 56. or by Justices of the Peace» by means of e Part of this Code, and submit the same to the judge or to the prothonotary, and may even sign in the name of the petitioners all petitions necessary for such proceedings — C. C. P. 23; R. S. 5887. 84. Every party appearing in person is held to have elected domicile in the office of the court in which the appearance is tiled.— C. C P. 84, in part: R. S. 5868, in part. 85. Whenever one of the parties has, since thecommencement of the action, left the Province, or has no domicile 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 his return that he has made fruitless endeavours to find him, and that, to the best of his belief, he is not within the limits of the Province. — C. C. P. 84, m part; R. 8. 58t)8, m jKirt. 86. Advocates and attorneys are bound to elect domicile within a distance of one mile from the building in which the court is held, and to have the same, as well as any subsequent change thereof, registered in the office of the court, in the re- gister kept for that purpose. In default of making such election of domicile, or of register- ing the same or any change thereof, or in case the domicile is found closed, such advocates and attorneys are held to have elected domicile at tfie office of the court, where all services upon them may be validly made. — C. C- P. 85, amended ; Lemay vs. (Jinff/as, 12 Q. L. R. 17. CHAPTER VII JOINDER OF CAUSES OF ACTION 87. Several causes of action may be joined in the same suff,. provided they are not incompatible or contradictory, that they seek condemnations of a like nature, that their jomder is not prohibited by some express provision, and th.U they are suscepti- ble of the same mode of trial. A creditor cannot divide his debt for *he purpose of suing for the several portions of it by different acuona. — C. C. P. 15. 1 rri [ ' i I 18 The Code of Civil Procedure. CHAPTER VIII ACTIONS AGAINST PUBLIC OFFICERS 88. No public officer or other person fulfilling any ptiblic function or duty can be sued for dumages by reason of any act done by him in the exercise of bis functions, nor can any verdict or judgment be rendered against him, unless notice of such action has been given him at least one month before the issue of tlie writ of snmnons. Suc*i notice must be in writing; it must state the grounds of the action and the name of the plaintitl''s attorney or agent, and indicate his office ; and must be served upon him person- ally or at his domicile. — C . C P. 22, amended. CBAPTER IX PROCRKDINGS IN FORMA PAUPERIS 89. Except in actions for penalties or for damages caused by slander oj libel, the judge m»y permit a party to plead inform^ jmuperis, and order the officers of the court to afford him their services without any remuneration. Such permission, nevertheless, does not exempt the party from paying the government tax or the costs of bailiffs. Such party, if he fails in the action, is not exempt from con- demnation to pay costs to the other party ; but no advocate or attorney who represents any such part}' may receive from him any fee or other compensation for his services, without render- ing himself guiltv of contempt of court. — (J. C. P. 31, amended ; R. S. 5S60 ; R. C" C. S., Art. 1G7. 90. Pfrmission to plead in forma pauperis is granted upon a petition, supporter! by affidavit, establishing that the petitioner lias a good ground of action or a good defence, and that he has not the means necessary to make the disbursements. The judge may allow the production of adverse affidavits, the cross examination of persons who have already made affidavits, and the oral exair.inatioa of new witnesses. — C. C. P. 31, 32, amended. 91. Such leave may be revoked by the judge upon proof that the party has since become able to make the necessary disbursements, or that he is guilty of improper conduct or of willful and unnecessary delay. — Neiv, in part. C. C. P. 32, amended;^. Y. C. 462. 92. If the party against whom proceedings are taken in formd pauperis incurs costs upon any incident in the suir, he cannot be compelled to pay the san^ e before final judgment, and such costs may then be compensated with those incurred by the opposite party. — New. Place of Instituting Actions. 19 93. If n party proceeding inJor>n(1paiiperi8ohia.msji\igmeni in his fa\'our, the other party may be condemned to pay coats, 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 distraction. No more than one execution can, however, be issued for all the taxed costs remaining unpaid ; it is issued at the instance ot the 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. — C. C I'. 33, amended. CHAPTER X PLACR OF INSTITUTIXQ ACTIONS 94. In matters purely personal, other than those mentioned in Articles 9*3, 97, 98, 103 and iOl, the defendant may hA sum- -moued : 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 personally served upon him ; 3. Before the court of the place where the whole cause of action lias arisen ; 4. B'-fore the court of the place where the whole or part of his property is situated, when he has left his domicile in the Pro- vince, or has never had such domicile, but has property therein, and ilie cause of action has not arisen tlioTein. — yew, in part. U. C. P. 34, § 1 ; R. 8. 5861, in part; C. C. 85 ; 52 Vic, c. 48; C. S. L. C, c. 83, s. 61. 95. A fire or life insurance company may be summoned by the insured, liis heirs and assigns, for rights arising out of a fire insurance i)olicy, before the court of the place in which the insured movables or immovables 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.— C. U. P. 31, § 2 ; R.S. 5861 in jiarf. 96. In an action for separation from bed and board, or for separation of property only, the defendant must be summoned 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.— C. C. P. 35, amended. 97. Any action in damages against a public officer by 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.— C. C. P. 36. ■:ji 111 II I •. 1 ■ I ll'i' ■ ! ! I ' W' t 1 i9 The Code of Civil Procedure. 98. Tn actions in warranty and in continiDince of suit, the- defendants are summoned at the place where the principal action was brought, wheresoever their domicile may be.— C. C. P. 40. 99. When a personal action is founded unon several causes of action arising in different districts, it may be brought before any court which has jurisdiction by reason of one of such causes of action. — Neio. 100. In every real or mixed action the defendant may be sum- moned before the court of his domicile or before that of the place where the object in dispute is situated. — C. C. P. 37. 101. When a real action has for its object an immovable or immovables, situated partly in one district or circuit, and part- ly in another, the Fuit may be brought in either, or in tlie district or circuit where the defendant has his domicile. — C C. P. 41, ametided. 102. In matters of succession, the parties are snmmoned before the court of the place where the succession devolves, if it opens in the Province; otherwise, before that of the place where the property is situated, or of the domicile of the defend- ant cr of any one of the defendants. — U. C. P. 39. 103. In matters purely personal, if there are several defend- ants in the same action residing in different districts, they may all be brouL'ht before the court of the district in which one of them has been summoned, provided that such summons be not made with the intention of withdrawing the real parties from the courts which would otherwise have jurisdiction. In real actions, they must be summoned before the court of the place where the object in dispute is situated. In mixed actions, before the court of the place where the object in dispute is situated, or before the court of the domicile of one of the defendants. — C. C. P. 38, amended. 104. If the sole judge adrainisteJng justice in any district is liable to 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 insufhcicntor 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. — C. (J. P. 42. CHAPTER XI GBNBRAL RULBS OF PLBADINO 105. In any proceeding it is sufficient that the facts and con- clusions be concisely, distinctly and fairly stated, without any •;fi General Rules of Pleading. 2| special form being necessary, aad without entering into argu- ment. Such statements are interpreted according to the meaning of ^vordsin ordinarj language.— jYeir, inpart. C. 0. P. 20 ; R. P. 0. H99. 106. Dates, numbers and quantities may be denoted by UgaTQS.—New. Eng. R, 200. 107. Any form of reference to an act or part of an act is sufticieut if it is intelligible.— C. C P. 26, inpart; R. S. 15. 108. The allegations are divided into paragraphs, numbered consecutively ; and each paragraph must contain, as nearly as may be, only one allegation. — New. Enrf. R. 200. 109. Admissions and denials are made, and explanations given, in so far as practicable, by referring to the paragraph •containing the tact admitted, denied or explained. Ucpetitiun of an allegation in subsequent pleadings is made by a simple reference to the paragraph of the former pleading •containing the allegation repeated. — New. R. P. O. 401. 110. Every fact which, if not alleged, is of a nature to take the opposite party by surprise or to raise an issue not arisingr from the pleadings, must be expressly pleaded. —iVew. Enj. R. 211. 111. Every fact alleged by the opposite party, the exist- ence or truth of which is not expressly denied or declared to be unknown, is held to be admitted. — ('.C.P. 144, tn part, amended. 112. Every affidavit must be divided into paragraph^, num- bered consecutively, and be in the first person. The names, occupation and domicile of the person making the affidavit must be inserted therein. The date when and the place where it was sworn must be inserted in the jurat.— iVejp. A. R. 0.95,96,97. 113. The court cannot adjudicate beyond the conclusions, ■but it may red'ice them and grant them only in part. — 0. (3 . P. 17, 114. The unconstitutionality of Any statute of the Province or of Canada cannot be pleaded before the courts of original jurisdiction or of appeal unless the party pleading the same has, at least eight days before the day fixed for the hearing, given to the Attorney-General notice of the question which .he intends to raise, with sufficient information to enable him to understand the nature of his pretensions. Upon such notice, the Attorney-General may intervene in Hi 1'A M til m i !'llil 1 11 22 The Code of Ciiil Prorcdtin: the case on belmlt'of the Crown, and take issue in writing on such questions. The judgment of the court must mention such intervention nnd such conclusions, on which it renders judgment as if the Attorney-General were a party to the suit. A copy of such judgment is forwarded without delay to the said Attorney-General.— (J. C P. 20a, amended; R. S. 5856. 115. Except where it is otherwise provided, every proceeding of the contestation must be served upon the opposite party; otherwise it is not deemed to be regularly tiled.— TVew, in part. C. U.P. 402, §1. 116. When any writ or paper whatever requires to be served out of the district, the service may, in the absence of any pro- vision to the contrary, be made either by the sheriff or a bailiff of the district in which the court is held, or by the sheriff or a bailiff of the district in which such service is to be made j but na more costs can be allowed in the former case than in the latter, unless the judge otherwise orders if he deems pioper. This provision applies also to executions agninst movabler property and to attachments before or seizures after judgment. — U. C. P. 461, amended; R. S. 5897. THIRD PART raOCEDURE IN THE SUPERIOR COURT 1 CHAPTER XII SUMMONS 117. Every action before the Superior Court is instituted by means of a writ of summons, in the name of the Sovereign, saving ihe exceptions contained in this Code, and other cases provided for by special laws. — C. C. P. 43. . 118. This writ of summons is drawn up either in French or iu English, is signed and attested by the prothonotary, and is issued by the latter upon the written requisition of the plaintiff. —C. C. P. 44, 45, 46, amended. 119. In cases of urgency, the writ may be i.ssued outside office hours, and even on a Sunday or holiday, without judicial stamps thereon, provided Ihe amount of such stnmps be de- posited witli the officer issuing the writ,who must affix the stamps upon the fiat as soon as possible. — C. C. P. 4G7a, amended; R. S 5901. f ^ Sunt 1110118. 2.? W.:si* 'I 120. The writ of summons remains in force, while uDSerret!, during six months from its date ; but the judge or protbonotary may, before the expiry of such dtliiy, upon its being established by affidavit or bailiff's return that service was impoi^sible, con- tinue it for another period of six months, and so on from time to time until service is made. — Aew. K. P. O. 238. 121. Saving the particular exceptions hereinafter mentioned, 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 hin> served in such district or in any other district, or they may be directed to the sheriff' or to any bailiff of the district in which such writ is to be served, commanding him to summon the defendant to appear before the court within the delay and at the place therein mentioned. If there are several defendants residing in different districts, several writs may issue, directed in the same mauner. — C. C P. 48, amended ; R. S. 5861^. 122. The writ must state the names, the occupation or quality and the domicile of the plaintiff', and the names and the present or last known residence of the defendant. The Attorney-General for Canada, or for the Province, is sufficiently designated by the name of his office whenever he pleads on behalf of the Crown. Married women and widows may be described as defendants under the surname of their husband or of their deceased husband, adding the words: "wife of" or "widow of'\ respectively, and the names or a sufficient designation of the husband or of the deceased husband. In actions upon bills of exchange, promissory notes, or other private writings, whether negotiable or not, it is sutiicient to give the initials of the Christian or first names of the dtfenoant, such as they are writteh upon such bills, notes or instruments. If the defendant has no domicile, residence or place of business in the Province, and his names are uncertain or unknown, it is sufficient to describe him so that he may be clearly identified, provided that the writ is served upon him personally. When a corporate body is a parly to the sui% it is sufficient to ini^ert its corporate name and to indicate its principal place of business. If a commercial partnership, having its principal place of busine-s outside the district, is not registered therein, it may be summoned by its firm name, with mention of the place wliere such principal place of business is situated ; but the judgment rendered against it is then executory only against partnership property.— iVcM>, in part. C. C. P. 49; R. a. 5864; R. P. 0. 317. 123. The ciiuses of action must be stated in the writ or in a declaration annexed to it. In actions upon deeds of sale or notarial obligations, bills of « 24 The Code of Civil Procedure. I il I «xcban(;e, promlesory notes, private writings, or for accounts, it is sufKcient to insert in or annex to the writ a declaratioa drawn up in accordance with the forms contained in Schedule A in the Appendix to this Code. Such declaration must be signed by the attorney for tlie |>lain- lifF, or by the plaintiff himself if he has no attorney, — Neiv, in 2>art. C. C.P. 50. 124. If the object of the demand is a thing certain, it must be described in such a manner as to clearly establisli its iden- tity. if the demnnd relates to the whole or part of a corporeal immovable .situated in a division where the official plan and book of reference are in force, it must be described in accord- ance with the ])rovisions of Article 2168 of the Civil Code. If it relates to a lot or part of a lot situated in a locality where the official plan and book of reference are not in force, it must be described with certainty and precision, by mentioning its nature, ilie city, town, village, parish or towjiship, street, range or concession wherein it is situated, and also the Innds conterminous to it ; and, if it is a piece of land known un(^er a particular name, it is sufficient to give its name and its situa tion. If the demand relates to rents constituted for the redem])tlon of seigniorial rights, or to rights relating to any seigniory, ihey must be described accurding to the provisions of Articles r)720 10 5727 of the Revised Statutes.— C. C. P. 52, awe/n/ec// C.C. 2168 ; N. Y. C. 1511. 125. No summons can be served on a Sunday or a holiday without the leave of the judge or prothouotary. — C. C. P. 54, amended. 126. No summons can be served before seven o'clock in the morning, or after seven o'clock in the afternoon, without the leave of the judge or prothouotary. This provision does not apply to cases of capias ad respon- dendum. — C. C. P. 55, amended. 127. Service is effected by leaving with the defendant a copy of the writ of summons, and of the declaration, if there is one. The copy must be certified cither by the prothonotary or by the attorney for the plaintiff, or by the plaintiff himself, if he \m% no attorney ; and it must be indorsed with a statement, signed by the officer who makes the service, of the date of service. Sucli indorsement is not required whenever a writ specifies the day upon which the party summoned must appear. — C. C. P. 56, amended. _,_^. 128- Service must be made either upon the defendant in person, or at his domicile or at the place of bis ordinary resi- Summotis. 2;-> >dence, speaking to a reasonable person belon^^ing to the family. In the absence of a regular domicile or ordinary residence, service may be made upon the defendant at his office or place of business, if he has one. — iV«t', in part. C. C. P. 57. 129. Service of the summons may be made at the domicile elected, or upon the person mdicated for that pur'-ose by the party.— (;. C. P. 72, amended. 130. In all cases in which the defendant resides in the same domicile with the plaintiff, he must be served personally, except upon leave granted by the judge or the prothonotary. — 0. C. P. 58, amended. 131. If there are several defendants, they are served in the manner above-mentioned, separately and distinctly, and a copy of the summons is left with each of them, except in the cases hereinafter provi(''"i. — C. C. ?. 59. 132. Service upon masters or captains of ships, or other mariners, who have no domicile in the Province, may be matle on board the ship thev belong to, speaking to a person in the ship's employ.— C. C.*P. G6. 133. A wifie separated from bed and board must be served separately fnjm her husband. A wife not separated from bed and board is sufficiently sum- moned by service made upon her husband. — C. C. P. G7, in part. 134. Persons imprisoned may he summoned by personal service between the wickets. — 0. C. P. 70. 135. Any service upon the heirs of a person deceased within the previous six months may be made upon them collectively, without mentioning their names or residences, at the former domicile of the deceased ; if, howevor, there was no such domi- cile in the Province, or if it is closed or is no longer occupied by any member of the decease. I's family, the service may be made upon one or more of the heirs in the manner prescribed for ordinary summons.— jVejp. 0. P.G.41. 136. When a defendant who is absent from the Province has no domicile, ordinary residence, or place of business therein ; or When a consort, sued for separation from b>!d and board, is absent from the Province ; The judge, or prothonotary, upon a return to that effect, may •order tlie defendant to appear within one month from the last publication, in the manner hereinafter prescribed, of the order thus rendered, A synopsis of the order, drawn up in accordance with the ibrm contained m Schedule B in the Appendix to this Code, is ]^ 'H:i '':& % i m ij > ♦■ ) 1 , \ 1 ; 1; ? ii J M The Code of Civil PiovnUur twice inserted in French and in English, in a newspaper pub^ lished in each language, respeciively, in the district where the court sits. If tliere is nu such newspaper in the district, it is inserted in a similar newspaper in the nearest locality. Such newspapers are neniioned in the order— C. 0. 1*. 02, G7, in i^art^ 68, amended; R. ^". 5866; 53 Vic, c. 55, s. 2. 137. In the cases mentioned in the preceding Article and without prejudice to the mode of summons tln'rein prescribed, the judge, or the prothonotarv, upon proof by affidavit or other- wise that the defendant has his domicile vt ordinary residence in another Province of (Canada, may grant leave to serve the writ at such domicile or residence. This leave is indorsed in writing upon the writ, which may then be served by any literate person, who makes an affidavit of service, sworn to before any Justice of the Peace having juris- diction in the place where the service was made, or before a Commissioner ot the Superior Court for this Province, or by any bailiff ot the said Court.— C. C P. 69, amended; R. S. 5867 ; 53 Vic, c. 55, s. 3. 138. Church fabriques and vestries are served by leaving copies of the summons separately with the cure or rector, or person performing his functions in the parish, and with the then acting churchwarden. — C, C. P. 65. 139. Service upon a general partnership may be made at its place of business, or, if it has none, upon one of the partners. — C. C. P. 60. ! i 140. Service upon an unincorporated joint-stock company may be made at its office, by speaking to a person employed in such office, or elsewhere upon its president, secretary or agent. — C. C P. 61, amended. 141. If the company has no known office or place of business and no known president, secretary or agent, the judge, upon « return to that effect, may order that it be summoned by adver- tisement to be inserted twice during one month in at least one newspaper.— C. C. P. 62, amended. 142. Service upon a body corporate is made in the manner provided by its charter, and, in the absence of such provision, in the manner prescribed in the two preceding Articles. — C. C. P. 63. 143. Foreign companies or corporations, and all executors of wills, administrators, or representatives of the successions of persons having had property in the Province, may, if they have an office or an agent in the Province or carry on business therein, be summoned there, in the manner provided in Article n Ii Ilii SunimoHS. n 140, nnd, if ibey have no such oftice, in the niiinner prescribed in Article 141. If such companie.a, corporations or persons are domiciled or have their principal place of business in any other Province of Canada, ihey may be summoned in the manner prescribed in Article 137.— C. C. P. 04, § 1, amended; R. S. 5865. 144. Foreign companies which contro?, cither as owners or lessees, any line of railway, of telegruph or of telephones, ex- tending to or passing through the Province, and which have no office, president, secretary or agent therein, r.'.e sufficiently summoned by service made upon any person in charge of 'i station, or 6t a telegrafdi or telephone rlnce, respectivtdy, belonging to such companies or under their control. — (J. C. f*. 64, in part, amended; R. P. 0. 208. 145. The judge may, if circumstances require it, itend the delay mentioned in Articles 130 and 141, shorten or extend tne delay mantioned m Articles lao and 141, or order i\ mode of service other than that prescribed in those Articles an^l in Articles 143 and 144.— Aw. C. P. G. 54. 146. If the defendant fraudulently evades service of the summons, the judge may, upon a return to that effect, pre3cril)e whatever mode ot service he deems proper. — Aeio. 147. A summons cannot be served in church, or in court, or upon a member of the Legislature upon the floor of the House. — C. C. P. 71, amended. 148. Bailiffs cannot make services in matters in which they are interested, or in matters which concern their relations by blood or by attinity, to the degree of cousin-german, inclusively. — C. C. P. 74, amended. 149. In ordinary cases the defendant is summoned to appear within a delay of six days from ihe date of the service upon him of the writ, when the distance from the place of service to the place where the court is held does not exceed fifty miles. When the distance exceeds fifty miles, the delay is increased one day for each additional fifty miles ; provided always that the delay need never exceed twentv days, whatever the distance. — ^ew. C. C. P. 75, in part ; Smith vs. Donovan, 19 L. C. J. 3.'!0. 150. At any time after the issue, but before the service of the writ of summons, the defendant may obtain from the judge aa order commanding the plaintiff, under penalty of the summous being discharged, to serve upon him a copy of the writ and ot- the declaration within a specified delay. — New. m -•■ifi 'i?!g I '.I i't! I PIP III i B8 The Code of Civil Procedure. , CHAPTER XIII RBTDRN OP AOTIONa 151. The writ of summons must be filed in the office of the -court, during office hours, on or before the last day of the delay allowed for appearance.— C. C. P. 7ii, 81, French version, amended, 152. The writ must be accompanied with a certificate of service — U. C. P. il. 153. Such certificate of service, if made by a bailiff, must Btate : 1. His name, his residence, and the district for which he is appointed; 2. The day and hour of the service. 3. The place where, and the person with whom a copy of the writ was left ; 4. The distance from the bailiff's residence to the place of service; 5. The distance from the Court House to the place of service ; 6. Tlie amount of the costs of service. If the certificate is made by the sheriff, it must contain the same statements, witS the exception of wliat is mentioned in tlie first paragraph. — U. C. P. Id, amended. 154. If the writ is not relumed, the defendant may, upon giving notice to the plaintiff within tiiree days from the' expiry of the delay for appearance, and depositing the copy of tlie writ served upon him, obtain from the judge an entry of default Against the plaintiff, and be discliarged from the suit with costs. The judge may, nevertheless, allow the return of the action upon such conditions as are thought proper, if application is made within the same delay of three days. The plaintiff cannot institute a new suit for the same cause of action until he pnys the costs to which he has been condemned toy reason of such default. — C. U. P. 82, amended. CHAPTER XIV FILING OF EXHIBITS. 155. The plaintiff must, nt the time that he returns the writ, file in the office of the court the written proofs which he has alleged in support of bis demand, together with a list or inven- tory of such exhibits. If be fails to do so, he cannot afterwards file them without giving notice to the opposite party.— C. C. P. 99, 106, amended. f\ Appearance and Default to Appear. 156. An ezbibit in blnnk, or a liat of exhibits in which the designation of any exhibit is not filled up, cannot bo reneired. — C. C. P. 105. 157. Until the exhibits have been filed in the manner herein- above prescribed, the plaintiff cannot proceed with bia demand. — C. Cf. P. 103. 158. Every exhibit 6Ied becomes common to all the parties to the suit, who may obtain copies thereof from the prothonotary so long as it remains in his bands — C. G. P. 104. 159. Exhibits filed cannot be taken out of the ofTice, nnless the opposite party consents and a receipt is given.— C. 0. P. 101. 160. A person who is in possession of a document filed and forming part of a record, or who hns taken or received it, may, upon motion, be coerced by imprisonment to return the same, without prejudice to his liability for damages. — C. (J. P. 102. CHAPTER XV APPEARAN'CB AND DEFAULT TO APPRAR 161. The defiendant, when duly summoned, must file a written appearance in the office of the court on or before the last day of the delay allowed for appearance. It the defendant does not so appear and ihe plaintiff does not take any proceeding in the case, the defendant may appear, but he is not entitled, unless the judge otherwise orders, to any longer delay for pleading to the action than if he iind appeared within the delay prescribed.— xVtu', in part. U. C. P. 83. 162. If the defendant does not appear within the delays prescribed, the plaintiff may obtain from the prothonotary an entry of default again-t him, and, upon obtaining a certihcate of such entry, may proc*»ed to judgment. — 0. C. P. 86, amended, 163. Notwithstanding any proceeding on the part of the plaintiff, the defendant may, at any time before judgment, upon sufficient cause shown, obtain from the judge leave to appear,, upon such conditions as are deemed proper. — C. C P. 87> amended. 'in i'ti 30 The Code of Civil Procedure. CHAPTER XVI CONTESTATION OF THE ACTION I i li; I Ml i 8KCTI0N I t Preliminary Exceptions § 1.— RULES COMMON TO ALL PllELIMINARY 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 return of the action or the filing of the pleading to which they relate, saving the cases mentioned in Articles 177, Paragraph 6, 178 and 181. Such motion must be presented to the court as soon as it is possible to do so after the expiry of the delay to which the •opposite party is entitled. The court may, when the motion is presented, allow either parly to answer in writing, and to adduce evidence, if neces* sary — New. 165. The motion cannot be presented unless it is accompanied with a certificate from the prothonotary, of which notice must hnve been given to the opposite party at the same time as the motion, establishing the deposit in the office of the court of the sum fixed by the rules of practice.— AVw. U. C. P. 112. 166. All preliminary exceptions are urged at the same time, •except in the case of Articles 177, Paragraph 6, 178 and 181 ; but the declinatory exception is first disposed of, and the other exceptions are then decided by the competent court. — Netv. C. C. P. 107. 167. At any time before judgment upon preliminary excep- tions, saving the oases stated in Articles 177, Paragraph 6, 178 and 181, the plaintiff may, if he thinks the exception is filed solely in order to retard tiie suit, require the defenrlant, in writing, to plead to the merits, and may foreclose him if a de- fence is noi filed within six days from the demand tliereof; in which latter case the court takes cognizance ot no other issues than those raised upon the preliminary exceptions. — C. U. P. 13 1, 128, 120, amended. 168. If the defendant files his defence, proof takes place upon all the issues unless the court otherwise orders -, and, if he succeeds upon the preliminary exceptioa, he may recover from the plaintiff the costs incurred upon the contestation on the merits to which he was forced under the provisions of the pre- •ceditg Article.— U. U. P. 1.32, amended. Cotitestation of the Action. Zl 169. When tlie derendant, has pleaded a dilatory exception, which is aftc-'^'irds maintained, the foreclosure from pleading to the merits, obtained against him under Article 167, is without effect ; but he is bound to file his defence within six days after the expiry of the delays granted upon his exception, and, in default of his so doinir, the foreclosure holds good. If, upon being required to do so by the plaintiff, the defendant has pleaded to the merits, he may, within six days after the judgment mnintaining his dilatory exception, amend his defence or plead anew, without thereby incurring any costs; in default of his doing so, he is presumed to abide by the defence filed. — 0. C. P. 133, amended. § 2.— DECLINATORY EXCEPTIONS 170. A party summoned before a court, other than that which should hear the issues, may ask that he be referred to the com- })etent court, or that the action be dismissed if there is no such xjourt. But if tho defendant, upon filing his declinatory exception, deposits the sum claimed, the judge must, instead of referring the case to the com[)etent court, dismiss the action. — 0. U. P. 113, amended; C. P. C. F. 168, 169; C. P. G. 65. 171. If, nevertheless, the court has no jurisdiction by reason of the subject-matter of the action, the reference may be de- manded at any stage of the case ; and, if the reference is not demanded, the court is obliged of its own motion to refer the case to the proper authority. — U. C. P. 114, amended. 172. The court in declaring its'" incompetent may award costs according to circumstances. — U. C. P. 115. § 3. — EXCEPTIONS OF Us pendens 173. The defendant may, in case of lii< fiemiens^ ask by a preliminary exception that the action be dismissed. — Neio. €. P. 136. § 4. — EXCEPTIONS TO THE FORM 0. invoke any of the following form, whenever they cause a 174. The defendant may grounds by exception to the prejudice : 1. Irregularities in the writ, declaration or service ; 2. Incapacity of the plaintiff or of the defendant ; X Absence of quality in the plaintiff or in the defendant; 4. The fact that a statement of the causes of action is not contained in the writ or in the declaration ; 5. Irregular description of the object of the demand.— 0. C, P. 116; C. P. 74, 75, 76, 77, 100,»101, 103, 104, 105, 106, 108, 109, 110, 117, 118. \m 1 V,i 1 1 32 The Code of Civil Procedure. ! i'liiii 175. Irregularities in the writ or service or in the declara- tion, whicti cause a prejudice, entail nuUitj only when they SLr& not remedied. — New, 176. Irregularities in the writ or service or in the declaration- are waived by the appearance of the defendant and his failure to take advantage of them within the delays prescribed. — C. C. P. 1 19, amended. § 5.— DILATORY EXCEPTIONS 177. The defendant may stay the suit by dilatory exception ; 1. If the delays to which he is entitled for the purpose of making an inventory and deliberating, whether as heir or legatee, or in the case of community of property, have not expired ; 2. If the defendant has a right to demand security from the plaintiff, or the execution of some precedent obligation ; 3. If the plaintiff contravenes the rule that the parties must remain in their respective positions until these are changed by judicial authority ; 4. If the defendant has a right to exercise a recourse in "Warranty against a third party ; 5. If the defendant has a riglit to demand the discussion of the principal or original debtor ; 6. If the plaintiff has joined in his action several claims which are incompatible or contradictory, or which do not seek condemnations of a like nature, or the joinder of which is prohibited by some express provision, or wtiich are susceptible of different modes of trial ; and in such cases the defendant cannot be bound to answer the action until the plaintiff has declared his option ; 7. If the plaintiff' does not reside in the Province, and a power of attorney from him is not produced ; 8. If, in the case of an indivisible right or claim, all the parties interested and whose presence is necessary are not made parties to the suit.— C. U. P. 120. 178. If the dilatory exception is founded upon the legal delay for making an inventory and deliberating, the delays lor pleading to ;he action and even for setting up preliminary exceptions do not begin to run against the defendant until after the time allowed him to make such inventory and to deliberate. — C. C. P. 121, amended. 179. Any person not resident in the Province, who brings or institutes any actioD, suit or proceeding in its courts, is bound !|!:'n Contestation of the Action. 8:j to give lo the opl>05ite party, whether a subject of Her Majesty or not, security for the costs woich may be incurred in conse- quence ot such proceeding. — New. C. C. 29. 180. The defendant may require that the plaintiff be ordered to give security for the payment of the costs in popular or qui (am actions fur the recovery of tines or penalties.— i^Veu?. C. C. P» 128; R. P. 0. I'iri 33.; It. S. 5716. 181. Whenever a party is bound to give security, all pro- ceedings in the case may, upon application by the opposite partyr be stayed until such security has been given. The delays for filing preliminary exce!>tion8 and the defence do not begin to run until after the date ot the service upon the defendant's attorney of a notice informing hiui that siicli security has been given. — C. 0. P. 12S, ametvled ; R. S. 5871^ C. C. 29. 182. The application tor security for costs may be made before the judge, or the prothonotary out of term, and may bo adjudicated upon forthwith. If the person bound to give security fails to do so within tlie delay fixed, the opposite party may obtain a judgment of nonsuit. Saving the foregoing provision, any person, from whom security may be demanded, may at any time, whether the same- has been demanded or not, pui in such security after one day's notice t) the opposite party. — C.C. P. 129, ainende. 0. C. P. 402, § 2. Contestation of the Action, 35 195. No issue of fact can be inscribed before judgment on the inscription in law. — Neto. § 2.— DEFENCE 196. Tlje defendant may plead by defence : 1. The non-completion of the term, or the non-fnlfillmeDt of the condition, upon which the right of action depends ; 2. The extinction, in whole or in part, of the right claimed by the plaintiff; 3. The falsity, in whole or in parr, of the allegations of the action. — A'etv, in part. U. C P. 136. 197. The defence must be filed within six days after the expiry of the delay allowed for appearance. Whenever preliminary exceptions have been Qled, this delay runs from the lime of judgment upon such exceptions, except where it is otherwise provided in t.ie preceding Section. — New^ in part. C. C. P. 137. § 3.- ANSWER AND RKPLT 198. Within a delay of six day?, the plaintiff must answer ft defence containing new facts, and the defendant must reply to an answer of like nature. If such pleadings are not sufficient to fully set forth the con- tentions of the parlies, ihe judge may grant leave to tile a I dilional pleadings.— ^ew. 0. 0. P. 138, 139, 148. 199. The judge may allow either party, upon such condi- tions as are deemed proper, to plead, by way of supplementary defence or supplementary answer, material facts which have arisen since issue joined. — Xew- CaL4.6i] //oone, §83. 200. Grounds of law against any defence or other pleading Are urged by way of inscription, in accordance with Articles 191 to 195 ; and grounds in the nature of preliminary excep- tions are urged by motion, in confortnity with Articles I6i, l»J5 and 16G.— Aew. ,C. C. P. 138, in part. ■'J- I < in t . 4 § 4.— FILING OF EXHIBITS 201. The provisions contained in Articles 155 to 160 govern in so far as may be the filing of exhibits referred to m the de- fence and answers. if such exhibits are not filed with such pleading, they cannot afterwards be tiled without the consent of the opposite parly or leave of the judge. A judge may extend the delay for filing the exhibits or writ* ten proofs. — iVcjr, in part, C. 0. P*. 141, in par^ li ' fii 36 TJie Code of Civil Procedure. ■A U ;iil ' ■ § 6.-^BDLKS APPLICABLE TO DKFENCK8, ANSWKRS AND REPLIES 2G2. Each party must reply specially and cateGrorically to the allegations of the opposite party, either by admitting or denying tliem, or by declaring that he is ignorant of them. The party may, nevertheless, deny generally all such alleg- ations, but a general denial excludes any other defence, ans- wer or reply upon the facts ot the case. — ^eio. 203. Any party who pleads payment, novation, release, compensation or prescription may draw up his plea in accor- dance with the forms contained in Schedule E in the Appendix to this Code. — Aew. 204. When an amendment toany pleading has been allowed, the delay to answer such pleading is reckoned from the day on which the amendment is made and served, without any demand of answer being necessary .—C. U. P. 142. 205. After the expiry of the delay for filing a pleading, the party in default is by law foreclosed from doing so, unless witl» the consent of the opposite party or leave of the judge. — C. C. P. 140, amended. 206. Such foreclosure does not, however, take place without an order from the judge if the opj/osite party has not tiled with bis pleadings, in the manner prescribed, the exhibits or written proofs upon which they are founded. — 0. C P. 141, in party amended, 207. When the defendant is foreclosed from pleading the plaintiff may proceed to judgment ex parte.— C C. P. 143, in part. 208. The denial of a signature or of a material part of a bill of exchange, promissory note, or any other private writing or document, upon which any action is founded, or of the fulfill- ment of the formalities required by law to render the document valid, roust be accom{ianied with an affidavit establishing the facts alleged. fl.^o v: 1 .'? fii nbove cases the declaration by the heir or legal repre- f.9 of ft signer, maker or indorser, that they do not know, ^•^ or the signature of the person represented, must ...id^i- oath. •i > ! ■' r ^e founded upon failure to present a bill of ezchancre o; i^v ; -ry note at the place fixed must be supported by an affidavit establishing that at matarity provision had beea made for payment at the appointed place, and, in default there* of, presentation at the appointed place is presumed against the maicer and acceptor.— U. C. P. 145, inpartj amended; G. U. 1223. Contestation of the Action. 37 209- The denial oFany document specified in Article 1220 of the Civil Code must be accompanied with the giving of security for the costs of the commission required to obtain the proof of such document. In the cases of Paragraphs 5 and 6 of the same Article, the denial of the original deposited must, moreover, be accompanied with an affidavit of the p testation is subject to tbe same rules and delays. — C. U. P. 153^ amended. Incidental Proceedings. 39 SECTION II InterventioM 220. Every person interested in an action between other parties may intervene therein at any time before judgment — CO. P. 164, amended^ 156, in part. 221. An intervention is made by a declaration, in ordinary form, containing all the grounds which justify the party in intervening — New. C. C P. 165. 222. It canot stav the proceedings in the principal action unless It IS allowed by the judge — New. C. C. P. 156. 223- When the intervention is allowed by the judge, the action is suspend^^d during three days ; and, if the intervening party fails within that period to have it served upon the parties in the cause and to file a certificate of such service, it is held not to have been filed, and has no efTect. The filing of the certifi- cate of the prothonotary as to such default is equivalent to a judgment dismissing the intervention. Service is made at the office of the court upon parties not represented by attorney. — 0. C. P. 157, amended. 224. The proceedings are subject to the same rules as the action during which thev are made, and the delays for pleading are computed from the date of the service of the intervention — C. C. P. 158, amended. SECTION III Improbation 225. Besides the action of improbation which may be brought as a principal action, a fiarty in a suit may proceed by improbation against an authentic document produced by him, Avhich he has asked to have declared null, or by the opposite J arty. — C. C. P. 159, § ; 160, in part, amended. 226. Incidental improbation is begun by a petition, praying that the party be allowed to proceed by improbation against the document therein designated, and that the opposite party be held to declare whether he intends to make use of such docu- mcnt. The petition must, under pain of nullity, be signed by the party himself, or by his attorney under a special power filed with the petition.— C. C. P. 161. 227. The presentation of the petition must be preceded by a deposit in the office of the court of a sum fixed by the judge, to The Code of Civil Procedure. meet the costs to be incurred, in whole or in part, in the event of the improbation being dismissed. — C C. P. 163, amended, 228. Improbation may be bepin at any staf^e of the suit until the closing of the proof, andeven afterwards before judg- ment, upon proof that the falsity was not ascertained until after the proof waa closed. All proceedings in the principal suit are suspended until the improbation is decided. — C. O.P. 164. 229. Within six days after the presentation of the petition, unless the delay is extended by the judge, the oppo-ite party roust serve upon the plaintiff in improbation and file in the ofhce of the court a declaration, sigued by himself or by his special attorney, as to whether he intends to avail himself of the document attacked. If he tails to make such declaration within the delay fixed, or if he declares that he does not intend to avail himself of the document, the hitter is struck from the record, and is also declared null if there are conclusions to that effect.— U. C. P. 1G5, 166, amended. 230. If the defendant in improbation declares that he intends to make use of the document, the judge, upon the demand of either of the parties, orders that such document, and the original thereof if necessary, be deposited in the othce of the court at the diligence of the party who relies upon it, and that, ihe parties in charge thereof be compelled by all legal means to deposit it.— 0. C. P. 167, amended. 231- The parties take communication of the impugned docu- ment at the ofliice of the court, without removing it. — U. U. P- 169, amended. 232. Six days after the filing of the impugned document, or if it has been already filed along with the declaration required by Article 229, within six days from such declaration, the plain- tiff must file his reasons of improbation. — C. C. P. 170, amended. 233. In other respects the issues are joined and tried in the same way as in the action during which they are made, and are subje'ct to the same rules and delays. — C. C. P. \T1, amended, 234. The judgment which decides upon the improbation like- wise determines to whom of right the document shall be handed iry tutor, subrogate-tutor, or curator, or heir presumptive, or donee of either of the parties ; 7. If he las any imprest in favoring any of the parties. — C. C.P, 176, amended. 238. A judge is disqualified if he or his wife is interested in the action. — C. C. P, 177, amended. 239. A judge who is aware of a ground of recusation to which he is liable is hound, without wailing until it is invoked, to make a written declaration of it, to be filed in the record. — C. C P. 179. 240. A party who is aware of a ground of recusation against a judge is bound to make it known as soon as it comes to his knowledge.— U. C. P. 180. 241. After the declaration of the judge or of one of the parties, the party desirous of recusing the judge is bound to dot ^^1 • h ^.. u -r' ''' } 42 The Code of CMl Procetlurc. 80 wilhin eight davs rrom the sftrvice uf such doclaration ; after which be cannot do so, unl«^B3 the court, fur sudicient reasons, baa extended the delay.— C. C. P. 181. 242 the jnont 42 If no declaration as above-mentioned has been made, judge may be recused at any stage of the case before judg- jDcnt, upon the declaration of the party that the grotindfl of recujiation have only recently come to bisk'iowledge— 0. C. P. 182. 243. A recusation ia proposed by means of a petition con- taining the grounds thereof, wiiiuh must be signed by th^ party himself or by his attorney under a special pofver. If the party is absent from the Province, his attorney oi litem may, without special power, sign the petitiu'i asking that the judge abstain from sitting.— C- C. P. 183, amenied. 244.— When th<^ recusation is made before the judge has made his decla'^ation, communication of it must be given to him, and he must declare in writing whether the grounds are true or not; another judge then proceeds to determine whether the recusation is well-founded, without the recused judge having a right to be present. — 0. C. P. 184. 245. If the recusation is proposed against the sole judge re. siding in a district, it is carried to the chief-place of a neighbour- ing district designated by the judge who is recused, and the record is forthwith transmitted to such place by the prothouo- tary — C. C. P. 185. 246. If the recusing party has no written proof in support of his recusation, the judjjes declaration is conclusive, and the recusing party cannot produce oral testimony, or even obtain delay to produce written evidence. — C. C. P. 186. 247. If the recusation is maintained, the judge cannot, for any cause or under any pretext whatever, be present in court during ihe hearing of the case or the rendering of the judgment. — C. C. P. 187. 248 If the recusation has been carried before a court of another district, and is maintained, such court remains seized of the case, and the record from that period forms part of its records. But if the recusation is dismissed, the case is sent back to the former court.— C. C. P. 188, 189. 249. A party who has a right to recuie a judge may renounce his right by filing a written consent that the judge hear and decide the case, except in the case mentioned in Article 238.-C. C. P. 190. Incidental Proceedings. 45 250. In sue)) case, however, as also when the party fails to recuse, the judf;e is not bound to sit, unless the grounds of recusation have been declared i'i.-:utticient. — C. C. P. 191. SECTION VI Disavowal 251. A party may disavow his attorney ad litem who has exceeded Ins powers. He mny also disavow an attorney whom he has not employed, without prejudice to his rights it he does not do so. — C. C. P. 192. 252. A disavowal may take place during the suit or aft«>r jidgment. The former is treated in this Section. The latter is subject to the rules of procedure in ordinary actions. It does not suspend the execution unless upon an order of the judge to that etfect. — New, inp.irt. (J. C- P. 193, §1 ; 1 J'iaeau, p. 55); 3 Rousseau & Laianey, p. 630; Union Bank vs. Dawson, 11 Q. L. R. 3i9. 253. A disavowal can be made only by the party himself or by his attorney under a special power, and the pai'ty himself must declare that he did not authorize the proceeding which he repudiates.— C. C. P. 194. 254. Disavowal is made by filing in the ofBce of the court, before which the case is peniv also order several actions to be tried at the same time and decided on the same evidence, or the evidence in one action to be u?ed as evidence in another, or may order one of several actions to be tried and decided tirst and the other iactions to be staved until judgment in such action.— xVew;. A. R. 0. 34. CHAPTER XVIII lil TRIAL SECTION I Inscription 293. When the case is not to be tried by a jury it may be inscribed by either party fjr proof and hearing after the expiry of three days from issue }o'mQd.—N'ew. C. U. P. 220, 234, 243, in part. 294. For the purpose of such inscription, the prothonotary must k?ep a roll on which the cases are inscribed. — C. C. P. 237, amended. 295. No case can be inscribed on the roll unless a cop)' of all pleadings necessary to join the issue, for the use of the trial judge, is filed in the office of the court. The judge or the prothonotary has the right, before the witnesses are heard, to require from each |>arty a deposit suffi- cient to cover the stenographer's tees, and further to require, if necessary, during the trial, additional deposits.— A'eew. CO. P. 320a, § 4, 3206 ; R. S. 5888 ; L'nff. R. 454 j N. Y. U. 981. , 296. Notice must be given to the opposite party at least six days before that fixed for proof and hearing. — New, in part. C. C. P. 235. SECTION II Summoning Witnesses 297. Witnesses and parties who do not appear voluntarily are summoned at the diligence of the party rec[uiring their attendance by a writ of subpoena, a copy of which is served upon them at least twelve hours in advance, if the service is made upon them in the city, town or local municipHlity where the court sits, and, in other cases, at least one day before that fixed for their examination. When the distance exceeds fifty miles, the delay is increased one day for each fifty miles.— C. C. P. 244, amended, 298. Witnesses may be summoned either to declare what tbejf^ know, or merely to produce some document in their possession, or to Uo both. — C. C. P. 245, amended. Trial. 4^ 299. Any person residinj? in the Province of Ontario may be compelled t<> appear as a witness, if the judpe deems it neces- sary, provided an action for the same cause be not pending in the Province of Ontario.— C. C.P. 246, amended ,- C. S. C, c. 79, 83. 4, 5, 6. 300. The service in the case mentioned in the preceding Article cannot be made without a special order granted by the judge, if deemed necessary ; and such order must be mentioned upon the writ of subpoena. — C. (J. P. 247, amended ; U. S (J., c. 79, s. 7. 301. Service of the writ of subpoena is made in the manner provided for service of writs of summons. In the Province of Outario the service is made by any person whatever who must make return thereof under oath.— C. C. P. 248, amend''('; R. S. 5878. 302- If the person to be summoned as a witness is in prison, the party reqi'iring him may obtam an order from the judge <;ommanding the warden or gaoler to bring him before the court to give his evidence. — U. C P. 253, amended. 303. Any witness summoned who, without sufficient cause, fails to attend at the place, day and hour appointed, may, upon a rule personally served upon him, or, if he evades service, served in the manner prescribed by the judge, be condemned to a fine not exceeding forty dollars, to be recovered, for the use of the Crown, in the same manner as any other sum awarded by judgment, or to the payment of the costs incurred by his default, which may be levied by execution in the ordinary way, or to both, independently of any recourse the party who summoned him may have for damages caused by such default, and of im- prisonment for contempt, if it lies ; provided, always, that at the time he was served with the subpoena, a sufficient sum was tendered him for travelling expenses, at the rate usually allowed by the court of his domicile. If the defaulting witness resides in the Province of Ontario, he can be punished for his default only by the court within whose jurisdiction be resides, upon a certificate, transmitted by the court, of his default to appear according to the fore- going provisions. — C. C. P. 249, amended; C. S. C, c. 79,8. 8. SECTION III Order of Trial and Adjournment 304. If, on the day iiced for the trial, one of the parties does not produce any witnesses and give any valid reason for their absence, his proof may be declared closed.— C. C. P. 283, amend- ed. '.,11 hi i I i 31 I 50 The Code of Civil Procedure. 305. If, on the day fixed for the trial, a witness of one of the parties is absent for any valid reason, the case may be adjourneri to a future day, provided the party shows that he has been diligent, and naakes oath that the absent witness is necessary and that such absence is not due to any contrivance on his part.— iV^cw. C. P. L. 464. 306. When a party askg lor an adjournment of the case on. account of the absence of a witness, the opposite party may require him to declare on oaih what facts he intends to prove by such witness; and, if such party admits their truth, or admits that the witness would have sworn to them, the trial is proceeded with as if such witness had been examined. — -/Vc«v C. P. L 465, 466. 307. When '.* is >l'3hed under oath that a witness, by reason of illness oc '^^v. , cannot attend the trial, the court, instead of adjourniij^ n.t case, may order the deposition to be taken in conformity with Article 346. — JSleiv. C. P. L. 467. 308. The court mixy r,i ^ gr .,'. an adjournment ot a case to any party who applies then lor, fo any other good cause shown.— iV'ew. C. P. L. 468. 309. In all the above cases, the court in granting the ad- journment imposes such conditions as it deems proper. — New. 310. The party upon whom the burden of proof lies must proceed first to the examination of his witnesses. The opposite party then proceeds to make his proof, after which the other party may adduce evidence in rebuttal. The court may, in its discretion, allow the examination of other witnesses.— iVew. C. C. P. 282; C. P. L. 476, 477; a.& L. 594. 311. At the conclusion of the evidence, the party uport whom the burden of proof lies addresses the court first; the opposite party follows, and the other party replies, and if in hia 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.— JVew. C. P. L. 485. SECTION IV Examination of Witnesses 312. The testimony of one witness is sufficient in all cases- in which proof by testimony is admitted. — J\ew, C. C. 1230. 313. Any party may demand that duriiig tbe examinatioa of a witness the other witnesses retire from the room where tbe trial is held.— U. C. P. 254, amended. Trial 51 314. All persons are competent to render testimony ex- cept : 1. Persons deficient in understanding, whether from imma- turity of age, insanity or other cause ; 2. Those ubo are insensible to the religious obligation of an oath ; 3. Those civilly dead ; 4. Husbflnd or wife, for or aga'nst each other, Nevertheloss, if consorts are separated as to property, and one of them as agent has administorod property belonging to the otlier, the consort who has so administered may be examined as a wit- ness in relation to any fact connected with such administin- tion ; provided the court is of opinion, in view of the circum- stances of the case, that it is just and advisable to order such examination. — New. C. C. 123i, amended: C. U, P. 200, 25?. 315. Persons competent to give evidence are all subject to the same general rules. Relationship, connection by marriage, and interest are objec- tions only to the credibility of a witness. — C. C. P. 252, in part, amended; R. S. 5880. 316. A party may be examined by the opposite party, and his evidence may be used as a commencement ot proof in writing. He may also give testimonv in his own behalf. — Neiv. C. U, P. 251 ; 54 Vic, c. 45, s.2. ' 317. The fact that a party does not offer his testimony can- not be construed against him. — New. C. C. P. 251, in part, amended ; 54 Vic., c. 45, s. 2. 318. Upon the improbation of an authentic deed, the testi- mony of the notaries, attesting witnesses or other function- aries who witnessed the deed, may be received. — C, C. P. 252, in part ; R. S. 5880. 319. A person afflicted with an infirmity which renders him unable to speak, or to hear and speak, may be examined as a witness either by writing down bis oath or affirmation and his. answers, or by giving his evidence with the aid of signs through' an interpreter.— C. C. P. 261, amended: 56 Vic. (C), c. 31,, s. 6 ; Stephen Evid., Art. 107. 320. The bailiff who served the writ of summons cannot testify to any facts or admissions which came to his knowledge after the issue of the writ of summons, except in relation ta the service itself.— iVew. C. C. P. 262 stT £2 T?ie Code of Civil Procedure. 321- Before a witness can be heard, he must swear before the judj?e, or the prothonotary, to tell the truth, or, in the case of a Quaker, the word : " swiear " is replaced by the words : "sol- emnly, sincerely and truly declare anvl affirm." — U. C P. 255, amended. 322. The form of oath and the manner of takinp it may be chttnged according to the religious belief of the witness, in such a manner, however, as to bind bim tu declare nothing but the truth.— C. C. P. 256. 323. A witness refusing to take the oith or affirmation is deemed to refuse to give evidence. — C C P. 2j7. 324. Before the witness is admitted to be sworn, he may be examined by either of the parties as to his religions belief: and he cannot take the oath or the affirmation, or give evidence! if he does not believe in God, and in a state of rewards and punishments after death.— C. C. P. 259. 325. Any person who is present in the room in which the trial is being hold may be examined as a witness, and is bound to answer as if he had been regularly summoned.— U- C P. 250, amended. 326. A witness who is present cannot refuse to give evidence under pretext that the necessary amount to defray his travel- ling expenses has not been paid to him. — C C. P. 258. 327. The witness must first be asked and must declare his names, age, quality or occupation, and domicile — C. (J. P. 267. 328. The opposite party may establish, by a preliminary examination of any witness produced, or in any other manner, whatever grounds he aay have for objecting to such witness. — C. U. P. 268. 329. A party cannot impeach the credit of a witness pro- duced by himself, but he may prove by others the contrary of what such witness has stated, or, by leave of the court, he may prove that at other times he has made statements inconsis- tent with his present testimony ; provided, in the latter case, the witness be tirst questioned upon the subject, — C. C. P. 269. 333. A witness who, without valid reason, refuses to answer or to produce documents or other things connected with the suit and in his possession, may be held by coercive imprison- ment to do so.— 0. 0. P. 217. 331. A witness is not bound to answer questions put to bim' if his answering would expose him to a criminal proiiecution. Trial. ftS This objection cau be m idc only by tbe witness bimself. — C. U. P. 274. 332. He cannot be compelled to declRre what has been re- vealed to hira confidentially in his professional character as religious or legal adviser, or as an officer of state where public policy is concerned.— C. C. P. 275. 333. When witnesses are called to prove the identity of any object in the possession of one of the parties, the judge may order that the party shall, either in court or at any otiier con- venient place or time, exhibit such object totl e witnesses thus CJillpd to give evidence concerning it; and, in default of bis so exhibiting the object, it will be held to have been identified- The judge may likewise order any witness who is in posses sion ot any object which is the subject of the litigation, to pro- duce it, under the same penalties ir. case of deftiuU as for refus- ing to answer pertinent questions. — C. 0. P. 273, amended. 334- A witness is bound to produce any document in his pos- session toacbing the mHtter in issue, and to allow copies or extracts thereof to be taken if it is a private writing ; and such copies or extracts, certified by the prothonotary» are entitled to the same credence as would be given to the origi- nals.— C. C. P. 276. 335. It is the duty of the prothonotary to ask the witnesses if they require taxation, and, if they do. to tax their expenses with due regard to the nature of the voyage and the duration of their stay. — G. C P. 280, amended. 336. The taxation may be enforced by execution against the party who summoned the witness, in the manner and after the delay proscribed for any judgment. A witness may sue out execution against the opposite party condemned to pay his expenses, provided that no execution has already been sued out by the party who obtained the judgment,^ or that the amount allowed the witness has not already been paid to such party or his attorney in virtue of a duly receipted bill of costs. — U. C. P. 281, amended. 337. A party who has examined more than five witnesses on the same tact cannot recover the costs of the other depositions without the permission of the judge. — Ni.w. C. P. 0. F. 281 j Boitard, No. 496. 338. A witness must not withdraw without the permission of the court.— 0. C. P. 278, amended. 339. Witnesses are examined by the party producing them or by his counsel, but only toacbing the facts in issue. i '■■ if 'i ■■■ '1 f 1 ^' TB (-'' '^^ 11 54 The Code of Civil Procedure. The questions must not be leading, unless the witness evi- dently ailempta to elude the question or to favor the other party.-C. C. P. 270. 340. When a party has ceased examining a witness he has produced, the opposite party may cross-exnmine such witness in every shapa upon the facts referred to in the exiniination in chief; or he may require an entrv to be made of his declining to cross-examine. — New. C.C.P. 271, in part; Steiihca Evid., Art. 127. 341. A witness may be re-exumined by the party producing him when ne'V facts have been elicited on the cross-examination, or for the purpose of exulaining his answers to the cross- questions.— (J. C. P. 272. 342. If the examination of a witness cannot be completed on the day he appears, he is bound to attend again on the next following juridical diiy, or on such other day as is assigned to him by the court and is entered upon the registers of the court. In default he is liable to the same penalties as for refusing to attend upon the subpoena. — C. C P. 279, amended. 343. A deposition, given at a former trial of the same action or of another action founded in whole or in part unon the ^ame cause of action, may be given in evidence, if it is established that the witness who made it is dead, or is so ill as to be untible to travel, or is absent from the Province, and that the opposite party had a full chance to cross-examine the witness. — New. Crini. Code 687 ; Stephen Evid. 32. 344. Unless where it is otherwise provided, the witnesses in any contested case are examined in open court, the opposite party being present or duly notiKed. The judge may ask them any questions he deems necessary. — C 0. P. 263, in partf amended; R.^S. 5881. SSOTION V Taking down Evidence 345. The evidence is taken down by means of stenography, under the direction of the court, unless it orders otherwise. — New, in part. C.C.P. 320a, § 5 ; II. S. 5888. 348. The court may order that the stenographer's notes be read to the witness and corrected in open court. — C. C. P. 320fl, § 6, in partf amended; R. 8. 6888. 347. The stenographer's notes are transcribed only when the judge so orders, or in case of review or of appeal, or at the Ti'ial. ar/, 7, in part, amended,- R. S. 5888. 349. Whenever the court orders that a deposition be not taken down by means of stenography, it takes down or causes to be taken down in writing imder its direction, notes of the material parts of the evidence and of all objections insisted upon bv either of the parties, with the decisions thereupon. — er due notice to, the parties; and such deposition has the same effect as if it were taken at the trial. If the witness can be produced at the trial, he nujst be- examined anew in the ordinary manner, if it is required by either party. — C. C P. 240, amended. w SECTION III Examination of Witneaaea elaewhere than where the Case ia pending 357. The judge may, in his discretion, and without anr commission or other formality, order the proof to t)e taken, oV any person, even if be is a party, to be examined either upott articulated facts, or otherwise, at any place where sittings of thfr Superior Court or of the Circuit Court are held, before any judge at such place. In such cases, after the record has been four days in the hands- of the prothonotary or clerk at the place to which it has beeo. Incidents of THal and of Eiidencc. :>7 gpnt, the parties may procvvd lis if the caie were tbere peDdinff. -CO. P. 241. . 358. A copy of such order is transmitted to the prothonotary or clerk of the court at the place inentioneii, together with such part of the record as mny be necessary ; and the protho- notary or cI^rk may thereupon take the necessary proceedings to compel the witnesses or the nartiea to appear at the plfico named on any day Hied by the judge, on which a judge will be j)rpsent nt such place. In the case of this and of the prece'^;ii>f Article, the rules contained in Articles 301,303 and 55V api»ly.— C. C. P. 242, am ended, SECTION IV Interrogatories upon Articulated Fads 359. The parties may be examined upon articulated facts as sunn as the dt-fence 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 ap|)ear or to plead to the action, he may be examined un articulated facts as soon as he is so in default.— A'^H?, in part. C. C. P. 221, amended; R. S. 5873. 360. Parlies are summoned to answer interrogatories upon articiilaled facts by means of a process issued by the proll)o- notary, in the name of the Sovereign, upon a written requisition to that effect, and ordering the party to appear before the court, the judge, or the prothonotary, to answer tlie interrogatories to be put to him, which are annexed to the process and are served upon him.— Nctt), in part. C C. P. 222, 226, in part, amended. 361. The order to answer upon articulated facts is served upon the party personally or at his domicile, and not upon his attorney, rnless such party is absent or absconding ; and a copy both of the order and of the interrogatories miist be left with him. If tlie i>artyis absent, the attorney who haa been served may apply to have delay given him to appear; or, if he declares the place where such party then is, the opposite party may require that he be examined under a commission. — CC.P. 223, amended. 362. A party summoned to answer interrogatories upon articulated facts must appear personally to give his answers, under oath.— C. C. P. 224, § I, amended,- R. S. 5874. 363. When the service is made upon a corporation or legally recognized body or community, the answers may be given under oath by the president, manager, secretary, treasurer or other ■kl! ) 51 -r-1':'f 1 . :•* 58 The Code of Civil Procedure. officer or employee, if he holds a general or special authorization for that piirfiose ; or the answers which he must give and swear to as being those which the party summoned intends to give mav be ppecified by special resolution. When such service is nuide upon a foreign corporation carry- ing on business in this Province, the answers may also be given under oath by the person who is at the time intrusted with car- rying on the atlairs of the corporation, whatever be his design- ation or official title ; but such answers may also be given by any person previously authorized by a resolution of the board of directors of such foreign corporation to appearand answer in its behalf t lie interrogatories that may be served upon it. — C. €. P. '224, in part, amended; R. S. 5874. 364. If the party served with the rule fails to attend or to answer the questions put to him, a default is recorded against him, and the facts may be held to be admitted. The judge may, nevertheless, for cause shown, and upon such conditions as he thinks fit, allow the party so in default to answer the interrogatoi-ies afterwards, before the conclusion of the evi- dence of the party who summoned him. — U. (J. P. 225, in party amended. 365. The interrogatories must be drawn up in a clear and precise form, in such a manner that the absence of an answer shuU be an admission of tlie fact sought to be proved. — C. 0. P. 227. 366. The answers are taken down in writing and signed by the party. The court or the person before whom the party is summoned to answer may put any other interrogatories he may deem necessary and pertinent. If the party refuses to answer 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 l)e admitted. — C. C. P. 226, in part, amended. 367. The answers must be direct to the question, categorical and precise. If any dispute arises during the examination, the parties are sent before the judg« to have it decided. — U. C. P. 225, in part^ 228, in part, amended. 368. Every answer which is not direct, categorical and pre. cise may be rejected, and the facts mentioned in the interroga> lory declared and held to he proved. — C. C. P. 229. 369. The expense of interrogatories upon articulated facts forms part of the costs in the cause. — C. C. P. 232, amended; R. S. 5875. Incidents of Trial and of Evidence. 69 370. Any party, on being served with a rule to answer inter- rogatories upon articulated facts, may demand the necessary funds to pay his travelling expenses; but when he is btfore the court, the judge or the prothonotary, lie cannot refuse to be sworn or to answer unless he is paid. He lias n right to h».ve his expenses taxed, and such taxation may be enforced by execution against the opposite party. — C. i;.P. 233. SECTION V Oaths put by the Court 371. When some proof has been made of the demand or de- fence, the court may, 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 deter- mining the amount for which judgment ought to be given. — C. C. P. 448 J C. C. 1254, amendnl. 372. The oath upon the value of the thing demanded can only be put by the court to the party claiming when it is im- jiossible to establish such value otherwise.— C. C. 1256. SECTION VI Proofs bejore Examiners 373. Thejudge may appoint a competent person as an ex- ainiuer to take the proof, when, by reason of the nature of the dispute, or the number and distance cf the witnesses to be ex- amined, it IS shown by any of the parties concerned that tlie ends of justice will be better attained by the appointment of such examiners. — U. C. P. 300, amended- 374. The rule appointing an examiner must specify the plnce where 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.— C. C. P. 301, amended. 375. The examiner, before entering upon bis functions, must be sworn before a judge or a commissioner of the Superior Court to fulfil his duties faithfully and impartially, and such oath must be in writing and be annexed to his return.— C. U. P. 302. 376. He must give the parties at least six days' notice of the time and place at which he will begin the examination. — riigiriii Trial by Jury. 07 429. In any action fur damnges brought against a ]»ili|iu officer by reason oi'any illegal aci done by bioi in the pertuini- ance of his functions, the judge may order that the trial slmtl be held in another district if it is shown that the case cannot bo tried impartially ir- the district in which the suit is brought C. C. P. 35G, amended. SKCTION u The 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 qualitied lu serve as grand jurors in criminal eases, which is de|»osited in his otfice, the names of all persons residing within a distance of fifteen miles from the court, in the order in which such names appear. — U. C. P. 357, amended. 431. Immediately after receipt of the notice given by the sheriff that he has completed the revision of the grand jury lists, the prothonotary is bound to forthwith correct the copy in his possession so as to make it conform to the jur}'- lists so re- vised ; and such corrections are certified by the slieritf. The list of jurors for civil cases is revised by tlie protho- notary according to the list of grand jurors for criminal cases so revised, by striking out the names ot deceased, absent or dis- qualified persons, and adding the names of new persons qualified to serve as jurors. The prothonotary is also bound to strike out from time to time the names of all persons whom the slieriff, in any pending case, returns as d' ad, absent or disqualified, or who aiv declared by the court to be so. — C . C. P. 3(il, amended: II. S. 263G, 2641, 5893. 432. The grounds of exemption f/om serving as jurors are the same as in criminal matters. — C C. P. 3G0, amended; It. S* 5892, 2621 ; 59 Vic, C. 43, s. 2. SECTION III Formation of the Special List and Striking the Panel 433. The judge, upon motion of either of the parlies, may fix a day for striking the panel, and another day for the trial, either in term or in vacation, and order the summoning of a jury to try the issues, either at the place where the court is held or in any other district, according to circumstances, and, in the latter case, order the record to be sect to the prothonotary of the court at the appointed place. — C. C. P. 362, amended. J • ' !■ lit t ft f full If i I CHS The Code of Cicil Ptoccdure. 434. The raotion for tite fixinff of a day for trial must be accompanied with a deposit in the office of the court of the amount fixed bv the ruleg of practice.—C. C. P. 365, amended; R. P. S. C. 65. 435. If the action is of a commercial nature, the jurors to be eunimuned are taken and selected only from anionjrst the per sons, speakinjf the required language, who are desijjnated in the jtiry-Ust as merchants or traders, in the order in whicl\ they stand upon tlie list ; aud in cases where one of the parties is not a trader, and objects to a j'iry composed wholly of traders, the judge may order that one half only of the jury be composed of traders. If there are not upon the jury list the number of merchants or traders that should be summoned to fo'-ra the jury, the special list is completed by tHking other names from the jury-list in the order hereinbefore prescribed. — C. C. P. 363, amended. 436 Upon the application of either party, if the opposite party does not object, the judge may order the jury to be com- posed exclusively of persons speaking the French language or of persons speaking the English language. If the parties are of different origin, and one of them demands a jury de medielatc linguct, or if such application is made by a corporation which is a party to the suit, the judge orders the jury to be composed of equal numbers or" jwrsous spt-akiug the French language and of persons speaking the English language. — (J. u. P. 364, amended. 487. Upon the order being granted, the prothonotary takes from the list of jurors for civil matters, commencing with the name of the first juror following that of the last juror included in the special list |)reviou3ly made, the names of fifty jurors, whose narne^ are next on the li^t, having, in the s[iecial cases, the qualifications required according to the order of the judge, and makes a s|>eciat list thereof to form partuf the record in the case. — C. C. P. 366, amended. 438- Upon the day and at the hour fixed for striking the panel, the parties must attend for that purpose at the office of the court.— U. 0. P. 367, amended. 439. Each party strikes alternately, from the special list pre- pared by the prothonotary, the name of one of the persons therein designated, to the number of twelve, paraphing each name struck out, and the twenty-six names then remaining form the panel from which the twelve jurors who are to serve in the case are taken.— C. (J. P. 368, amended. 440. In the case of Articles 435 and 436, licitber party qan strike out the names of more than six persons speaking the Trial hji Jury, 69 French langiiAj^e or of mvore than six pcriions spcnkinf; tho English languaf^e, or the names of more than six traders or aon- traders, as the case may be.— C. 0. P. 369. 441. If either of the parties fails to attend for the purpose of striking the panel, the prothonotary ma^' strike twelve names from the special list ou his behalf, observing the rules prescribed in tho preceding Article.— (J. 0. P. 370. 442. When any party who has demanded a trial by jurv allows a delay of thirty days to elipse from any date at waicu the case stands ready for trial or for a new trial, without pro« ceeding to bring on the trial, he is thereu])on by the sole opera- tion of law deprived of his right to a jnrv trial ; but the judge may, upon application made within the delay, extend 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, tiie case may be inscribe J for proof and hearing m the ordinary manner.— j!Vew. C. C. P. 371. SECTION IV Summoning of Jurors 443. As soon as the panel is formed, the prothonotary delivers to the party who applies for it a writ of Venire Faciax, in the name of the Sovereign, signed and attested by the pro- thonotary, ordering the sheriff to summon the twenty six persons whose names compose the panel. A copy of such panel is annexed to the writ. — C. (J. P. 372, amended. 444. The jurors must be summoned at least four days before the day fixed for the trial.— C. C. P. 373. 445. The sheriff is not bound to leave a copy of the writ of Venire Facias with each person, but merely a notice under his signature, summoning him in virtue ot such writ to appear upoi the day, at the hour, and at the place fixed for the trial. This notice must give tie names of the parties to the case, the names, occupation and residence < f the person summoned as a juror, and the day, hour and place, fixed for the trial, the sum- mons to appear as juror, the date of the writ of Venite Facias, the date of the notice, and the signature of the officer to whom the writ is addressed.— C. (J. P. 374. SKCTION V Formation of the Jury and Challenges 446. As soon as the case is called on the appointed day, the sheriff must return before the court the writ ol Venire Facias 'll u Hi : -'I i * I : -Mi t*v '■■iU' m t^U II ..f i" \3 ) 'i *li 70 The Code of Civil Procedure. to which is annexed the copy of the panel of jurors, nnd must also report his ]»roceedirig3, including the certihcates of service upon, or attempts to serve, those per.-^ons whose names appear in the panel.— iVcw. C. C. P. 375, 377 ; It. S. 2607. 447. On the day fixed for the trial, the persons summoned ns jurors must appear at the appointed hour, at the place where the court is held, rnder a |)enalty not exceeding twenty-five dollars, which may he immediately'imposed by the court. Such penalty is levied hy the sheriff' on the poods and chattels of the person so lined ; and, in default of sufficient goods and cbattela such person may be imprisoned for a period not exceed- ing litteen days. The court may, however, for good cause shown, reduce or remit such penally or imprisonment. Any juror duly summoned, who without sufficient cause fails to attend at the time and place appointed, is furthermore liable to the parties for all damages caused by his default.— C. C. P. 376, amended; R. S. 5894. 448. After the jurors summoned have been called and a sufficient number to form the jury are in at tendance, either narty may challenge the array on the ground of partiality, or of frau(i, or of wilful misconduct on the part of the officer by whom the panel was returned, or on the ground of such causes of nullity as may be found in the summoning of the jurors or in the makiug up of'the lists or panel.— C. C. P. 377, amended; Crim. Code, t560, § 1. 449. The challerge must be in writing, stating the causes of nullity relied upon, and must conclude by demanding that the panel be quashed.— C. C. P. 378. 450. The presiding judge decides the challenge, and may, if necessary, order the facts upon which it is based to be substan- tiated on oath.— C. C. P. 379. 451. If the challenge is pronounced valid, the party who applied for a trial by jury must obtain the issue of another Venire Facias.— C. C. P. 380. 452. If there is no challenge to the array, or if the challenge is overruled, the prothonotary, in order to form the jtu-y, pro- ceeds to call and swear in twelve of the persons summoned, following the order in which they appear on the panel, saving the cases in which the selection is to be made with reference to special qualifications.- C C. P. 381, amended; C. S. L. C, c. 84, s. 43. 453. la cases of a commercial nature, the names of the merchants or traders summoned as jurors must be called first, Trial by Jury. 71 ftnd, if they are not in Bnfficient number, the jury is completed from nmong the other persons summoned. — 0. C P. 390, HtnendeU. 454. Either of the parties may challenpfe for cause any person called to form part of the jury, before such person is sworn; hut wl)«>rc there are s<'verfll parlies on the same side they must join in making a challenge. — New. in part. C. C. P. 382; CaHm. 455. The grounds of challenges to the polls nret 1. That any juror is subject to any disqualitication or disabiU ity, as providej by law ; 2. That any juror is related to, orcnnnected by affinity with, ^ny i)arty to* the suit, within the degree of cousin-gerraan, inclusively; .".. That any juror is interested in the suit, or is not indifferent between the parties.— iVc?r. C. C. P. 384 ; R. S. 2620 ; 58 Vic, c. .'U, s. G ; Crim. Code, 068, §§ 4. 5. 456. The court may, in its discretion, require the challenge •lo he reduced to writing by the party making it. — New. Crim. C'.ile, 668, § 0. 457. The challenge is summarily 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 thecourt considers a reasonable time, the triers are unable to agree, the court may discharge them from giviner a decision, and may direct other persons to be sworn in their place.— C, C. P. 386, 387 ; Crim. Code, 668, § 8, in Jine. 458. The juror himself may be examined on oath as to the matter of the challenge.— C. 0. P. 388, amended. 459. A challenge founded upon a judicial condemnation tiiiist be accompanied wiih an authentic certificate of such con- ^iomnatiou.— C. C. P. 28i>, 460. If several of the jurors 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 court or sitting judge may, with the consent of the parties, but not otherwise, give an order in writing to the sheriff or the officer -actii : in liis stead, to make up the number by taking forthwith from among the persons present in court the requisite number of individuals qualified to serve as jurors : but the jury cannot be wholly composed of tales; and if all the jurors summoned fail to attend, or are lawfully challenged, the trial cannot then. . U . P. 391, amended. \ ■■ i''" ; ■ .=f- 72 The Code of Civil Procedure. 461. If a juror called is not clialleaged, or it' the cballeog& is overruled, he is sworn to try the matter at issue and to give his verdict in a just and impartial manner according to the evidence.— C. (J. P. 392. 8BCT10N VI Proceedings be/ore the Jury 462. Three days ai least before that fixed for the trial, each party must d liver to the prothonotary, for the use of lite judo;e who is to preside at the trial, a copy of the pleadings necessary lojoin the issue, together with a. factum or case, inclosed within a sealed cover, containing a statement of the facts of the case and of the authorities upon which he relies.- C, C. P. 393, amended. 463. After the return of the Venire Facias on the day fixed for the trial, if neither party appears, the jurors are disciinrged; if the pl/iiotiff appears and the defendant makes default, such default is recorded and the plaintiff may proceed ex p'trte,- if the plaintitl' alone fails to appear, his default is recorded, and judgment of nonsuit is entered against him, with costs to the defendant.— C. C. P. 394. 464. The plaintiff may also, at any time before vtrdict,^ withdraw from court or abandon his suit, and a like judgment of nonsuit, with costs, is rendered against him. — U. C. P. 395, ame?ided. 465. No paper can be read to the jury without leave from the judge; and, if it is not authentic, it must first be proved.— C. C. P. 396. 466. The prothonotary keeps, under the direction of the judge, full minutes of the proceedings at the trial, including all admissions, and all exceptions taken, or objections made, orally in court.— U. C. P. 397, in part, amended. 467. A copy of such minutes is made out by tlie protho- notary, and, after being certified by the judge, is filed of record, and is held to be the true record of all proceedings mentioned tiierein, and stands in lieu of any bill of exceptions by e'ther party against the evidence or the trial.— C. G. P. 398, amended. 468. The witnesses give their evidence orally in the presence Of the jury, saving th.; provisions of Articles 343, 356. 359 to 370, and 380 to 390.— C. C. P. 397, in part ; 399, 402, amended. 469- Wbenevei the judge is of opini< n that the plaintiQ' has given no evidence upon which a jury could find a verdict, be may dismiss the action. — New. Trial by Jury. 73 ♦70. The ordinary rules as to the conduct of csises inscribed for proof and hearing apply, so far as may be, to jui-y trials.— New. C. U. P. 399a; R.S 5895. 471. The party upon whom the burden of proof lies opens the case and adduces his evidence. The opposite party in turn opens bis case and adduces bis evidence ; and upon the conclusion of any evidence in rebuttal, or if there is no evidence in rebuttal upon the conclusion of his evidence, addresses the jury upon the case. The party who began is thereupon entitled to reply. If his opponent does not adduce evidence, the party who began addresses the jury at the close of his case, and the onpo- site party then replies.— U. C. P. 403, a.nendeil; R. P. 0. 675. 472. When each party has staled bis case and adduced his evidence, the judge, it' he deems it necessary, sums up the evi- dence to the jury.— U. C. P. 404. 473. If either party objects to the judge's charge, the judge must, either immediately or as soon as he conveniently can, reduce o writing the portion of his charge which is objected to, mentioning the objecJion made. What is thus written is signed by the judge and forms part of the record in the case.— C. U. P. 405, amended. SECTION VII Provinces of Judge and ■ Jury 474. It is tlie province of the judge to declare whether tliere is any evidence and whether that evidence is legal. — C. C P. 406, amended. 475. The jury finds the facts, but must be guided by the directions of the judge as regards the law.— C. C P. 407. SECTION VIII Verdict 476 When the case is finally submitted to the jury; they may render a verdict immediately or retire tor deliberation. If they retire, they must remain together in some convenient place, under charge ot an officer appointed by the court, until they agree upon a verdict, 1 be officer so acting must not suffer them to communicate with any person, except by order of the court : and he must not, before their verdict is rendered, communicate to any person their deliberations or the verdict agreed upon. — Neiv, in part, C (J. P. 408, § 1 ; Cal. 613. m 'j!. M ^1 'f ) I A 4 '■ '.' 15 ' i I 1 lii i I i m i t 1 h 11 :l i 74 TAe Oo(Zc 0/ C'/fti Procedure. 477. The judge may, nevertheless, (luring ihe trial or wb''^ the case is under deliberation, permit them to separate, a^d order that they attend again at a specified time. If the jurors fail so to attend, they are liable to the penalties attnchtd to contemf)t of court, witliout prejudice to the recourse of tiie parties against them for damages. — C. C. P. 408, § 2, 409. 478. If the jury are permitted to separate, they must be Admonished by the judge not to converse with or suffier them- selves to be addressed by any other persons in reference to the case. — A'eu'. C'al 611. 479. The jury may at any time, even after the summing up "by the judge, but in his presence and with his permission, in oi)en court, exanune again the witnesses already heard. They may also ask the opinion of the judge upon any ques- tions of law which present themselves, and may, with his per- mission, take communication of any document of record. — C C. P. 410, amended. 480. The agreement of nine of the twelve jurors is sufficient to return a verdict — C. C. P. 411. 481. If nine ot the jurors cannot agree upon the verdict to be returnel, the jury may, in the discretion of the court, be dis- charged, and another jury may be summoned. — C. C. P. 412. 482. The prothonotary, after ascertaining that all the jurors are present, receives their verdict and enters it in the registers of the court, inserting their names, and stating the number of tl:ose who concur in the verdict if it is not unanimous. — C. C.P. 413. 483. When there is an assignment of facts, the verdict must be special, explicit and articulared upon each fact submitted. — C.C. P. 414, amended. 434. When the ])arties have n greed to dispense with an assignment of facts, the verdict is general, either in favour of the plaintiff for a specific sum, or in favour of the defendant. — C\ C. P. 415. 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 by either party, the jnvy >'re discharged without rtndering a verdict, with costs against the party who demanded a trial by 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. I! Trial hy Jury, 76 Tlie defaultinff party is the: . ,)on deprived, by the operation of law, of his right to a trial r jury. — C. C P. 416, amended. 486 The prothonotary, in the case of such default to pay, must immediately issue, agaiust the party condemned to costs, a writ of execution, to be enforced by the sherilf, for the recovery of the allowance due the jurors.— C. U. P.417. 487. The verdict must be given upon all the issues submitted to the jury.— U. C. P. 418. 488. The verdict cannot in any manner pronounce upon the costs.— C. C. P. 419. 489. The presidinp judpfe may order the amendment of any clerical errors that have occurred in any proceeding in the case before the jury or in the verdict. — (J. C. P. 420, § 1. 490. If at any time before verdict a juror becomes through illness or any other cause unable or in deiault to perform his duty, the judge may adjourn the case, or order him to be dis- charged ; and, in the latter case, the trial may proceed with the remaining jurors, or another juror may be sworn and the trial be begun anew, or the jiirv mav be disch»rged and a new jury be impanelled to try the case.— AVir. C. C. P. 420, §§ 2, 3 : Cal. fiir. ; C. I C F. .394, JJolloz Jtep. vo. " Instruction Criminelle,*' ^'ox. 184G, 1804 ss. SECTION )X Judgment after Verdirt 491. The trial judge must, either at once or after a delay for fuitlier consideration, render judgment for the party in whose .favour the verdict has been given, i iJess for special causes stated in a certificate filed of record, he reserves tlie case for the consideration of the Court of Review. — Xeiv. R. P.O. 682. 8BCTI0N X Jirmedies against Judgment/!, and Proceedings in Reserved Casfis § 1. — OKNERAIi PR0VI3I0N.S 492. An appeal lies from the final judgment rendered by the trial judj:;e. in the same manner as from any final judgment of the Sufierior Court. — Neic. 493. The appellant must annex to his inscription in review or appeal a statement in concise language of the groimds upon which he relies, with conclusifms for a new trial, or for a different judgment, or alternatively for any of these reniedies. — Xew, '" ii I ■: 35i Ik ■''- li 7« The Code of Ciiil Procedure. 494. When the trial judge has reserved the case for the con- sideration ot the Court of Review, a party may move before that Court for judgment in accordance with the verdict. A motion may also be made for a new trial or for a judgment different from the verdict, or, alternatively, for any of these^ remedies. A stntement of reasons similar to that mentioned in tt e preceding Article must then be nnnexed to the motion. The motions must be made before the Court of Review on the Hrstor second day of its next term beginning at least ten days after the day on which the case was reserved. — New. 495. The judgment of the Court of Review, rendered in the exercise of its original jurisdiction in reserved cases, is executory and subject to appeal in the same manner as any tinal judg- ment of the Superior Court.— ^ew. 496. The Court may, in all cases where the judgment of the trial judge, or the verdict in a reserved case, is attacked, apply any remedy by which it considers that the ends of justice will be attained, even if such remedy has not been specifically de- manded by any of the parties. — New. R. P. 0. 755. 497. AflRdavits are not admissible for the purpose of showing the reasons and motives which influenced the jurors, or of establishing that the verdict rendered is not that which the jurors intended to give.—C. C. P. 4c8, 429, amended. § 2. — NEW TKiALS 498. Subject to the qualifications stated in the next follow- ing Articles, a new trial may be granted in any of the follow- ing cases : 1. When the assignment of facts is insufficient or defective; 2. When the judge has improperly admitted or rejected evi- dence; ;i. When the judge has misdirected the jury or refused to in- struct them on a matter of law, and the party complaining has duly excepted to such misdirection or refusal ; 4. When the verdict is contrary to law, or clearly against the weight of evidence ; 5. When the amount awarded is either excessive or insuffi- cient ; 6. When tho party has been taken by surprise, or when new evidence of a conclusive nature has been discovered since the Ttrial ; 7. When there has been, on the [»art of the jury or of any juror,, such misconduct as prevented a fair and judicial consideration and decision of the case ; Trial by Jury. 77 8. When a material witn< ,i v/as absent at the time of the trial 'witlioiitany fault attributable tu the party who bad summoned, him, and Ins evidence is still obtainable ; 9. When a challenge to the array or to the polls has been erroneously maintained or overruled. — C. 0. P. 426, amended. 499. The defects in the assignment of facts must be such as to prevent a trial of the ranterial issues, and it must be shown that an objection stating ihe necessary amendment was made and overruled before verdict rendered. — C. C P. 426, g I, amended ; Cannon vs. Huot, I Q. L. R. 139. 500. A new trial is not granted on the grourr", of misdirection, or of the improper admisjsion or rejection of evidence, unless some substantial prejudice has been thereby occasioned ; and, if it appears thatsuch prejudice affects apart only of the matter in controversy, the couri may direct a new trial as to such issues only.— iV^ety. C.C.P.426, §§2,3, 4 ; Eng.Ji.obG; R. P.O. 791. 501. A verdict is not considered against the weight of evi- dence unless it is one which the jury, viewing the whole of the evidence, could not reasonably find. — New. C. C. P. 426, § 13 ; Metropolitan Ry. Co. vs. Wright, 11 App. Cas. 152. 502. A new trial is granted whenever the amount awarded is so grossly excessive or insufficient that it is evident that the jurors have been influenced by improper motives or led into error.— 0. C. P. 426, § 11, amended. 503. If the amount awarded by the verdict is grossly exces- sive, the court may refuse a new trial, provided thai tiie plain- tiff agrees that it be reduced to an amount which the court con- siders not excessive.— A'ew?. C. C. P. 426 ; Belt vs. Lanes, 12 Q, B. D. 356 ; Mail Printing Co vs. Lajlnmme, 12 L. N. 33 ; Tat/lor vs. Northern Assur. Co., 35 L. C. J. 6. 504. If the amount awarded by the jury is grossly insufh- <;ienl, the court may also refuse a new trial, provided that the defendant agrees to its bsiiig increased to an amount which the court considers not insufficient. — New. JJelt vs. Lanes, 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 therefor shows : 1. That the evidence is such that, if it bad been brought 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 bad knowledge of it ; r t t 'T t i ! V 5 I \m . ■ .p. 78 Ttie Code of Civil Procedure. iS.i 3. That it could not, with reaso;>able diligence, have beei> discovered in time tu be so used ; 4. That reasonable diligence was used after the discovery of the new evidence.— iVe««. C. U. P. 426, § 16 ; H. & L., pp.'595, 596. 506. The causes mentioned in paragraphs 1, 2, 3 and 9 of Article 498 can be ascertained only by means of the minutes- of trial, and when the party has caused his objections to be entered therein.— C. C. P. 427, amended. 507. If the judgment upon the verdict has been set aside, and no further order has been given, a new trial must be had. — C^ C. V. 430, amended. §3.— DIFFKRBNT JDDGMgNT 508. A judgment / Suretyship in the Civil Code : 2. If he is not sufficient.— C. 0. P. 517. 563. The sufficiency of a surety is decided upon the docu- ments Hnd affidavits produced, without proof being ordered. — C.C.P. 618- 564. "if tha surety is accepted, the bond is drawn up and entered iiito in conformity with the judgment, and remains in the ounce of the court as part of the record in the case. — C. C.P. 519. 565. The acceptance of sureties is decided upon summarily, without any petition or writings, and tlie bond is entered into- notwithstanding oppositions or appeals, and without prejudice thereto.— C. 0. P. 520. SECTION II Accounting 566. Every judgment ordering an account must fix a delay for rendering it. — C. C. P. 521, 567. The accouri must he rendered nominately to the party entitled to it; it must be sworn to and be Hied in the office of the court within the delay fixed, together with the vouchers in support of it. The Judge may, however, upon motion, extend the delay for rendering the accounl. — C. C.P. 522, amended. 56*?. The account must contain, under separate heads, the receipts and expenditure, and close with a recapitulation of such receipts and expenditure, establishing tlie balance; whatever rf^mnins to be recovered is reserved for a separate head.— C. C. P. 523, amended. 569. Under the head of receipts rrjust be \ iaccd all suras which the accounting party has received, and all those that he ought to have received during his management. — C C. P. 524. 570. The accounting party cannot place under the bead of expenditure the cos's of the judgment ordering him to account, nnless he is authorized to do so by the court ; but he may charge under that head his travelling expenses, the attendance* of th" attorney who made up the account, the cost of preparing, presenting and verifying it, and of whatever copies thereof are required. — C. C. P. 625, amcnd>'d. ToluHtanj E.iroution of JmlinnrHts. 87 571. If the account shows an excess of receipts over expen- diture, the party to whom it is renfiered may provisionally demand execution for the balance, saving his right to contest the remainder of the account.— U. U. P. 526. 572. The party accounted to is bound to take communica- tion of the account and voucliers at tlie office of the court, and to Hie his contestations of the account, if lie contests it, within a delay of fifteen days, whicli may be extended by the judge upon application. — C. C. P. 51i7, amended. 573. Parties accounted to, wliose interests are the same, must name the same attorney ; if they do not agree in their choice, the attorney first in the ca.<«e remains attorney of record saving the right of the other parties accounted to, to employ attorneys of their own, upon payment of all costs occasioned thereby.— C. C. P. 528. 574. The accounting party has a d'»lay of six days after the filing of the contestation to file his answers ia support of his account, and the other party hag a similar delay to file his replications.— C. C. P. 529, amended. .;,575. In default of filing the con'.fstaiions, answers or replica* tions with'n the delay fixed, the party so in default is held to admit whatever is contained in the document he fails to contest.— C. C. P. 530, amended: 576. After the issues are completed 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 pn.cti- tioner or an accountant, according to its nature.- C C. P. 5:JI,. amended, 577. The judgnr.ent upon tlie account must contain a com- putatio.i of the receipts .ind expenditure, and establish tlie balance if there is any. — C. C. P. 53!^, amtiided. 578. If the defendant fails to rentier an account, the plaintiff may proceed to have one made out in the manner mentioned in Article 508.— C. C. P. 533. 1 ! SKCTIO.N' III Surrender 57S. The voluntary execution of any judgment ordering the- restitution and delivery of any movable or immovaii)le is effected, unless tiie judgment otherwise provides, by delivering the movable object or surrendering the possession of the immovable, in such a manner tliat the party entitled thereto may 8^ The Code of Civil Procedure. * t i "M U 5 II m take possession of it ; and this must iclone ia conformity with the judgment and the provisions contitincd in the title 0/ Obli- gations in the Civil Code.— U. U. P. 534. 580. The voluntary execution of a judp;ment ordering the surrender of au hypothecated immovable is effeci-ed by means of a (ieclaration of the defendant, in th'' office of the court, to the effect that he makes such surrender in comjtliHnce with the j'idgmeut, an! by liis relinquishing his possession. — C. C. P. 535. 581. When an immovable is thus surrendered, the judge, upon application by t!ie plaintiff, or by any other creditor if the jilaintiff fails to so apply, appoints a curator to the surrender, against wliora all ulterior proceedings are directed. —C. C. P. 530, amended. . ?J . The curator has aright to collect the rents, issues and pro.. 13 u e and accrued fr.nu the time of the surrender, and may even grant leases if the sale is prevented during any con- siderable time. The rents, issues and profits of the immovable surrendered are treated as realty, and are distributed in tlie same manner ai the price.— C. C. P. 537. SEOTIOX IV Tender and I'ayment into Court 583. A tender or a put ting in default to accept must describe 1he object offered ; and, if it be of money, it must contain an ■enumeration and description thereof. — C. C. P. 538. 584. Tender may be made by an authentic document, or in any other manner which admits of its being legally proved. Tender may be made in a suit by demanding record thereof and must be accompanied with payment into court. — C. C p' 539. 585. Tender mav be made at the domicile •contract— C. C. P. 540. elected in a 586. The authent'c document recoiding the tender, if there is one, nnist state the answer made by the creditor or bv the person representing him, the fact of bis being called upon to sign such answer, and of his having signed, or of his having refused or declared himself unable to sign. — C, C- P. 541 examina- tion before the judge «)r the protlionotary. of itny jiersons whom l.e considers capable of givmg information aboiitsuch matters. — j\'c«t'. Enly, hi so far as may be, to ihe cases mentioned in the two preceding Articles. If any dispute arises during the examination before the pro- tlionotary, the parlies are sent belore the judge to have it decided. — JS'eiv. 593. The costs of such examination form part of the costs of execution, unless the judge oiders otherwise. — JVetv, £nt 90 The Code of Civil Procedure. , " ' CHAPTER XXVIII PKOVISIONAL EXECUTION 594 Provisional execution may be ordered, upon application of the part}', notwithstanding anj' review or appeal, and with or without security being required, in any of the following mat- ters: 1. Actions based upon authentic acts or private «vritings ; 2. Possessory actions ; 3. Affixing and removing seals, or making inventories ; 4. Urgent repairs ; 5. Ejectment, when there is no lease, or the lease has expired or has been cancelled or annulled ; 6. Appointments of tutors, curators or other administrators, and rendering accounts ; 7. Alimentary pensions or allowances ; 8. Judgments of sequestration. — New. Ord. 16t>7, Tit. 17,. Ans. 13, 15 ; C. P. U. F. 135 ss. ; C. P. G. 315, 316. 595. Provisional execution cminot be ordered for costs, evea when they are awarded in lieu u'i damages.— iV'^cM-. C. P. C. F. 137. 596. Tf the court omits to order provisional execution, it can- not thereafter be allowed except upon reviev? or appeal. — Nev. C. P. C. F. 136. 597. The court before which the appeal is brought, whenever the application is made during term, or two judges of theOourt of Queen's Bench or of the Superior Court, according as the appeal has been taken to the Court of Queen's Bench or the Court of Review, whenever the application is made out of term,, is empowered : 1. To allow provisional execution, when it has not been al- lowed in any case wherein it lies ; 2. To refuse provisional execution, when it has been allowed in any case wherein it does not lie by law ; and, according to circumstances, to refuse or stay sich execution in other cases ; 3. To order that security be given by any party who was exempted from doing so by the court of original jurisdiction at the lime when the judgment was rendered allowing provisional execution.— iVeew. C. P. C. F. 458, 459; C. P. G. 317, 318. CHAPTER XXIX KXEMPTIONS FROM SEIZUIiB 598. The debtor may select and withdraw from seizure: 1 . The bed, bedding and bedsteads in use by him and his family ; Ej-eniptioHs from Seizure. 91: 2. The ordinary and necessary wearing apparel of himself and his family ; a. Two stoves and their pipes, ore pot-hook and its acces- Surios, one pair of andirons, one pair of tongs and one shovel ; 4. All the cooif account, titles of i^bt and ottier papers in the possession of the debtor, xcept xs mentioned in Article 641. — -New, infxirt. C. C. P. ."33. aii'-uded, .'j,")6, § 3, ,n pari II. S. 5918 ; :,1 Vic-, ch. 50, s. 4 ; 54 Vic, c. 11!, s. C. U. P. 628, in part, amcmdcd . R S. 5931 ; 51 Vic, c. 12, s. 3 ; C. C. P. 632, »n par if 5&T, ^m ' Compulsory Execution of Jiuhjmcuts. 93^ CHAPTKR XXX COMPULSORY EXKCUTION OF JL'UOMENTS 8KCTI0X I Gei'cral Provisions 600. The judgments of a court can be pnt into oxeciHion only by means ot a writ issuing in the name of the Sovereign. — C. C. P. 545, in />arf, amenmi Compulsory fLvccntion of Jmhjmenti^. 95 He may cnnge the moveable and the immoveable properly to be seized under the same writ, but he c.iniiot proceed to the sale of the immoveables until a'ter the moveable property has been discussed, saving the special provis^ions concerninfr building societie?, cases of {)ledge, and the case mentioned in Article 103^, judgments rendered for the recovery of rents constituted under the {Seigniorial Act of 1854, and judgments declaring hypothecs. Nevertheless, a subsequent writ may be noted nsan opposition for payment without again discussing the moveable property. — Nex'^ in part ; (J. C. P. 554, amended. 616- When the creditor has received part of his judgment claim, he must make mention of it on the back of the writ of execution.— C. C. P. 555, § 3 ; R. S. 5916. 616. When the property to be seized is at a distance of more than nine miles Irom the place where the writ issues, or from the office or from the domicile of the oflicer to whom the writ is addressed, such officer is, upon the written demand of the creditor or of his attorney, obliged to employ a bailiff designated by the creditor, and residing in the locality in which the movable or immoveable property is situate, to make the seizure, publica- tions and adjudication. The seizing creditor may likewise, to save costs, undertake the transmission of the documents relating to the execution, and the bailifF^must hand them over to him.— C. C. P. 555, § 4, 035, inpart^ amended; R. S. 5916. § 2.— EXF.CDTION UPON MOVEABLE PROPERTY I.— Seizure of Moveable Property. 617. In the seizure of moveable property in execution, the writ is addressed to the sheriff or a bailiti' of the district in which the writ issues, who may execute it in such district or in any other district, or is addressed to the sheriff or a bailiff of the district where the debtor's moveable property is situated, or in which the debtor has his domicile, ordering him to levy the amount of tht debt, the interest, and the costs both of the suit and of the execution.— C. C. P. 555^ §§1,2, amended; R. S. 5916. ? m\ i i i 618. The seizure cannot be made before seven o'clock in the morning, or after seven in the evening, without the leave of the judge or of the prothonotary, except in cases of fraudulent removal. It may, if necessary, be continued on the following days, upon affixing seals or placing guards,— C. C. P. 574, amended, 619. Seizur(;s cannot be made on Sundays or holidays with- out the leave of the judge or of the prothonofary, except in (M'f i r-i 4* ^ 1 T 96 The Code of Civil Procedure. lit' ■Ml. ' «|i Si! ;iii , may cases of t'raudulent removal, or where the property is found upoa- the highway. — C. C. 1*. 575, n/neii'kd. 620. If the debtor is absent, or if there is no person to open the doors of the house, cupboards, trunks, or other closed places, or in the case of refusal to open thera, the seizing officer mint draw up a minute of the fact; and thereupon the judge, or in his absence the prothonotary, may order the opening to be effected by all neces-ary means in the presenceof two witnesses, and with such force as may be required, without prejiulice [o coercive imprisonment in case of refusal, violence or other physical impediment.— C. C. 1*. 5G9, amended: R. S. ^921. 621. The officer making the seizure is bound to accept a solvent depositary offi-rcd by the debtor, and in such case he is not answerable for the acts of the depositary, if he proves that when he acce[)ted him suL-h depositary was solvent to the amount of the property intrusted to his care. — C. U. P. tGO, § 7 ; R. S. 5920. 622. The seizing officer cannot take, as guardians or deposit- aries of the things seized, his relations or conneciion-s, to the degree of cousins-german, or the judgment debtor, or his wife or children, on pain of being liable for all costs and damages All other relations, by blood or affinity, of either party be appointed.— C. C. P. SGO, §§ 8, 9, amended; R. S. 59iiO*. 623. If the moveable property has already been seized and the debtor dispossessed, any creditor making a second seizure is bound to name the same guardian, who is bound to accept, and ca-i be discharged only by the sale of the property so seized, the consent of all the seizing parties, or the order uf a judge.— C C. P. 577, amended, 624. The guardian or depositary has a right at the time of his appointment to remove the property under seizure in order to keep it in charge, antl to place guards if necessary in the place where it is. — U. C. P. 562, § I. 625- If the })er8on appointed guardian or depositary becomes, while the seizure lasts or is suspended, insufficient to be respon- sible for the property seized, the judge may authorize the appointment of another person sufficiently solvent or reliable, and may order that the property seized be placed under his care or in his possession by the sheriff or a bailiff, after a verihcation. and inventory of the whole has been made. — C. C. P. 562, § 3, amended. 626. The seizing officer may demand in advance from the party suing out ihe 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. — C. C. P. 568, 847, amended. CompuUory E.recution of Judgments. 97 627. As often as the dum so advanced is expended, he maj renew 3uch demand; and, if the amount fixed by the judge or prothonotary is not paid within the dehiy prescribed, the seizure IS discharged. — C. U. P. 568, 84H, amenaed. 628. If the seizing ofTicei* cannot find a responsible guardian or depositary, he may, after serving the minutes upon the debtor, have the things talcen away and removed to a place of safety, until he obtains .such a guardian or depositary. — ('. C. P. 5(J2, § 2), amended. 629. The seizure of moveable property is recorded by minutes made by the sheriff or his deputy, or h\ a bailiff aiitliorized by him to that effect, or by the bailiff intrusted with the writ of execution.— U. U. P. 659; U. S. .J9iy. 630. The minutes must contain : 1. Mention of the i)resent domicile of the creditor; 2. Mention of the writ of execution, 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 registered vessel, a copy of the certificate of ownership of such vessel, or of the principal contents thereof; 4. The appointment of a guardian, or the name of the deposi* tary furnished by the debtor ; 5. Mention of the day and hour when the seizure is made ; 6. The signature of the guardian or depositary, and of the "Witnesses, in the case of Article 620, or mention that they cannot sign, and the signature of the seizing officer. The debtor must also, if he is present, be called upon to sign the minutes ; and entry must be therein made as to his being so called upon, and as to his refusal or inability to do so or his absence.— C. C. P. 560, §§ 1 to 6, 10, amended; i\. S. 5920. 631. If current money is seized, mention of its kind and quantity must be made in the minutes, and it must be returned with the other moneys levied. — C. C. P. 564. 632. Thii minutes must be made and signed at least in triplicates, one of which must be given to the guardian or -depositary, and another to the debtor. — C. C. P. 501, amended, 633. If the debtor has no domicile, residence or place of business in the district in wLich the judgment is rendered, the triplicate of the minutes of seizure is left for hira at the office of the court,— U. U. P. 570, amended; il. 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 i; :i ! I ..^^. ^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 28 15 22 2.0 1.8 1.25 1.4 1.6 ^ 6" - ► V] <^ /i ^a c? e-l 'c>l '^^ .K»' ^;. y ^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) 872-4503 t/ (5 I? 9g The Code of Civil Procedure. the proceeds of the sale to be deposited in the office of th& court.— C. C. P. 872, amended. 635. Immediate notice must be given to the debtor and to the guardian or depositary, of the place, day and hour at which the moveable property will be offered for sale. If the debtor has no domicile, residence or place of business in the district in which the judgment was rendered, the notice may be addressed to him and left at the othce of the court. — CO. P. 571, amended; R. S. 5923. 636. Sffles of moveable property cannot be commenced be» fore ten o'clock in the mori>' ^ or continued after five in the afternoon .— Aew. 637. The judge may, upon tK »* plication of any interested party, allow the seiKHig oflice •> "nove the property under seizure to any other specified j. 't, so as to sell it there, if it can so be sold to greater advaniag(-. — C. C. P. 563, amended, 638. Saving the exception contained in the following Article, the sale of moveable property under seizure must be advertised by posting a notice and reading it in a loud and distinct man- ner at the door of the church of the parish where the seizure has been made, immediately after morning service on the Sun- day next after the seizure ; and, if such seizure is not made within a parish, the publication must be made at some public place in the municipality. A certificate of such publication must be annexed to the record of the execution. The sale cannot take place before the expiry of eight days, to be computed from the day of such publication. — U. C. P. 572, amended, 639. In the cities of Quebec, Montreal, Three Rivers, Sher- brooke,St. Hyacinthe and Sorel, and in the town of St. Johns, the sale of moveable property under seizure is ucvertised by a notice seating summarily the names of the parties, the nature of the effects, and the place, day and hour of sale, inserted ia French in a newspaper published in that language, and in English in a newspaper published in the English language, und if there should be but one paper in the place, or if all the papers are published in but one of such languages, then the notice must be inserted in both languages in one paper. A duplicate of such notice must be posted in the sheriff's oBice from the time of such advertisepient in a newspaper until the day of the sale. The sale cannot take place until after the expiry of eight days from the dajof such publication.— G . C. P. 573, amend' tdi R. S, 5924. VompuUorj/ Execution of Judgments. y» • 640. If the moveable property has been provisionally at tached before Judgment, it is not necessary to proceed to a verification^ but it is sufficient to give notice to the debtor, and to the guard- ian or depositary, of the place, day and hour of sale, as pre- scribed in ArticI*:? 635, and to give the notice required by Article 638 or Article 639, as the case may be.— (J. C. P. 576. 641. Debentures, promissory notes, whether nogotiHble or not, shares in corporatious and oiher instruments payable to order or to bearer, bank-notes included, may be seized like all other moveable tffecls belonging to the debtor. — U. C. P. 505, in part, amended. 642. The seizure of shares in any corporation is made by- serving such corporation with a cop3' of the writ of execution, together with a notice that all the shares held by the debtor in such corporation are placed undi r execution. A similar notice is served upon the debtor.— U. C. P. 56G„ amended. 643. If there is more than one place at which the corpor- ation may be served, the set vice hereinabove mentioned, when made elsewhere than at the place where the transfer of shares and the payment of dividends may be validly made, has no effect agamst subsequent purchasers until a sufficient time he.,\ elapsed to allow notice of the service to be transmitted from the place where it was made to the place where transfers of shares should be entered, and the corporation is bound to effect such transmission. The seizure of such shares includes all benefits and pi :fits at lached to them.— C.U. P. 507. II.— Oppositions to t)ie Seizure of Moveable Property. 644. A seizure of moveable property in execution may be contested by opposition, either by the debtor himself or by third parties.— U. U. P. 580. 645. The debtor may demand the nullity of a seizure of moveable property in execution : 1. On the ground of irregularities in the seizure, whenever they cause a prejudice ; 2. On the ground of any of the effects being exempt from seizure ; 3. On the ground of the extinction of the debt; 4. On any other ground of a nature to affect the judgment sought to 1)6 executed. Whenever the grounds relied upon by the debtor relate only to ft part of the property under seizure, or to a part of the amouut claimed, the debtor can only demand the nuliitj of the seizuro for such part.— 0. G. P. 581, amended. I . I 100 The Code of Civil Procedure. 646. Tbe execution may aUo he opposed by any party who has a right of ownership or of pledge in the properly sei/.ed. A lessor cannot, however, oppose the seizure and sale of tb«. muveable property subject to his privilege; he can exercise such privilege only upon the proceeds of the sale.— C C. P. -682. 647. Oppositions must be accompanied with an affidavit that the allegations contained in them are true, and that they arc made without intent to unjustly retard the sale, and solely with the view of obtaining justice. — C. G. P. &83, in parlf amended. 648- Oppositions are served upon the sheriff or the baililTby leaving with him the original thereof. — U. 0. P. 585, in part, ^amended, 649. The service of the opposition causes a stay of proceed- ings upon the seizure and safe ; and the officer charged with the writ of execution must forthwith return into court the •oitposition and the writ, with all proceedings thereon. if, however, the opposition is founded on grounds which only go to reduce the amount claliued, or to withdraw from seizure a {>Rrt of the effects seized, the officer charged with the writ is >ound to return it forthwith with all his proceedings thereon, and to prepare and certify a copy of the writ and of the minutes of seizure, under which he proceeds to the sale in order to satisfy tliat part of the claim which is not contested, or proceeds to sell that part of the eti'ects against which the opposition is not directed, in the same manner as if he were still charged with the original writ. The judge may. in any such case, at the instnuce of any interested party, order all proceedings to be stayed. — iVc«>. U. U. P. 583, in part, 585, in part; C. P. L. 642, § 4. 650. After the return of the opposition, the opposant may serve the seizing party or his attorney, and the other parties in the cause, with a notice that the opposition has been returned, -and must be contested within twelve days from the service of such notice. — Aew. U. C. P. 586, in part. 651. At any time after the return of the opposition and be- fore the expiry of four days from the service of the notice of such return, the judge may, upon the motion of any party, dis- miss the opposition if it is made with the intent of unjustly re- v'ardmg the sale, or order the examinHti> n of the opposant, and dismiss it after such examination. — A>?c. 652. If the parties do not file their contestations within twelve days from the service of the notice that the opposition is return- -ed, or, when the motion mentioned in the preceding Article has been filed, within six days from the judgment upon such motion, the oppoeant may obtain an entry of detiault agarinsl tkem, and, Compulsorif Execution of Judgments. I(tt is entitled, upon prodiioinfi^ a certificAte of giich entry and iiit> inscriptiun in accordance with ihe provisions of Article 531, to be relieved from the seizure, with costs against tiie judgment, debtor, unless the court orders otherwise.— A'eif. 653. If the other parties or any of them contest the opposi- tion, the contestation is subject to the same rules and delays as summary mailers.— C. C. P. 587, amended. 654. When all the publifations and advertisements required by law have been duly published and made at the lime ot a former opposition, the execution cannot be stopped bv opposi- tion, unless for reasons subsequent to the proceedings by which the sale was stopped in the tirst instance and upon a judge's order. In the districts of Quebec and Montrenl, such order must bo given bv one of ihe judges administering justice therein ; in the other districts, except those of Gaspc, Rimouski, Beauce and Chicoutimi, such order cannot be maje except by the judge who resides in the district in which the opposition is to be Hied, except in the absence of tbe judge established by the ceriiticato of the prothonotary. Such order is made only after one df^vg notice to the oppo- site party.— C. C. P. 588a, amended,- R. S. 5925 j C. C. P. CC4 j R. S. 5936. III. — Sale of .ioreable Property. 655. If there is nothing to prevent the sale of the moveable property seized, it takes place at the day, hour and place men- tioned in the notice. If the sale has been retarded by any obstacle, subsequently removed, or if there are no bidders, new notices and publications must be given. — C. C. P. 589, amended. 656. The creditor first seizing, who does not proceed witb proper diligence, cannot prevent the sale by tbe next seizing creditor.— C. C. P. 578, § 1. 657. At the time fixed for the sale, the guardian or deposit- ary is bound to produce all the effects seized which were placed- in his charge. — C. C. P. 590, amended. 658. The guardian or depositary may be condemned, even on pain of coercive imprisonment, to produce tbe properly ho took in charge, or pay the amount due the seizing creditor. He may, however, upon establishing the value of the effects, which be fails to produce, be discharged upon payment of sucb Talue.— C. C. p. 597. 659. The guardian or depositary has a right to a discharge or receipt for the effects which he produces, and the minutes of U!.- ^! k- _■■■'■ J xe ^\M 102 The Code of Civil Procedure. sale must make mention of any effects which have not been pro- duced.— U. C. P. 696. 660. The seizing officer cannot, either directly or indirectly, bid upon tlie property put up for sale, or become purchaser thereof.— U. U. P. 5;>l, amended. 661. The ofTicpr conducting the sale must make minutes thereof, specifying each article put up for sale, the names and residence of each purchaser, and the price of each purchase. — C. C. P. 592. 662. The thing seized is adjudged to the last and highest bid- der, subject to immediate payment of the price; and in default of such payment it is immediately put up again. If, however, there is only one outbidder, he must be declared purciiaser — Aew, in part. U. 0. P. 593. 663. The officer conducting the sale cannot, either directly or indirectly, receive anything beyond the purchase price. — C C P. S94, amended. 664. Unless the judgment debtor consents, the sale must not proceed beyond the amount necessary to pay the debt in prin- cipal, interest and costs. To this end the judgment debtor has a right to determine the order in which the things are to be put up for sale. — C. U. P. 505. 665. The adjudication of moveable property under execution transfers by law the ownership of the things thus adjudged. — €.C. P. 598, § 1. 666 The objects mentioned in Article 641 are sold in the same manner as the other moveable property of the debtor.— C. C.P. 505, in part. 667. In the case of seizures of shares in any corporation, the seizing otficcr is bound, within ten days after the sale, to serve such corporation in the manner mentioned in Articles 642 and €43, with a certified copy of the writ of execution, indorsing thereon a certificate designating the person to whom he adjudged the shares seized. Such purchaser thereupon bocomes a shareholder in the cor- poration, and has all the rights and obligations of one, and the officer appointed for that purpose by tfie c3rporation must make an entry to that efl'ect in the manner prescribed by law.— 0. 0. P. 598, § 2, amended. 668. Without prejudice to the recourse of the party aggrieved Against the seizing creditor and those acting in his behalf, no Compulsory Execution of Judgmente. 103 demand to annul or rescind a sale of moveable property under execution can be received ae:ainst a purchaser who ha^ paid the price, saving the case of fraud or coUusion. — C. C. P. 599, amended. 669. Immediately after the sale, the costs thereof, indndinfl^ the pay of the appointed guardian, must be taxed.— 0. 0. P. •COO, amended. IV.— Return of the Writ, and Payment anil Distribution of the Moneys levied. 670. Four days after the snle, the sheriff or bailiff pays the moneys seized or levied, after deducting the dutios thereon and taxed costs, to the seizing creditor, if no opposition for psiyment has been received ; otherwise he must return them into court, to be adjudged to such persons as ate thereto entitled. — C. U. P. «01, amended; R. S. 5926. 671. Within six days after the sale, the sheriff or the bailiff must return the writ with all his proceedings thereunder into the office of the court —iVcir. 672. When the moneys levied have been returned into court, the seizing creditor has a right to be paid in preference to all other chirographic creditors, saving the right of a prior seizing 7iarty for his costs, the cise of the insolvency of the debtor and the case of privileged claims.— C. C. P. 602, amended. 673. When the moneys are returned, and the insolvency of the debtor isallegd, the distribution of the moneys cannot ta':e place until his creditors generally have been called in. The creditors are called in upon the order of the judge, pub- lished twice in the Fvench and English languages in the Quebec Official OazHte, requiring them to file their claims within fifteen days from the date of the first insertion. The same rule applies, under similar circumstances, to all cases where moneys other than the proceeds of immovables, or moneys of which an account has been rendered into court, are to be distributed.— C C. P. 603, amended; R. S. 5927. 674. It is sufficient for the claims tosbite the names, occupa- tion and residence of the claimant, and the nature and amount of his claim. They must be accompanied with an affidavit that the sum claimed is lawfully due, and with vouchers, if there are any. — C. 0. P. 604, amended. 675. The moneys are distributed according to the order |>re- scribed in the title 0/ Privileges and Hypothecs, and the title Of Merchant Shipping, in the Civil Code, in the statutes, and in the provisions contained in this Code.— C G. P. 605, amend' ■*d. i >■ ' t- -Ik '.I' < :*. ■ f - - 104 The Code of Civil Procedure. 676. Tlie following order is observed as regards the colloca* tion of jiidiciBl costs: 1. Costs of seizure and of sale ; 2. The duty payable upon monfeys leried and paid into court ; 3. The fees of the officer receiving moneys levied or paid in ; 4. The fees upon the report of distribution ; 5. The fees of the advocate prosecuting the distribution ; 6. Costs, subs'quent to judgment, incurred in order to efToct the seizure and shlc, and according to the priority of date or of privilege wlien there are several seizing creditors; the costs ot a prior seizing party have a preference over those of a subse- quent one ; iievertl»eles8, if two or more writs of execution issue upon judgments rendered on tlje same day against the same debtor, the costs thereon are paid concurrently; 7. Costs of seals, or of inventories, when ordered by the court ; 8. Costs of suit of the seizing creditor. — C. C. P. 606, amend- ed ; R. S. 5928 ; Tansey vs. Bethune, 3 Dorion's Q. B. U. :^33. § 3.— SEIZURE BT GARNISHMENT. 677. Execution upon the moveable properly of a debtor, which is in the possession ot a third party, may, in all cases, and must, when euch third party doe? not consent to its immediate seizure, be effected by means of seizure by garnishment. The same menus must be adopted in executing upon debts due to the debtor, other than those mentioued in Article 641.— C. C.P. 612. 678. Seizure by garnishment is made by means of a writ,, issuing 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 tlie moveable property oeloDging to the debtor which is in their possession, or ot such moceys or other things as they owe him or will liave e are condemned to pay into court the amounts they acknowledge to owe.— C. C. P. 622. 695. If a garnishee declares that he has in his possession fnoveable property, the judgment orders that it shall be sold, and the garnishee must deliver it to the officer charged with telling it. If the garnishee has in his hands negotiable paper or titles of debt payable to bearer, be may be condemned to deposit them in the office of the court, or to deliver them to a nerson named by the court, according to circumstances. — C. C. P. 629. l:'l i ; i ': i m t 51 I ri IM i I I 108 The Code of Civil Procedure. 696. The proceeds of the Fale of gucli moveable property Art* afterwards paid or distributed in the same manner as other moneys levied under execution against moveable property. — C. U. P. 630. 697. In seizinor salaries or wR^eR mrntioned in Parap^raphs 10 and II of Article .^>9U, the pi^izure by frarnishment remains bindiniiC for the proportion which is scizable, so lung as the contract or engagement continues, or so long as the debtor remains in the employ of the garnishee. The other creditors who have judgments against the debtor may tile a copy of such judgments in the record ut the cause, and must give notice thereof to tiie parties interested. The prothontitnrv, after collocating the Hrat seiz-ing party for his costs, disiributes rateably among the first seizing creditor, and the creditors who have fultilled the requirements of the preceding paragruph, the sum to be divided, and determines in a summary manner upon the writ or upon a sheet annexed thereto, the nmount coming to each of the creditors. The garnishee must, on making his declaration, deposit the Bum which he owes; and if the defendant continues in his service, the garnishee must every month either renew his declar- ation in the oflBce 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 quits his service, the garnishee makes a declaration to that effect. The garnishee may, upon making his original declaration, fix the day ot the month, not later than the fifteenth, at which he will renew his declaration. The moneys seized and deposited remain in the hands of tlie prothonotary, who pays them over to the plaintiff and tiie other creditors on demand three days after they are deposited, if there are no oppositions. In other respects, the seizure of salaries is subject to the same rules as seizures by garnishment in general. — C. C. P. (a28, ahiended ; R. S. 5931. 698. Whenever, by virtue of a judgment rendered against a partner personally, a seizure by garnishment is served upon a commercial partnership to which he belong.^, the partnershi^v must, if it is not indebted to the judgment debtor in an amount suiDcient to discharge the seizure, stale in its declaration a$- garnishee, in addition to the requirements of Article 683^ the^ share of the judgment debtor in the stock and profits of th» partnership. The seizure remains binding even as to profits not earned or in process of being earned at the time of its service. Compulsory Execution of JtH\{imrnt9, 109 If, after the declaration, the partnership becomes indebted to the judgment debtor, or if it is. diasolveu, the garnishees must forthwith make a new declaration. For the purpose of rendering such seizure efTectual, the judge 4iiay order the productiun of such hooks, documents anu state- ments, allow the examination ot such witnesses, and give such other orders as he deems necessary . If the partnership fails to comply with the above rules, it becomes subiect to the same responsibility as in the case ot failure to make the original declaration. This rule does not apply to joint stock companies incorpor- ated by royal charter or by act of parliament or ot the legisla- ture. { 4.— EXKCDTION DPUN IMUOVKARI.KS I.— .Seizure of IminoveaI)lcH 6S9. The seizure of immoveables can only be made agc^mst the judgment debtor, ind he must be, or be reputed to be, in possession of the same unimo dumini. — C. C. ^. 632, in part. 700. Constituted rents representing seigniorial dues are seized anJ sold according to the formalities prescribed by Ar- ticles 5720 to 5727 cf the Revised Statutes. Exceptional provisions regulate the seizure and sale ot im- moveables for the payment of municipal taxes and assessments. — C. U. P. 632, in part, 633, in part. 701. In the case of seizure of immoveables, the writ is ad- dressed to the sheriff of the district in which the immoveablei) belonging to the judgment debtor are situate, and orders him to se'ze the immoveables of the debtor and to sell them in satisfaction of the condemnation pronounced against the latter in principal, interest and costs. — C. U. P. 633, in part, amend- ed, 631, in part. 702. The writ is executed by the sheriff himself or by one of his ofBcers. — 0. C P. 634, in part. 703. When an immoveable is situated partly in one district and partly in another, it mav be wholly seized in either of such districts.— 0. C. P. 636, amended. 704. The sheriff may, before proceeding to the seizure, exact from the party who places the writ in his hands a sum sufficient to meet the disbursements rendered necessary by the seizure And the publications.— C C. P. 647, amended. 705. Before proceeding to the seizure, the officer calls upon the debtor to declare and specify bis immoveable property , «xcept in the cases of : ■■\' ' \i 4 W -! 110 The Code of Civil Procedure. . i? 1. Immoveables belonging to a defendant having no domicile^ residence or place of busiuess in the district in whicli the immoveables are situate in whole or in part ; 2. Immoveables surrendered in a suit ; 3. Immoveables subject to hypothecs, belonging to proprie* tors who are unknown or uncertain ; 4. Immoveables subject to a right of pledge or hypothec in favour ot a building society, in proceedings consequent upon aa action instituted by such society. Upon the debtor's failure so to declare and specify, the officer may seize the property in the possession ot the debtor, at the risk and peril of the latter.— C. C. P. 637, amended. 706. The seizure of immoveables is recorded by minutes which must contain : 1. Mention of the title under which the seizure is made; 2. Mention of the debtor having been called upon, as required by the preceding Article ; 3. A description of tlie immoveables seized, indicating the city, town, village, parish or township, as well as the street, range or concession in which they are situated, and the num- ber of each immoveable, if there exists an otficial plan ot tiie locality, if not, it must mention the conterminous 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 wljich they are due, with a description as above-mentioned of the real property charged with the same. If the property to be seized consii?ts of a line of railway and its appurtenances, and a plan of such railway has not been made in accordance with Article 5668 of the Revised Statutes, it is only necessary to mention the name of sucli railway, with its terminnl points, in such a manner as to establish its identity, without stating the numbers of the immoveables through whicli it passes ; 4. Mention that the minutes are made in duplicate, and that one duplicate thereof has been delivered to the judgment debtor, in accordance with the next following Article.— C. C.P. 638, in part, amended; 57 Vic, c 48, s. 1. 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 business. If, however, the debtor has no domicile, residence or place of business in the district where the immoveables are situate, la whole or in part, the duplicate minutes may be left at the offico of the court. — Jyew, inpart. C. C. P. 63b, inpart, amended. 708. No minutes are necessary in the case of suits instituted by building societies for bringing to sale immoveables subject Compulsory Execution of Judgments. Ill to their hypothec or right of pledge, or, in the case of imraove^ ables subject to bvpotbers, belonging to prof.rietors who aro unknown or uncertain. — C. C. P. 641, amended, 907. 709. The judgment debtor, as well as the seizing creditor, may cause the ground rents and charges npon the immoveables seized to be menticnc d in the minutes ; but it is not necessary to insert mention (f their' being subject to rents established in redemption of seigr.iorial rights, and any oppositions filed for that purpose cannot retard the sale, but must be retutned by the sheriff, and no costs can be obtained thereon by the oppo> sants. — C. C P. 640, amended. 710. The seizing creditor's domicile is elected at the she- riff's ofiBce, without its being necessary to mention it in the minutes. — C. C. P. 639, amended. 711. When the sheriff has seized an immoveable upon a debtor, he cannot seize it again at the suit of another creditor, or of the same creditor for another debt, so long as the first seizure subsists ; but he is bound to note any subsequent writ of execution as an opposition for pHyment upon the first writ, and in such case the first seizure cannot be discontinued or sus- pended, except in consequence of an opposition or with the consent as well of the seizing creditor as of subsequent crcdi- tors whose writs of execution have been noted, or by an order of a judge. — C. C. P. 642, amended. 712. In the event of the seizing creditor discontinuing the seizure or receiving payment of his claim, the sheriff is bound to continue the proceedings in the name of the seizing creditor and at the coat of the judgment creditors whose writs have been noted, in order to satisfy the claims specified in thesubse* quent writs of execution, provided the seizure was made with all requisite formalities. — C. C.P. 643, amended. 713. The immoveables under seizure remain in the possession of the judgment debtor until the adjudication ; but if the eule is stopped by an opposition, the seizing creditor mny, according to circumstances and in the discretion of the judge, obtain the appointment of a seqiiestrator to receive the revenues of the immoveables. — U. U. P. 645, amended; R. S. 5932. 714. Any person who cuts timber on the property seized, or in any manner deteriorates the same, is liable to imprisonment for a term not exceeding six months, imposed by the court or by a judge out of term. — C. C- P. 646, amended. 715. From the moment that immoveables have been seized, the debtor cannot, on pain of nullity, alienate them. The alienation avails, however, if the seizure is declared null, ! ' ikii m ti It ( i 112 The Code of Civil Procedure. or if, before the day fixed for the adjudication, the purchaser or the debtor deposits with the sheritf a sum sufficiect to dis- charge 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 sheriff lo the creditors entitled to it. — C , C. P. 644. :: ' if t I II.— Advertisements and Publications 716. TheRheriff mujt insert in the Quebec Official Gazette , to the French and Knglish languages, two separate times during one month, the first publication being at least thirty da^^s before the sale, a notice stating : 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 several plaintiffs, a 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 several defendants, a designation of the one first named in the writ, with an indication that there are others. If the plaintiff or defendant is acting as a tutor, it is sufficient to state that he is acting as tutor to the minor children of the deceased person, without designating the minors by name ; 4. A designation of the immoveables or of the rents, as Ihe case may l^, as inserted in the minutes, with the cliarges therein mentioned, and also those which the seizmg creditor has requested in writing to have inserted, together with men- tion upon which of the debtors the property is seized ; 6. The day, hour and place at which the immoveables or rents will be put up for sale and adjudged. The advertisements of sheriff's sales must be printed con- secutively, and be preceded by a notice according to Schedule L in the Appendix to this Code.— C 0. P. 648. amended. 64'J ; R. S. 5933. 717. It is also the sheriff's duty : 1. When seizures are made in the cities of Quebec, Montreal, Three Rivers, Sherbiooke, St. Hyacinthe and Sorel, and in the town of St. Johns, to publish, at the latest fifteen days before the sale, a notice briefly detailing the particulars of the sale in a newspaper published in French, and in one published in English, in the locality; and, if there is only one newspaper in the localitj'j or all are published in the same language, to publish the notice m 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 contained in the above mentioned localities, 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. '**ti Compulsory Execution of Judgments. 119 |)erty seized is situated, immediately after morning service, or, if (here is no churcii, at tbe most public place in the locHlity. If ihere is no service, it is sufficient to merelv post the notice.— U. 0. P. 6506, in part, amended, 650, amended; R. S. 5934. 718. In the case of a line of railway passing through several municipalities, the notice required by* the second paras raph of the preceding Article must be given by the secretary-treasurer of each of such municipalities. ->C. C. P. 650, in part, amended ; 57 Vic, c. 48, 8. 2. 719. As soon ns tbe notice prescribed by Article 716 has been given, the sheriff must send a printed copy thereof in a registered letter to the registrar of the registration division in which the immovable under seizure is situated, who must give notice thereof to the parties interested in the manner prescribed by the Civil Code. The omission to give such notices does not invalidate tbe proceedings, but the officer in default is responsible for all damages which may result therefrom. When the seizur<$ is annulled, and the seizing creditor is con- -demned to pay the costs thereof, the expenses of the notice and of the cancellation of the notice of seizure are borne by him. — €. C. P. 650a, 650c, 650i, amended; R. S. 5934 ; CO. 2l6la to 216H. 720. After uny seizure has been released, the prothonotary must deliver a certificate of such release to any person requir- ing it.— C. C. P. 650e, amended; R. S. 5934. iii.--Suspen8ionof the Sale and Oppositions. 721. The sale can be suspended in tbe following cases only : 1. By the consent of the parties ; 2. Hy a judge's order ; 3. ^y reason of an opposition — 0. C. P. 051, in part, amended' 1. — Opposiliona to annul 722. The party whose immoveables or rents are seized may oppose the seizure or the sale thereof, in the cases and in the manner declared by Article 645. Third parties may likewise file similar oppositions when they have an actual interest therein — C 0, P. 657, amended. 2. — Oppositions to withdraw 723. Oppositions to withdraw lie in favour of third parties who claim as their property part of any immoveable or ren]t under seizure. — C C. P. 658, amended, 8 'I t . ! 5 1 ',: I J a : 114 The Code of Civil Procedure. 3. — Oppotitions to secure Charge* 724. OppositioDS to secure charges lie in favour of third par- ties ^hen an immoveable under seizure is advertised to be sold* without mention being made of any charges to which it i» subject in their favour, and from which it might be discharged bjr a sberiflPg sale.— C. C. P. 650, in part, amended. 725. Such oppositions are unnecessary, and cannot b& received : 1. For the purpose of securing servitudes ; 2. For the purpose of securing dues or rents created in th& place of seigniorial rights or of c ens et rentes — 0. C P. 659, in- part, amended. 4. — Oppositions to Charges vpon Immoveables under Seizure. 726. Any person aggrieved by reason of an immoveable being advertised as subject to a charge, which prejudices h'S claim, may file an opposition to the end that the property be not sold subject to such charge, unless good and sufficient security be given him that it will be sold at a sufficient price to ensure payment of the amount due him. This opposition may likewise be made either by the seizing creditor, or by the judgment debtor, when the mention of such charge has been made without the participation of the oppo- sant.— C. 0. P. 660. 6. — General Provisions 727. Oppositions to the seizure and sale must be accom- panied with an affidavit in accordance with the requirements of Article 647. — C. C. P. 651, in part, amended. 728. Every opposition to the seizure and sale must be served on the sheriff' by delivering to him the original thereof, at the latest on the twelfth day before that fixed for the sale. No opposition filed after this period can stop the sale, except upon a judge's order, granted on sufficient cause shown ; but if the object of the opposition is to withdraw, in whole or in party the immoveable or the rent under seizure, or to impose upon the purchaser any charge which would be destroyed by a sherifiTs sale, such opposition has the effect of an opposition for payment out of the moneys levied.— 0. C> P. 652, in part^. 654, amended. 729. The service of the opposition causes a stay of proceed- ings upon the seizure and sale, and the sheriff" is bound, savin^f the cases mentioned in the preceding Article, to return into court, within twenty-four hours, the opposition, the writ of exe- cution, and all proceediogs thereon, including a duplicate of the-- Compulsory Execution of Judgments. 11. "notice in 'he Quebec Official Gazette, and either a copy ot the notice published in the newspapers or a certificate of the oral publications, if such have been made. When the opposition is founded on grounds which only tend to reduce the amount claimed, or to withdraw from seizure a part of the immoveHbles or rents seized, the sheriff proceeds in the manner prescribed by Article 649. When the opposition relates to the first writ only, and is not based upon matters of form, the sheriff must, before returning the proceedings, prepare and certify a copy of the first writ, of the writ noted, and of the minutes of seizure, and must there- upon proceed to satisfy the writ noted, in accordance with the provisions of Article 649. The judge may, upon the demand of an interested party, in the cases mentioned in the two preceding paragraphs, order the sale to be suspended. If the opposition applies to a subsequent writ only, the- sheriff returns the writ aeainst which the opposition is directed,, and continues his proceedings upon the first vfr'ii.— New, in part. C. U. p. 651, in part, 655, 653, § 2, amended; C. P. L. 642, § 4. 730. Notwithstanding the filing of any opposition to the seizure or sale of immoveables or rents, the sheriff is boiiml to continue the publications hereinabove prescribed ; but he cannot in such case proceed with the sale without an order from the court, except in the cases mentioned in the preceding Article.— C. U. P. 653, in part, amended. 731. The proceedings upon oppositions to the seizure or sale of immoveables or rents are in other respects the same as those upon oppositions to the seizure or sale ol moveable property, — C. U. P. 661, amended. 732. Every party who opposes unsuccessfully the sale of atir immoveable or of a rent under seizure is liable towards the seizing creditor and the debtor, not only for the costs incurred upon his opposition, but also for all damages resulting there- from, including interest upon the fkmount due to the seizing creditor for the time during which the sale was stopped — C. Vj. P. 656, amended- 733. When oppositions are decided before the day fixed fon- the sale, if the seizure is not set aside, the sheriff on the day ofi sale proceeds to sell. But if the oppositions are decided after the day fixed, the sheriff, before proceeding to the sale, must insert in the Quebec Official Gazette, at the latest fifteen days before the sale, a notice in accordance with Schedule M in the Appendix, andi must, moreover, cause it to be published in conformity witii the rules contained in Articles 716 and 717. ■siM • X 116 The Code of Civil Procedure, In all such cases the sheriff must observe the conditions pre- scribed in the judgment. — C. C. P. 662, amended, G63, in part; R. S. 5935. 734. Article 654 applies to seizure in execution against immoveables.— C. C. P. 664, amended,- R. S. 5936. 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 dnys previous to the date fixed for the sale. — 0. C. P. 665, amendtd. 736. Every such bid must be in writing, and be 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 immoveable or rent bid upon ; 4. The amount offiered.—C. C. P. 668, amended. 737. Every such bid must be accompanied with an affidavit declaring that it is made in good faith and not to delay the proceedings, and, if the bidder is a creditor, stating the nature and amount of his claim. The sheriff' may receive the affidavit. — C. C. P. 666, amended^ 667, in i>art. 738. If a person bidding is not a creditor, the sheriff may, if he thinks fit, require security from such bidder, or a deposit of a sufficient sum to cover the costs incurred by the seizing cre- ditor up to the time of such bid, and the costs of a resale upon false bidding, in case it should be necessary. —U. C. P. 667, in part, amended. 739- Tiie sheriff must indorse on every such bid the date of its filing, and return it into court with his other proceedings.— 0. C. P. 669, amended. 740. The sheriff must furnish the officer by whom the sale is to be made with a list of the bids duly filed.— C. C. P. 670, amended. 741. All immoveables must be bid upon and sold at the door of the parish church of the locality where they are situated, except m the following cases : 1. Immoveables situated in a parish not civilly erected must be offered for final bidding and adjudication at the registry oQice for the registration division in which they are situated ; 2. Immoveables situated within the limits of a pariah wholly or partially contained in the Island of Montreal, and tho^e If CompuUory E.recution of Judf/mvnt'i. 117 r;.« situated elsewhere in auy city, tuwti or clii(?f-placti where the sheriif's office is kepr, or within ihe suburban limits (hanfieue) thereof, must be bid upon and sold at the sberitl's otlice ; 3. Lines of railway must be sold at the office of the sheriff charged with the writ. The judge may, upon the application of any interested party, allow the sheriff to sell the immoveables at any other specitied place, if they can there be sold to greater advantage. — New, in part. U. C. P. 671 : R. S. 5937 ; 57 Vic, c 48, s. 3. 742. The sheriff may, before proceeding to the sale, require from the seizing creditor a sum sutficient to cover the difburse- ments tiecessitated by the sale, as well as the disbursements necessitated by the seizure and publications whenever the sum deposited under Article 704 is insuflicient therefor, or whenever no sum has been required in virtue of that Article. — AV??;. 743. On the day and at the place appointed for the sale, the officer conducting the same, after reading the notice, the charges and the conditions of the sale, and the bids 6led in the sheriff s office, offers the immoveables for sale, taking as an up- set price the only bid or the highest bid tiled with the sheriff, if any have been so filed.— C. C. P. G73. 744. Unless the judgment debtor consents, the sale must not proceed beyond the amount necessary to pay the debt, in princi- pal, interest and costs. 745. The conditions of the sheriff's sale must express all those contained in Articles 746, 747, 758, 759, 779 and 780, iu the advertisements, and in any judgment affecting the dale. — C. C P. 675, amended. 746. No bid can be received unless the bidder declares his names, quality or occupation and residence. Verbal bids may be made by proxy. Minutes are taken of the bids received.— C. C. P. 674, in part, ojnended, 677. 747. Every bid implies an undertaking to buy the property at the price of such bid, subject to the condition that no higher valid bid will be taken.— C. C. P. 674, in part, amended. 748. The following 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 ; 3. The sheriff or other officer intrusted with the sale ; 4. The false bidder who has not purged his default.— iVeir, in part. CO. P. 676. f I'M' ri I H'- ; F it: .1^ m, MA 118 The Code of Civil Procedure. 749. The ofRcer conducting the sale must require from every bidder, before he receives bis bid, a deposit of a sum of money iequal to the costs then due to the seizing creditor upon the judgment and seizure, whenever the judge, in the following cases, has imposed such condition : 1. At the instance of the seizing creditor, in any case of resale upon false bidding o: whenever the sale has been stopped by an opposition ; 2. Whenever an affidavit is produced, stating that the de- ponent is credibly mformed and believes that the debtor will, with a view to retard the sale, cause the immoveable to be adjudged to some insolvent or unknown person. The advertisements need not mention such condition. — U. C. P. 678, 679, amended ; R. S. 6938, 5939. 750. In any case wherein a resale upon false bidding has taken place, tlie judge may, upon application by any interested party, order that every bidder shall be required to deposit a sum equal to one-third of the debt due to the seizing creditor, in principal, interest and costs, but not in any case exceeding four hundred dollars.— C. C P. 680, amended; R. S. 5940 ; 58 Vic., c. 47, s. I. 751. The officer proceeding to the sale may, with the consent in writing of the person who has caused the condition to be im- posed, or of his attorney, receive any Did without requiring the prescribed deposit. When the person who has caused the condition to be imposed is not the seizing creditor, the written consent of the latter or of his attorney is likewise required. — C. C. P. 681, amended. 752. If any bidder fails to deposit forthwith the amount re- quired, his bid is disregarded, and the proceedings are resumed upon the previous bid.— C. C. P. 682. 753. Immediately after adjudication, the officer proceeding to the sale is bound to refund to every bidder, except the purchaser, the amount deposited by him. The deposit made by the purchaser is retained as part of the purchase-money. — C. 0. P. 683, amended. 754. When several immoveables cannot be sold separately without disadvantage, the judge, upon the demand of any inter- ested party, may order such immoveables to be sold as a whole. — ^ew. 755. The adjudication of an immoveable cannot be made before the expiration of a quarter of an hour from the time at which it was put up for sale, but after that delay the officer, before adjudging it, must receive all other bids offered .—C. C. P. €84. Compulsory Execution of Judgments. 119 756. The property must be adjudged to the highest and last 1t»idder. Wi]6n there is only one outbidder, he is declared the purchaser. —New^inpart. U. C. P.685. 757. A person who has purchased as agent for another is 'bound to furnish the sheriff within three days with the names, •quality and residence of his principal, and evidence of his power of attorney, or a ratitication of his bid and purchase ; in default whereof he is held to have purchased in his own name. He is l:(cewise held to have purchased in his own name, if the person for whom he acted is not known, cannot be found, is notoriously insolvent, or is incapable of being purchaser. — C. C. P. 686. 758. The p chaser if bound to pay the purchase-money or the balance thereof within three days, after which delay he is bound to pay interest.— C. C. P. 687. 759. Nevertheless, the seizing creditor or any other hypo- thecary creditor, whose claim is mentioned in the certificate of hypothecs hereinafter mentioned, or who has filed an opposition in the hands of the sheriff, may, on becoming purchaser, retain the purchase-money to the extent of his claim until the judg- ment of distribution, provided he furnish the sheriff with sure- ties for all damages which may result to any party interested in the event of non-payment of such sum as the judge may order such purchaser to pay into the hands of the sheriff. — €. 0. P. 688, amended ; R. S. 5941 ; Fairbanki vs. Barlow, M.. L. R., 4 S. C. 180. 760. Upon payment by 'the purchaser of the purchase- money, -or of so much thereof as he is not entitled to retain, the sheriff is bound to give such purchaser a deed of the sale made to him containing : 1. A designation of the writ under which the sale toslc place; 2. The number of the cause, and the names and the designa- tion of the parties ; 3. A description of the immoveable sold ; and, if such im- moveable is aline of railway and its appurtenances, and an official 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 terminal points, in such a manner as •to establish its identity ; 4. A statement that all the formalities prescribed by law have 't)een observed ; 5. The time and place at which the property was adjudged ; 6. The conditions of the sale, including those mentioned ia Articles 779 and 780 ; < --r^i iff h If 120 TJie Code of Civil Procedtire. i x I 'f 7. A statement of the price at which llie property was adjudgw^ ed, and how it was paid ; 8. A couve}ance of all the rights of the judgment debtor upon the immoveable.— C. C. 1'. 689, amended; 67 Vic, c. 48, 8. 4. v.— Resale for False Bidding 761. Upon the sheriff's return that a purchaser has not pa'd the whole or a balance ot the purchase-money, or given security when he may lawfully do so. the seizing creditor may demand that the immuveable of which the purchase-money thus remains- due be resold for false bidding upon the purchaser thus in default ; and this is done by a {)etition served upon the latter with the delajs lequired for ordinary summons. If the purchaser has no domicile, residence or jlace of busi- ness in the district where the adjudication took place, the ser' vice may be made at the otfice of the court from which the seizure issued.— C. C. P. 690, amended. 762. If the seizing creditor fails to proceed against the pur- cjiaser with proper diligence, any other creditor whose claim appears upon the record, or the debtor, may dcmaud tDe resale \ but the purchaser cannot be held liable for the costs of more than one of such proceedings ; and that of the seizing creditor or, in his default, the one tirst served has preference over the others, provided it is followed up with proper diligence.— C. C. P. 691, amended. 763. 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.— C. C. P. 692, a/ncndtc?; R. S. 5942. 764. The purchaser may prevent the resale for false bidding by paying into the bands of the sheriff before such sale the amount of the purchase-money with the interest accrued there- on since the adjudication, and all costs incurred by reason of his default.— C. O.P. 694. 765. The false bidder is liable to the judgment creditors and. to the debtor for all interest, costs and damages, resulting from his failure or delay to pay the purcbase-money, and also ^r 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 judgment debtor and his creditors. — C. C.P. 69'd, amended. 766. If the price upon the resale is not sufficient to cover the amount of the first purchase with interest thereon and the costa- ComimUory Execution of Judgments. 121 incurred on the resale, the false bidder may be held, even by coercive im|)riaonment, to pay the differenc, iipon an applica- tion to tliftt effuct made bv any pariy lo the suit, in the same manner and under the same conditions as that for a resale. — C. C. P. 695. 767. The sheriff proceeds upon the writ to the sale for fHlse bidding by observing the conditions fixoJ by the judgment ordering the sale, and by conforming to the tales prescribed by Article 733.— AV?r. C. C. P. 09(3. vi.—Return of Writs of Ex.3Cution 768 When the debtor has no immoveables to seize, the sheriff must in mediately return the writ with a certihcale to timt eftiect.— C C. P. 697, in part, amended. 769. Six days after the sale the sheriff must return : 1. The writ under which he proceeded to the sale ; 2. A certificate o' his proceediogj ; 3. The minutes of seizure; 4. A copy of the advertisements, with a certificate of their publication and of the oral publications ; 5. The minutes of the bidding ; 6. The conditions of sale : 7. A statement of his fees and disbursements, taxed in con- formity with Article 776 ; 8. The certificate of hypothecs charged upon the immoveable seized, or, if such certificate has not yet been furnished, a declaration whether it will be furnished by him to the protho- notary ; 9. All oppositions and claims placed in his hands, or writs of execution which have been noted on the first writ.— C C. P. 697, in part, 698, in part, amended. 770. On the day of sale, or within four days thereafter, anr interested party may furnish the sheriff with a certificate signed by the registrar of the registration division in which the im- moveable is situate, mentioning the privileges, hypothecs and other charges affecting such immoveable, and registered 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 one obtained first after the seizure. Should the intrrested parties fail to furnish the certificate within the prescribed delay, the sheriff must, if he has sufficient moneys realized from the sale, procure it, paying its costs to the registrar, and transmit it to the protboootary either with bis return, or thereafter if he could not obtain it before such return.. 122 The Vode of Civil Procedure. When it appears by the sherifTs return that the certificate will not be furnished 'by him to the prothonotary, any iotereated party may do so, subject to the rules (governing certificates received by the sheriff.— iVe»i^. C. C. P. 699. 771. The certificate must contain : 1 . All hypothecs rppistered ii(;ainst the property, as soon as liyi'OthecH are thus registered, from the time when the V'lan and book of reference hive 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 immove- able ; 3. All anterior hypothecs oi which the registration has been renewed during that period. It must also contain tiie date of the act registered as creating or evidencing each hypothec, and the date of its registration, and of itn renewal, if it has been renewed, the names, occupation and residence of the creditor, and the nnme ol the notary or notaries before whom the act was passed, if it is notarial ; it iinist specify, when several immoveablef. are sezed, which of them is aflected by each hypothec, mentioning, as regards each hypo- thec, every partial payment registered, and the amount la prin- cipal and preserved interest which appears to be due. Hut tiie registrar must not include liypoihecs which appear by his books to have been wholly discharged or extinguisliPQ ; and, in searching for hypothecs, the registrar must not go beyond the date of a sheriffs title, or of a sale by forced licitation, or of any other sale having the effect of a sherifTs sale, or of a judg- ment of confirmation of title, with regard to the immoveable in question, and which has been registered ; except as to hypothecs which are not by such means discharged or extinguished. If there is no hypothec registered, or if all the hypothecs registered appear to have been discharged or extinguished, be must state so in his certificate. — C. C. P. 700, amended. 772. If the registrar cannot ascertain from the books and documents in his office what persons were owners of the im- moveable during the ten years which preceded the sale, he must diligently inquire of the neighbouring proprietors and other per- sons well acquainted with the property ; and such persons are bound to give him, in writing and under oath, such information as they possess. The registrar, in his certificate, must mention the information thus obtained, and see that every fact upon which his certificate is thus based is attested by two witnesses, whose affidavits, duly sworn to before him or any oth^r competent officer, are annexecl to such certificate. — 0. C. P. 701. 773. If the immoveable was, during the ten years which pre- ceded the sale, in another county or registration division, of Compulsory Execution of Judgments. 123 ^hich neitbe" the books, entries nnd documenta relatinf; to anch immoveable, nor copies thereof, have been transmitted to the registry office of the county or registration division in which the immoveable was situated at the time of the sale, the registrar states the fact in his certificate; and in every such case the sheriff must obtain, from the registrar of such other county or rugiatration division, a certificate of all hypothecs registered while the immoveable was within such county or registration division, and the latter registrar is likewise subject to the pro- visions of the two preceding Articles. — C. C. P. 702, amended. 774. After the plan and book of reference have been deposited in any registry office, in accordance with the provisions of Articles 2r«;H,2IG9, 21 76*/ and 21706 of the Civil Code, the Lieut- enant-Governor in Council may change the form of the certifi- cate of hypothecs ; and every order to that effect is published in the Quebec Oj/icial Gazette, and takes cH'ect from and after the day therein hxed, provided such day b"? not less than one month after the publication of the order.— C. C. P. 703, amended; R.S. 5943. 775. In the case of resale for false bidding, no certificate of hypothecs need be proer with the cost of the certificate of liyfiothecs ; and he must hold the balance subject to the order «f the court.— C. C. P. 705, amended ,- 55-56 Vic, c. 42, s. 2. 777. Any person, except the debtor, who has procured the certificate of hypothecs, is collocated by privilege for the amount which he justifies by claim under oath to have paid for the certificate, without any lee being allowed the prothonotary for such collocation. The claim may be contested in the ordinary manner. — Neio. VII.— Effect of SherifiF's Sales 778. The adjudication is not perf> ct until the price is paid, find then it conveys ownership from its date. — C. C. P. 706. 779. The purchaser takes the immoveable in the condition in which it is at the time of the adjudication, without regard to deterioratioaa or improvements subsequent to the seizure.— C C.P. 707. 780. The adjudication is always without any warranty as to the contents of the immoveable ; but it conveys all rights belong- !• i * IHIp il ; i f , If 124 The Code of '^'■vil v/H Procedure. ing to it wtiich the judsrraent debtor luifi^ht have exercised, and also all active servitudes attached to it even although they are not mentioned in the minutes of seizure. — U. C. P. 708. 781. A sheriff's sale discharges property from all other real rights not mentioned in the conditions of sale, except : 1 . Servitudes with which the immoveable is charged ; 2. Hypothecs resulting from the commutation of seigniorial riglits, except as io arrears accrued previously to the sale ; 3. Rights of emphyteusis, of substitution not yet open, or of customary dower not yet open, except when it appears on the face of the proceedings that there exists a prior or preferable claim.— C. C. p. 709, 710,711. 782. A purchaser who cannot obtain the delivery of the pro- perty from the judgment debtor may apply to the judge by ])etiUon, of which the debtor has received notice, and obtain an order commanding the sheriff to dispossess the debtor and put the purchaser in possession, without prejudice to the recourse of the latter against the debtor for all damages and costs result- ing from his refusal.— C 0. P. 712, amended; R. S. 5945. 783. The proceedings upon this application are the same as upon the application for a resale for false bidding — C. U. P» 713. VIII.— Vacating Sheritf 's Sales 784. Sheriff's sales may be vacated at the instance of the judgment debtor, or of any creditor or other interested person : 1. If fraud or artifice was employed, with the knowledge of the purchaser, to keep persons from blading ; 2. If the essential conditions and formalities prescribed for the sule have not been observed ; but the seizing creditor cannot vacate the sale for any want of formalities attributable to him- self or bis attorney.— C. U. P. 714, in part. 785- Sheriff^s sales may be vacated at the instance of the purchaser : 1. If he is liable to eviction by reason of some customary dower, substitution or other right from which the property is nol discharged by sheriff's sale ; 2. If the immoveable differs so much from the descriptioa given of it in the minutes of seizure, that it is to be presumed that the purchaser would not have bought bad he been aware- of the difference.— C. C. P. 714, in part- IBS- Applications under Article 784 to vacate sherifTs sale» must be m»de within the same delays as are prescribed for ■'I Compulsory Execution of Judgments. 123 ^ppeali.^g to the Court of Queen's Bench from judgments of the SuDerior Cf^*"-!.— C C. P. 716, amended'' Birard vs. Barrette 5 Ft. L. 703. 787. The application must be made in the suit hj petition, servt'd upon the seizing; party and upon all other interested parties in the suit, and is subject to the same rules and delays as ordinary suits. The party who prosecuted the seizure and sale has a preferable ri^ht to contest any such application ; and, if he fails to do so within the prescribed delays, any other party may take up the <;onte8tation ; but the purchaser cannot in any case be con- demned to pay the costs of more than one contestation. — C.C.P. 716, anitiided. 788. Grounds of nullity against a sheriffs sale mny likewise be setup by the purchttser against whom an application is made for a resale lor false bidding. — U. U. P. 717. IX.— Oppositions for Payment 789. The prothonotary must keep a register in which are entered all returns by the sheriff to writs of execution, with mention of the amounts levied, of the oppositions made to the distribution thereof, of all claims filed as well in the hands of the sheriff as in the office of the court, of all contestations and of the date of the posting and of the presentation of motions for the homologation of the report. — CC. P. 718, amendid. 790 Oppodltions for payment are necessary only for such claims as the registrar is not br d to insert in the certificate of hypothecs required by Article 771. They are not necessary for claims resulting from municipal or school taxes, or assessments for the building or repairing of churches, parsonages and churchyards; and it is sufficient that a statement of such claims, certified by the secretary-treasurer or other authorized agent of the corporation, and accompanied with the necessary vouchers, be filed in the hands of the sheriff or prothonotary. Claims for arrears o( cens et rentes ov rents constituted in their stead, may likewise be made by filing with the sheriff or prothonotary a statement thereof, under the signature of the creditor or of his agent — C. C. P. 719. 791. No costs are allowed upon oppositions for the payment of any claims mentioned in the preceding Article. — 0. C. P. 721, amended. 792. Oppositions for payment may be filed with the sheriff, if he has not yet made his return, or in the office of the court ivitbin six days after the return. 5 j V? 1 '■ ■ \ ' ' ■ ^^ 1 ■ ) \ ■ ^■i; ' #i ' '^ f ■ ' I: 1^, ':! >' 1 si n fj kit ■ ; : I 126 The Code of Civil Procedure. After such delay they can only be filed with the leave of the judge and upon such conditions as be imposes. — C. C. P. 720;, amended ; R. S. 5946. X.— Payment of the Moneys without Collocation 793. The moneys levied may,without the formality of a report of distribution, be adjuged by the protbonotarpr to the partiesv entitled to them, upon a motion to that effect, in the following, cases: 1. When no opposition for payment has been filed, and nO' claim appears by the certiticaie of hypothecs ; 2. When the proceeds do not exceed the costs of seizure ,* 3. When all the parties consent.— C. C. P. 723, 752, amended. XI.— Collocation and Distribution of Moneys 794. Between the sixth and the twelfth days after the sheriflTs return certifying thiit he has levied moneys, the prothonotary must prepare a scheme of collocation or distribution, and report the same. If, however, the sheriff has been unable to file the certificate ot hypothecs with his return, the delay above prescribed is reckoned oulv from the filing of such certificate.— C. C P. 724, amended. 795. The report of distribution must mention the nnmes and designation of the plaintiffs, defendants, opposants and claim- ants, the amount levied, the name uf the person in whose bands it is, and the filing of the certificate ot hypothecs. — C. C. P. 725, amended. 796. Each collocation must form a separate article in num- erical order, and must mention whether the claim bears upon all the moneys to be distrilmted or only upon the price of a par- ticular immoveable or part of an immoveable, the nature of the claim and the date of the title and of its registration. — C. C. P. 726. 797. The prothonotary must prepare the report of distribution in accordance with the apparent rights of the parties, as shewn by the certificate of hypothecs, the oppositions, claims and other documents forming part of the record, and in conformity with the rules contained in the Civil Code, in the titles 0/ Privileges and Hypothecs and (}f Registration of Real Rights, and witb those hereinafter declared. — C. C. P. 727, amended. 798. Law coats must be collocated in the following order : 1, Costs of the report; 2. Commisflioa on amounter deposited and tax upon the Compulsory Execution of Judgments. 12T amount levied, if any is due, and costs of seizure and sale, if thej have not been retained out of the moneys levied ; 3. The amount due under Article Til to the party who has furnished the certiticate of hypothecs ; 4. Costs incurred upon the writ of execution against immove- ables, and such as may remain due upon the discussiua of tho moveables ; 5. Costs of cancelling hypothecs, or of establishing that they are extinguished ; 6. Costs of seals, and of making any inventory required by^ law; 7. Costs incurred, either in the court below or in appeal, upon. proceedings incidental to the seizure and necessary to effect the sale of the immov(ables ; 8. Costs of suit of the seizing creditor— C. C. P. 728, amend' ed; Tamey vs. Bethune, M. L. R., 1 Q. B. 28. 799. After law costs, those claimants must be collocated in their respective order who had some right of property in the im- moveable sold, and failed to set up their rights in due time by opposition to annul, opposition to withdraw, or opposition to secure charges, or, in lieu thereof, have tiled oppositions for payment; after, however, deducting such debts as they may be bound to pay and as have become payable in consequence of the sale of the immoveable, and the costs meniioned in the preced- ing Article.— C. C. P. 729. bOO. Conditional hypothecs are collocated in the report ac- cording to their rank ; but the amounts thereof are made pay. able to subsequent ci editors whose claims are exigible, upon security being given, within the delay fixed by the judge, for the return of the money in the event of the condition being fulfilled. If there are no subsequent creditors, or if they fail to give se- curity, the amounts are made payable to the debtor upon such security being given by him. If such security is not given by the subsequent creditors or by the defendant, tlie amounts may be paid to the conditional creditors, upon their giving security to return the moneys in the event of the condition failing or becoming impossible, and pay- ing interest, when the case requires it, to such persons as the judge may order. If none of the parties furnish the requisite security, the amount of the conditional claim may be placed in the hands of a seques trator or depositary agreed upon by the narties, or, if they can- not agree, upon the choice appointe'd by toe judge. — C. C. P.730^ amended; R. S. 5947. 801' When a prior claim is undetermined or unliquidated, the prothonotary out of the disposable moneys must reserve a. ? ■ *' l! '?i' I rii 1 m k ;!' ■: h k i I •^-wii 128 The Code of Civil Procedure, sum sufficient to cover it ; and such sum remains in the shf^riff's hands until the claim is determined or liquidated, or until the judge otherwise orders. — U. C. P. 731, amended. 802. Hypothecary claims due with a term of payment become exigible in consequence of the discussion and sale of the immove< able subject to them, and are collocated. If they do not bear interest, the creditor is then collocated, and receives the amount of his cjllocation only upon givinff se* ijurity to pay interest to the subsequent creditors mentioned in the report, cr, in default of such creditors, to the debtor, until the term expires. If the creditor is collocated for a part only of his claim, he is not liable for interest towards such subsequent creditors until the full amount of his claim is completed. — C. C. P. 732, amend' ed; Barrette vs. Lallier, 5 C. S. Q. 65. 803. Claims for the capital of life-rents are determined and collocated according to Articles 1914, 1915, 1916 and 1917 of the Civil Code.— 0. C. P. 733. 804. Interest and arrears of rents preserved by registration of a deed are collocated in the same rank with such deed, up to the day on which the immoveable is adjudged. A creditor wbose claim is registered is collocated in the same rank for such taxed costs only as are incurred in the court in which lie originally obtained judgment for the recovery of his claim. His costs in appeal rank only according to the date of their registration.— U. C. P. 734. 805. In case the disposable moneys are insufficient, the pro- thonotary, if >he record does not afford him sufficient data to perform the relative valuation himself, must suspend the dis- tribution, and report the facts to the judge, in the following cases : — 1. When several immovables or pieces or larcels of land, se- parately charged with different claims, are sold for one and the same price ; 2. When a vendor's claim comes in concurrence with a build- er's privilege ; 3. When a creditor has some preferable claim upon part of an immoveable by reason of improvements or other cause. — C. r-,evd levied, or, if the contestation benefits some creditors <'Ui ■■:' against amended. of the moneys coming to such creditors. ^vcnt of the costs being adiudged against one of the i^e contesting party is still entitled to be paid them •" noneys levied, saving to the creditor who is pre- ^luch collocation, his right to demand subrogation lije party condemned to pay them. — C. C- P. 745, > 817. When the contestation of the report or of a collocated claim is maintained, it avails for the benefit of the mass of the Compulsory Execution of Judgments. 181 \V formed, or of thfe adjudication being set aside, or of the eviction of the buyer or his representatives by reason of any right from which the property was not discharged by the sale, whatever sums have been unduly paid must be returned to the sheriff, and the parties are bound to pay back such moneys upon an order from the court to that effect.— C. C. P. 762. SECTION IV Arrest in Civil Matters and Coercive Imprisonment 832. Coercive imprisonment under a judgment rendered in a civil action is not allowed except against the persons and in the cases specified in the following Articles — C. C. 2271. 833- The persons liable to coercive imprisonment are: 1. Tutors, curators and trustees, for whatever is due by reason of their administration to those whom they represented ; 2. Any person indebted as sequestrator, guardian or deposit^ ary, sheriff, coroner, bailiff, or other officer having charge of moneys or other things under juditial authority ; 3. Any person indebted as judicial surety, or for the purchase of property or effects, moveable or immoveable, sold in execu- tion of the judgment of a court; 4. Any person condemned by a judgment awarding damages for personal wrongs, in a sum of fifty dollars or upwards ; 5. Any person condemned by a judgment awarding damages under Articles 2054 and 2055 of the Civil Code, la a sum of fifty dollars or upwards ; ■ 6. Institutes under a substitution, executors or admin'stra. tors, tutors, curators and trustees, for the damages occasioned by their frauds in making investments, or for damages arising from the investments having been made by them otherwise than as provided in Article 98Io of the Civil Code, or than as pre- 'scribed in the will or «)ther instn.ment respecting the property administered.— C. C. 2272, amended; R. S. 5852. 834. Coercive imprisonment may also be ordered for con> tempt of any process or order of the court or of a Judge, or for resistance to such process or order, or for any evasion of any 134 The Code of Civil Procedure. \ „ J. such judgment or order, by preventing or obstnictinp: Ihe seiz- ure or sale of property in execution of such judgment or order. In such cases the term of imprisonment cannot exceed one year,but may be repeatedly inflicted until the process or order is obeyed.— iVet/', in part. C. C 2273 j C. U. P. 782. 835. Except in the cases mentioned in the two preceding Ar- ticles, the following persons cannot he arrested or imprisoned by reason of any dfbt or cause of civil action ; 1. Priests or ministers of any relijjious denomination what- ever ; 2. Persons of the age of seventy years or upwards ; 3. Womon.— C. C. 2276, amended. 836. Coercive imprisonment cannot be granted in the cases mentioned in Paragraphs 1, 4, 5 and (J of Article S3:{ until after the expiration of throe months from the service upon the defen- dant of the judgment establishing the balance or awarding dam- ages —iVm-, in part. C. C. P. 783. 837. Coercive imprisonment can be ordered only undor a spe- cial rule granted by the court, alter personal notice to the party liable. If the latter fraudulently evades service, (he judge may, upon a return to that ettect, prescribe whatever mode of service he deems proper. In the case of Article 8.34, and in all other cases in vacation, ihe judge may exercise all the powers of the court, and order the defendant to be imprisoned.— C. C. P. in part. 781, amended, 782, 838. Coercive imprisonment can be executed only in virtue of a writ or order from the court or judge, which is addressed to the same officers, and is clothed with the same formalities, and contains the same matters of recital as writs of execution. — C. 0. P. 787. 839. Coercive imprisonment is effected by arresting the per- son against whom it is directed, and placing him in the custody of the keeper of the common gaol ot the district in which the writ issued. If there is no gaol in the district, he must be imprisoned in the nearest gaol.— C. C. P. 789. 840. The person condemned cannot, by giving bail, obtain his provisional, release from confinement.— iVieu;. 841. The debtor cannot be arrested : 1. On a Don-juridical day ; 2. At any time other than that prescribed for service of sumr- mons; Conipidmru UrcnttUm of Judgments. 1.15 3. In a {ilace of public wursliip, litiring divine service ; 4. During the sittings of the court or of a judge, or before any privileged tribunal. — U. C. I*. 784, 785, amended. 842' The pudge may nevertheless order the arrest to be made on a non-jundical day or at any tiinf, if Iht* defendant is showa to be acting in such a manner as to escape it. — C. C P. Tbi'i, amended. 843. Any person thus imprisoned may, upon petition to a judge, served upon tiie o[)p()sito party, aid accompanied with an affidavit that he is not worth hfty dollaig, obtain an order com- manding tlje creditor to pay him, a'j an alimentary allowance during the period of his imprisontnent, a .sum not less than sov- enty cents and not more than one dollar per week. — C. 0. I*. 790. 844. If, however, the debtor afterwatds becomes owner of property exceeding in value the nmoimt ot tifiy dollars, the cre- ditor may be relieved from pacing the allowance. — C. U. P. 7'JI. 845. The debtor mav have the order for imprisonment vuoat. ed by reason of the extinction of the debt, or of any other cause of a nature to affect the judgment granting the imprisonment. — New. C. C. P. 792. 846. The debtor may obtain his liberation : 1. If the formalities prescribed for theexecutioi of the judg- ment have not been observed; 2. Bv paying into the hands of the sheriff, or of the prothono- tary, tl e amount of the condemnation, in principal, interest an I costs ; 3. With the consent of, or by a release from, the creditor ; 4. Upon the failure of the creditor to pay in advance into tlie hands of the gaoler the alimentary allowance ; 5. By the abandonment of his property, except in the case pro- vided for by Article 834 ; 6. If he has completed his seventieth year, except in the cases stated in Articles 833 and !<34.— U. C. P. 79.3, amended. 847. The imprisonment maybe vacated, or the liberation ordered, by the judge, upon application, of which notice must be given to the creditor.— 0. 0. P. 794, amended. 848. When the debtor has been liberated by reason of default of payment of the alimentary allowance, he is no longer liable to coercive imprisonment for the same debt. — C. C. P. 795. 849. Abandonments of property conseqaent upon coercive imprisonment are governed by the rules contained in Articles 1 l!j i 136 The Code of Civil Procedure. 864 to 892, incltiaivelv, except in so far as special provisions are hereinafter contained. — New. 850. Tlie abandonment is made by filing the declaration and the statement in theofficeoftlieSuperior Court for the district in which the order for coercive imprisonment was granted.— iyiser. 851. After the appointment of tlie curator, the record of the proceedings upon the abandonment is transmitted to the pro- tbonotary of the Superior Court for the district where the debt- or has bis place of business, or, in default of such place, where be is domiciled. Nevertheless, if the debtor has no place of business or dom- icile in the Province, tlie record remains in the office of tlie court where the Hbandonn.ent is male. — C. C- P. 768, last para, ffrophj amended; R. S. 5956. 852. The statement may, apart from the cases mentioned in Article 885, be contested by reason of any secretion by the debt- or within the year immediately preceding the institution of the suit conspquent upoa which the < rder for coercive imprisonment was grunted, or since, of any part of his property with intent to defraud liis creditors. — New. CHAPTEIl XXXI ABANDONMENT OP PROPERTY 853. The following persons may make a judicial abandon, ment of their property for the benefit of their creditors ; 1 A debtor who has been arrested upon Capias ad Respon.. dendum, as provided in the chapter thereon ; 2. A trader who has ceased his payments, and upon whom a demand of abandonment has been made by any creditor whose claim is unsecured for a sum of two hundred dollars or upwards. — C. C. P. 763, 763a, amended; R. S. 5952, 5953. 854. The demand required by Paragraph 2 of the preceding Article must be signed by the creditor or by his agent specially authorized in that behalf; and in the case of a corporation, by its president, general manager, or local agent for the district where the abandonment should be made, or by the specially authorized agent of such corporation. Any demand made by virtue of a special power of attorney must mention the ttkCt.-'New. 855. The service of the demand on a person in the Province is subject to the same rules as ordinary summons. — New. 856. The demand must be filed at the office of the court, together with a claim under oath accompaDied by vouchers, Abandonment of Property. 137 «nd the special power of attorney, if any, under which the demnnd has been made.— C. U. I*. 763<», U part, amended! R. S. 5M3 ; 55-5G Vic, c. 43, s. 1. 857. The demand may be contested by petition, which must be filed within two days after ti»e service of the demand, and ■be served upon the demanding pa'tv as soon aa possible. The contesting party mav, within the anme delay, file a motion to stay the proceedings until a power of attorney or security for costs is furnished by the party who made the 5-56 Vic, c 43, s. 4. 867. The judge must appoint, as curator and inspector.^, 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 between them, as he thinks proper. — C. C. P. 768, in part; R. S. 5956 ; 55-56 Vic, c. 43, s. 4. Ahandotttncnt of Property. IliD 868. The jiidpe mny also appoint a guardian and a curator in any of the following cases : 1. When a cflpias cannot be executed by reason of th& absence of the defendant, or because lie 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 womnn who is ii public trader, and has not be^n complied with. — C. C. P. 780, in part, amended, 763^< ; R. S. 5965 j .5J-fi6 Vic, c. 43, s. 1. 869. Such appointii.cnt is made on the petition of the plaintiff or of a creditor whose claim is unsecured for a sum of two hundred dollars or upwards. The powers and obligations of the i)rovi3ional guardian an '. 1 i I ' :. 1 i ' .1 140 lit I \ ' ; 1 i- i .1 \\ \'l The Code of Civil Procedure. 872. The curator must make his appointment known by an advertisement in the Quehec Official (Jazede, and by a regis- tered notice posted to the address of each creditor. In such notice the curator cali^ upon the creditors to file their sworn claims with him witiiin a delay of thirty days.— C. C. P. 770, amended ; R. S. 5958. 873. If subsequently to the 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 abandonment being made, the curator takes possession of such property, Hud proceeds to the sale and -distribution of the moneys as in ordinary cases ; but is bound to reimburse the expenses incurred by any creditor through whose dilifjence the property is rendered available. Such demand may be made by the curator, with the author- ization of the inspectors, or by any creditor competent to demand an abandonment. — New. 874. The curator appointed may be required to give security, the amount whereof is tixed by the judge. The security mav be given in favour of the creditors of the debtor generally without mentioning their names. The judge may, whenever it becomes neces-ary, appoint a curator ad hoc to enforce any such bond against the parties liable. — Neio, in part. C. C. P. 770a, in part ; R. S. 5959. 875. The curator is subject to the summary jurisdiction of the judge.— C. C. P. 770a, in part; R. S. 5959. 876. Any property not belonging to the debtor, which is m the curator's possession by virtue of the abandonment, may be recovered by the person thereto entitled, upon a petition to the judge. — Xew. 877. The curator may, with the leave of the judge, upon the Advice of the creditors or inspectors, exercise all the rights of action of the debtor and all the actions possessed by the mass of the creditors. — 0. C. P. 772, in part, amended; R. S. 5960. 878. The curator may sell the moveable property of the debtor in the manner indicated by the judge, upon the advice of the parties interested or ot the inspectors. — 0. 0. P. 772, in part, amended; R.S. 5960. 879. Upon the demand of the curator authorized by the cre- ditors or by the inspectors, or of an hypothecary creditor, of which demands sufficient notice must be given to the debtor, .the judge may authorize or command the curator to issue his warrant, addressed to the sheriff competent to act under Articles Abandonment of Property. Ul 701 and 703, requiring the latter to seize and sell the immove- ables of the debtor. The sheriff executes such warrant without making any ser- Tice upon the debtor, but by otherwise observing the same rules^ as in the case of an execution against immoveables ; and all proceedings subsequent to the issue of the warrant up to the distribution of the proceeds of the sale are had in the Superior Court. The moneys remain in the bands of the sheriff, who pays them to the parties thereto entitled under dividend-sheets prepared in accordance with the next following Article. — New, in part. C. C. P. 772, § 4, amended; R. S. 5960 ; 52 Vic, c. 51, s. 1. 880. The moneys realized by the curator or by the sherifiF from the property of the debtor must be distributed b^' the curator among the creditors by means of dividend-sheets pre- pared after the expiration of the delays to file creditors' claira.^. Notice of their preparation must be given by an advertisement in the Quebec Official Gazette. A copy of the divicend-sheets, with a notice of the date at which they are payable, must also be posted by registered letter to the address of each of the creditors who have filed their claims or whose names appear in the statement. The dividend-sheetsjiare payable fifteen days after the observ- ance of these formalities. — C C. P. 772a, in part, amended; R. S. 5901 ; 53 Vic, c CO, s. 1 ; 54 Vic, c 41, s. 2. 881. The claims or dividends may be contested by any pa 'y interested, or by the curator at the expense of the estate if he is so instructed by the inspectors. The contestation tor such purpose is filed with the curator, who is bound to transmit it immediately to the prothonotary of the 'Superior Court for the district in which the proceedings upon the abandonment are then deposited, or for sucli other district as the parlies interested in the contestation may agree upon; and the contestation is proceeded with and decided sum- marily by the judge. The judge may allow the payment, in whole or in part, of any claims or dividends which are not contested, upon being satis- fied that a sufficient sum is retained to meet the contestation. — .Vu', in part. C. C. P. 772a, in part^ amended; R. S. 5961 ; 53 \ ■., c. 60, 3 1 ; 54 Vic , c. 41, 3. 2. S82. 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 appear before the judge or the pro- thonotary, and examine him on oath concerning the statement and the condition of his affairs — New. C. C. P. 775. 883. Upon application by any creditor at any time after the filing of the statement, or by the curator with the auihorizatioa Hi i l 112 The Code of Civil Procedure. of the inspectors, the judge may order llie production of any book or document relating to the matters mentionpd in the pre- ceding Article, and the examination of the consort of the debtor and of any other persons whom he deems capftble of furnishing information in regard to such matters.— A^ew, C. C. P. 7726, in part ; 55-56 Vic, c. 43, s. 5. 884. The rules relating to the summoning and examination ot witnesses and the taking of evidence govern cases provided fo" in tiie two preceding Articles, in so far as they apply. Any ptTSoii summoned who refuses to appear or to answer, or to produce any book or document, may be cond^^mned by the judge to imprisonment for a term not exceeding one year. If any dispute arises during the examination, the parties are sent befors tiie judge to have it decided.— New. C.C.P. 7726, m p.irt, 7f6, in pari; 55-56 Vic, c. 43, s. 5. 885. The curator, authorized by tho inspectors, or any cre- ditor, may contest the statement, by reason : 1. Of the fraudulent omission tomeution property jf the value of one Imudred dollars ; 2. Of fraudulent misrepresentations 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 immediately precediuj? the filing of tlie statement, or since, ot any portion of iiis property, witli intent to detraud hU creditors. — C. C. P. 773, injjart, amended; R. S. 5062 ; 55-50 Vic., c 13, s. 6. 886. The contestation of the statement must be made within four months from the day on which tlie advertisement of tlie curator's appointment appears in the QmUec Oj)irial Uazelte. — New. 0. C. P. 773, in part; R. S. 59G2. 887. The contesting party is also bound, within the same 'delay, to prove his allegations by all legal means. The judge may, however, prolong the delay for making such proof, but not beyimd two montli.s. The judge may, when satisfied that the delny is due to the fault of the debtor, allow, from time to time, a further delay of two months. — New, in part. C. C. P, 774, amended. 888. If the contesting party establishes any one of tho offences mentioned in Article 885, the judge may condemn the debtor to be imprisoned tor a terra not e.Kceeding one year. The rules contained in Articles 838, 839, 840, 841 and 842 apply, in so far as may be, to proceedings in execution of the condemnation. - R. S; 5963. •New, in part. C. C. P. 776, in part, amended ; Ahandonmcnt of Property. 143 889. If the statement is not contested within the required lion is made must be satisfied that the allegations of the affida-* Titaresutficient.— iV«u;. C. S. L. 0., c. 87, s. 1. 10 116 The Code of Civil Procedure. 904. The writ is signed by the issuing officer ; it must bear au indorsement stating the names of the r)crson who made the aifidavit, the amount for which the capia.^t issued, and, in the case of Article 899, the amount of the bail Hxed by the judge. — C. C. P. 807, injjarl, 803, amended. 905. The writ is addressed in the manner prescribed by Arti- cle 601.— C. C. P. 809, 810, amended; R. S. 59(>7. SECTION II Execution of the C apian 906. If the writ of capias is addressed to the sheriff, he is bound to execute it or cause it to be executed by his officers. — C.C.P. 817. 907. If the writ of capias is addressed to a bailiff, he arrests the defendant and delivers him over, together with tlie writ, to the sheriff, who thereupon becomes responsible for liie defend- ant.— C. C. P. 816, amended. 908. The sheriff is bound to keep the defendant in the com- mon gaol of tlie district until the hitter gives security or is re- leased from confinement. — C, G. P. 818, amended. 909. It is sufficient to leave a copy of the declaratiun either with the defendant, or at tlie office of the court, within three davs after the service of the writ. Within the same delay, a copy of the affidavit must be served upon the defendant, or left at the office of the court part. C. C. P. 804 New, in SKCTION III Release upon Bail 910. Before the last day of the delay allowed for appearance, a de'endant arrested upon capias may obtain his provisional re lease from confinement by giving good and sufficient sureties to the sheriff, to the satisfaction of the latter, that he will pay the amount of the judgment that may be rendered upon the de- mand, in principal, inteiest and costs, or, in the case of Article 899, the amount of the judgment to the extent of the sum fixed by the judge, should he fail either to give bail pursuant to Arti- cle 913 within ten days after the day upon which he must ap- p3ar, or to surrender himself within such delay into the custody of the sheriff. The sureties offered must, if the plaintiff or the sheriff so re- quires, justify their sufficiency on oath, but need not justify oa real estate. —NetOf in part. C. C. P. 928, amended. Capias ad Respondendum. 14T f '' 911. The sheriff is in such case responsible only for the suf- ficiency of the sureties at the time when the bail was given. — C. C'.P. 829. 912. He may free himself from any further liability by offar in^ an a-^signment of the bail-bond taken by him. This assignment may be effected by simply indorsing bis name on the bail-bond. — C C. P. 830, amended. 913. The defendant may obtain his release from confinement upon giving good and sufficient sureties, to thi satisfaction of the judge or prothonotary, that he will mike an abandonment of his properly for the benefit of his creditors within thirty days after the rendering of judgment maintaining the capias, and also that he will surrender himself into Mie custody of the sheriff, when required to do so by an order of the judge, within thirty days after service ot such order upon him or his sureties, and that, in default of such abandonment and surrender, or of either, such sureties will pay to the plaintiff the amount of the judgment in principal, interest and costs, or, in the case of Article 899, the amount of the judgment to the extent of the sum fixed by the judge.— C. C. P. 776, § 2, 825, in part, amenied. 914. The release may be obtained in the manner prescribed by the preceding Article at any time before judgment. — C. C . P. . 825, in part. 915. Such bail is offered after one day's notice, co.itainine a description of the sureties proposi'd, served upon the plaintiff or his attorney. — C. C. P. 826, amended. 916. The sureties offered must, if the plaintiff so requires, justily their sufficiency on oath, but need not justify on real estate. — C C P. 827, J^rench version. 917. The sureties or any of them may themselves arrest the defendant and deliver him to the sheriff; or may obtain with- out notice, from the prothonotary, an order commanding the sheriff or a bailiff to make the arrest. The execution of such order is governed by the rules contain- ed in Articles 906, 907 and 906.— C. C. P. 831, in part, amended. 918. When the sureties have themselves arrested the defend ant, the sheriff is not bound to receive him without a written re- quisition, signed by the sureties or by one of them, or by their authorized attorney. The requisition must contain the title of the court, the names ot 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 certi6cate of such surrender. — C. C. P. 832, amended. \ 1 • ' t n i it |B 1 '- 1 '^9b i<^B i 148 The Code of Cicil Procedure. 8BCTI0S IV Contestation of the Capias 919. Upon a petition presented to a judge, the defendant m&y have the capias quashed in the following cases : 1. Whenever he shows that the allegations of the affidavit upon which the capias is founded are insufficient ; 2. Whenever he shows that he is exempt from arrest • 3. Whenever the plaintiff fails to establish the truth of the essential allegations of the affidavit. — C. C. P. 819, amended. 920. In order to decide upon this incidental proceeding, the judge may order the ipimediate 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 return would otherwise have been made. — C. C. P. 820, amended. 921. If the contestation is merely as to the sufficiency of the alleprations of the affidavit, the judge may dispose of it after hearing the parties. — 0. G. P. 821, in part. 922. If the contestation is founded upon the falsity of the allegations, or upon the defendant's being exempt from arrest, issue must bejomedupon 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. — C C P. 821, in part, amended. 923. A defendant whose application to be released from con- finement is rejected may appeal to the Court of Review or to the Court of Queen's Beach. — C C. P. 822, amended. 924. If the court or the judge quashes the capias, the plain* tiff may obtain a suspension of the judgment by declaring im- mediately that he intends to take the decision to review or to appeal. In the former case, he must serve the inscription and deposit 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 delay, and give security in the ordinary way. If the plaintiff is entitled to appeal from the judgment in^ review, he must immediately declare bis intention of doing so, file the inscription in appeal before the expiry of the next juridi- cal day after the rendeiingof judgment in review, and give security in the ordinary way. If the plaintiff fails to comply with these formalities, the defendant is reU ased.— 0. C. P. 823, amended! 64Vic., c. 41^ 8.3.. Capias ad Kespondendum» 149 SECTION V Hf Effect of the Capias 925. Upon a petition by the rilaintift', the debtor agninst ■whom a capias has been maintainea, and who has been released upon bail, may be condemned by the court to imprisonment for an indeterminate lime. The order decreeinjf the imprisonment may be rendered as soon as judgment has been pronounced maintaining the capias, but it is executory only thirty days a' r its service. In other respects, it is applied for, contested and executed in the same manner as coercive imprisonment. — New. U.C'.P. 776, in part. 926. Saving the responsibility incurred by the sureties when- ever the defendant has not made an abandonment of his pro- perty within thirty days after judgment maintaining the capias, the debtor may malce such abandonment at any time. — Neio^ in part. C. C. P. 766, § 1 ; R. S. 5963. 927. Abandonments consequent upon capias are governed by the rules contained in Articles 854 to 892, inclusively, except in so far as special provisions are contained in this Section. — New. 928. The abandonment is made by filing the declaration and •the statement in the office of the Superior Court for the district in which the capias issued. — C. C. P. 764, in part, amended ; R. S. 5954. 929. After the appointment of the curator, the record of the proceedings upon the abandonment is transmitted to the pro- thonotary of the Superior Court for the district where the debtor has bis place of business, or, in default of such place, where be is domiciled. Nevertheless, if the debtor has no place of business or domicile in the Province, the record remains in the office of the court where the abandonment is made. — New, in part. C C. P. 768, 171 part, amended ; R. S. 5956. 930. The statement may, apart from the cases mentioned in Article 8S5,be contested by reason of any secretion which pre- ceded the capias and was the cause of it being maintained, im- less the things secreted are included in the abandonment ; and if it is proved that such things are not therein included, the debtor is subject to the penalty imposed by Article 888. — New, ■in part. 0, C. P. 773, in part, amended. •: t .^ll;l' iliia ; ( : 150 The Code of Civil Procchnc CHAPTKR XXXrV ATTACHMENT nKFOKB JUrxsMENT SECTION I Simple Attachment 931. A creditor may, before obtaining j'i(le;iient, procure a writ to attncli tlie jfoods and effects of his debtor, in any case wherein the defendant is personally indebted to the plaintiff in a sum exceeding five dollars : 1. In the case of the dernier ^guipeur ; 2. When the defendant : a. Is immediately about to leave the Province with intent to defraud his creditors in general or the plaintiff in particular, and the plaintiff will thereby be deprived of his 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 general or the plaintiff in particular, and the plaintiff will thereby be deprived of his recourse against the defendant ; or c. Is a trader who ha? ceased his payments, and has refused to make an abandonment of his property for the benefit of his creditors, although duly required to do so. — C. C. P. 834, amend- ed ; R. S. 5970. 932. The writ of simple attachment is addressed and ex- ecuted in the mannfr prescribed by Article 601. It commands the sheriff or bailiff to attach the moveable property of the defendaut, and to summon the latter to anpear aud answer the demand and to hear the attachment declared valid.— C. C. P. 836, in part, 840, in part, amended ; R. S. 5971. 933. The writ is obtained upon an affidavit of the plaintiff, hia book keeper, clerk, or legal attorney, setting forth, in the case of the derwer ^quipeur, the existence of the required in- debtedness, and in other cases, besides the required indebted- ness, the existence of any one or more of the other grounds for which attachment before judgment lies. — ^ew. U. C. P. 834, in part; R. S. 5970. 934. The writ is issued by the prothonotary or by the clerk of the Circuit Court, as the case maybe, and is clothed with the formalities of ordinary summons. It may also be issued for the Superior Court, by the clerk of the Circuit Court, who in such case actsasan officer of the Superior Court, and draws up the writ as though it were issued by the prothonotary.— C. 0. P. 838, 839, awcrarferf, 840, in part. •i i! AHiirhnn ill lirfnrc Jinhjmrnt. IM 11 !■ 935. Tlio seizure of tho projM'i'y of the defendant nnd ilio nomination and powers oFj^imrdians and depoaitariea are sub- ject to the rules governing the execution of judjrmenis. The seizinf? oflicer may make the seizure in another tlistrict it the debtor lias conveyed hi.s property there or has withdrawn there himself. — 0. C. I'. 841, H5l, amrn Inl. 936. A copy of the writ of attachment must be served upon the defendant* as soon as the seizure ii corai'leted.— C C. P. 85Q, in part. 937. If the defendant is absent from th" Province, or concoaU himself so a3 to prevent the service of the writ of attachment or of the minutes of seizure, tlie jud^e may, upon a return to that effect, prescribe the method of service. — C. C. P. 832, amended. 938. A defendant whose effects have been seized may have them restored to him by the seizing officer with!? three days from the service of the minutes of seizure : 1. By depositing with the seizing officer the avnount indorsed on the writ, together with interest and costs, or such amount only, if it is for unliquidated 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 indorsed upon the writ, with interest and costs, or to such amount only if it is for unliquidated damages, that 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. — C. C. P. 85;^, amended. 939. 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 899, 900, 901, 903. 904, 909, and 919 to 924, inclusively.— iVtfjt;. U. C. P. 835, 837, 854. SECTION II Attachment by Garnishment 940. fn all the cases where a writ of simple attachment may be granted, a creditor may also attach any moveable property belonging to his debtor which may be in the hands of third persons, and also whatever sums they may owe him. — 0. C P. 855, amended. 941. This attachment ia effected by means of a writ addressed and executed in the manner provided by Article 601, command- ing the garnishees not to dispossess themselves of the moveable property belonging to the debtor which is in their possession, illJ! 152 The Code of Civil Procedure. '■?, rA and of sucb moneys or other things as they owe him or will have to pay him, until the court has pronounced upon the matter, and ordering them to appear on a day and at an hour fixed to declare under oath what property they have in their possession belonging to the defendant, and what sums of money or other things they owe him or will have to pay him, and 8 immoning the defendant to appear on the day fixed and answer the demand of the plaintiff and to hear the attachment declared valid. In seizing salaries and wages, the writ must also state the defendant's place of residence, and the nature and place of his occupation. — New, in }>art. C. C. P. 856, 857, amended^ 8G0 : R. S. 5972. 942. The writ is clothed with all the formalities required for ordinary summon?, and is subject to the provisions ot Articles 899, 900, 90;, 903, 904, 909, 93J and 934, in so far as they can apply.— CC. P. 859, 859. 943. The provisions contained in Articles C79, 680, 682, 683, 08 1, 685, (386, 687, 688, 690, 691, 692, 693, 694, 695, 696, 697 and 698 are also api)licab!e to attachment by garnishment. — C. C. P. 860, 862, 863, 864, amended. 944. If the declaration of the garnishee is not cjntestod, the judge, in rendering judgment upon the principal demand, adjudicates also upon the attachment and the declaration of tha garnishee.— C. C.P. 861. 945. The contestation of the attachment by the defendant, and any appeal from the judgment upon the petition to quash, are governed by the rules contained in Articles 919 to 924 in* clasivcly. — C. U. V . Mb , amended. CHAPTER XXXV o ATTACHMENT IN BKVENDICATIOX 946. Whoever has a right to revendicate moveable property may obtain a writ fur the purpose of having it attached, upon production of an affidavit setting forth his right and describing 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, the institute in substitutions, and the substitute.— C G. P. 866. 947. The writ of attachment in revendication orders the seizure of the effects revendicated, and that they be placed in the hands of guardians until judgment is rendered upon the revendication. The name of the person upon whose affidavit the writ issues is indorsed upon the writ.--U. 0. P. 867. Attachment for Rent. 153 948. The formalities prescribed in Articles 909, 932, 934, 935 and 936 are observed in attacliment in reveDdicatioQ in so far as thej can apply.— U. C. P. 868, amended^ 872. 949. The defendant raay have the eflFects returned into his possession, upon giving good and sutticicnt sureties that he will produce them when required, which he is in such case bound to do in the same manner as a judicial sequestrator. Nevertheless, the judge may, according to circumstances, grant possession of the effects to the plaintiff, subject to the same conditions. — 0. 0. P, 869, amended. 950. Before the effects are delivered to the party applying for them, the other party may require an inventory thereof to be made, establishing the condition of the effects, their descrip- tion and their value, in order to settle the amount ot the security to be given, which is done by experts named in the ordinary course of procedure. — U, C. P. 870. 951. If neither of the parties applies for the effects seized, they remain in the custody of the guardian appointed ; or, at the request of either of the parties, the judge may, if they are of a nature to produce fruits, order them to be placed in tue hands of a sequestrator.— C. C. P. 871. CHAPTER XXXVI ATTACHMENT FOR RENT 952. The owner or lessor mav cause the effects and fruits in -or upon the house, premises or lands leased, and subject to his privilege, to be seized for the rent, farm dues, or other sums due in virtue of the lease.— C. C. I*. 873, in part, amended ; R. S. 5973. 953. He may likewi?e follow and seize elsewhere, even for amounts not yet due, the moveable efTecis which vere in the house or premises leased, when they have been removed without his consent; but he must do so within eight days after their removal. An attachment in recaption must be served upon the new- lessor, who must also be summoned to show cause against its execution.— C. C. P. 873, in part, amended; R.S. 5973. 954. The provisions contained in Article 935, as well as those contained in Article 909, respecting the service of the declaration, apply likewise to attachment for rent.— C. C. P. .874, 875, amended ; R. S. 5974- - i 1 i i ' p I 154 The Code of Cicil Proccdnrc. CHAPTER XXXVII CONSERVATORY ATTACHMENT 955. If there is no other remedy equally convenient, benefi- cial and effectual, the i)laintiff may obtain a conservatory attachment upon producing an affidavit, showing : 1. That he is entitled to reclaim the possession of moveable property sold by him with a term for the payment of its price ; 2. That he is entitled to rank by preference upon the price of moveable property, and that it is being dealt with in such a manner as to defeat his remedy ; 3. That he is entitled, by reason of some provision of law, to have moveable property placed under judicial custody, in order to assure the exercise of his rights over it. 956. The proceedings upon conservatory attachment are subject to the rules governing attachment before judgment, m so far as they can apply. CHAPTER XXXVIII INJUXCTIONS 957. Anyjud^eof the Superior Court may grant an inter- locutory order of injunction in any of the following cases : 1. At the time of issuing the writ of summons : a. Whenever it appears by the petition that the plaintiff is entitled to the relief demanded, and that such relief consists, in whole or in part, in restraining the commission or continuance of any act or operation, either for a limited period or perpetu- ally ; b. Whenever the commission or continuanee of any act or operation would produce waste, or would produce great or irre- parable injury ; 2. During the pendency of a suit : a. Whenever the commission or continuance of any act or operation during the suit would produce waste, or would pro- duce great or irreparable injury ; b. Whenever the opposite party is doing or is about to do some act in violation of the plaintiff's rights, or in contravention of law, respecting the subject of the action, which is of a nature to render the final judgment ineffectual. — New. C. C. P. 1033ff ; R. S. 5991 ; Cal. 526 ; N. Y. 603, 604 ; Eng. J. A. 1873, 8. 25, sub-sec. 8 ; Eng. R. 657rt, 662 ; Ont. J. A., s. 53, sub-sec. 8 ; H. & L. 52 et seq. 958. An injunction cannot be granted: 1. To restrain proceedings at law, saving the power of the Injnncfionfi. 15 j.> court or of the jtidpe to direct, by an order in any matter or suit pending before them, that the procoedings therein be stayed ; 2. To restrain the exercise of any office in a public or in a private corporation. — New. Eng. J. A. 1873, s. 24, sub-sec. 5 ; Cal. C. C. 3423. 959. After the issue of the interlocutory injunction, any addi- tional injunction which is deemed necssary mav be granted. —New. C. C. P. 1033/, in part; R. \j. 5991 ; Cat. 527. 960. The application for an interlocutory injunction is made by petition, suppcrted by one or more affidavits verifying its allegations.- 0. C. P. 1033/>, amen<:le. CHAPTER XXXIX t- ^ !: Vl\ JUDICIAL SSQUESTRATION 973. All demands for sequestration are made by petition to the court or to the judge. It may also, accorv.ing to circumstances, be ordered by the court without being demanded by the parties.— C. C. P. 87G. 974. The judgment ordering sequestration commands the parties to appear before the court or before a judge, on a day fixed, to appoint a sequestrator ; and if the parties cannot agree, or if one of them makes default, the judge appoints one of his own accord.— C. U. P. 877, amended; Ord- 1667, til. 19, Art. 4. 975. Notice must be given to the sequestrator of his appoint- ment and of the time and place at which he will be sworn. — J?few. Ord. 1667, tit. 19, Art. 6. 976. The sequestrator must be sworn before the judge or the protbonotary to administer well and faithfully the things of which he is appointed depositary. He is put in possession by a bailiff, who draws up a statement containing a description of the property sequestrated. This statement must be signed by the bailitl'and also by the sequestrator, if he can sign ; if he cannot, mention must be made that he declared he could not sign after he was called upon to do so and the statement had been read to him.— C, C. P. 878. 977. Ifeither party, by violent mean?, hinders the appointment or the administration of the sequestrator, the other party may apply to be put provisionally in possession of the things in dis- pute, under the same conditions as a sequestrator.— C. C. P. 886. ' f '■■i ■ , i '*■ t 1. a : \ 'BCTa «ft 158 The Code of Civil Procedure. FIFTH PART SPECIAL PROCEEDINGS. CHAPTER XL PROCRBDINOS AFFKOTING CORPORATIONS OR PJBMO OFVIGBS SBCTION I {Corporations illegally formed, or violating or exceeding their Pow.rs 978. In all caaea of general public interest, the Attorney* General must, and in all other cases mav, but need not, unless sufficient security is given to indemnify the Government for the costs to be incurred, prosecute riola'ions of the law in the fol- lowing cases : 1. Whenever any association or number of persons acts as a corporation without being legally incorporated or recognized ; 2. Whenever any corporation, public body or board violates any of the provisions of the acts by which it is governed, or be- comes liable to a forfeiture of its rights, or does or omits acts» the doing or omission of which amounts to a surrender of its corporate rights, privileges and franchises, or exercises any power, franchise or privilege which does not belong to it or is not conferred upon it by law. — C. C. P. 997, in part, amended; R. S. 5988. 979- When security for costs has been so given, the inform- ation must mention the names of the persoa who has solicited the Altorney-General to take proceedings and of the person who has become security tor costs. — C. C. P. 997, in part, amended; R. S. 5988. 983. The writ of summons can issue only upon the author- ization of the judge gtinted upon the presentation of a special information containir g conclusions adapted to the nature of the ontravention, and supported by affidavit affirming the truth of the facts set forth in the information. — C C. P. 998, in part, amended; R. S. 5989. 981. The writ is 'a the same form as ordinary writs of sum- mons.— C- C.P. 998, in part; R. S. 5989- 982. Whenever the writ is addressed to per.^ons usurping cor- porate rights, it is served either upon any one of such persons, or at the principal office or place of business of the association, by speaking to a reasonable person.— C. C- P. 999, amended' Proceedings affecting Corpwations or Public Offices. 159 983. The proceedings are in all other respects subject to the same rules and delays as summary matters. — Neu;. C. C. P 999, in part, 1000-1000. 984. If the judgment declares the association to have been Illegally formed, the persons composing it are personally bound to pay the costs ; and if it is rendered against a corporation, )ublic body or board, the costs may be levied either upon the )roperty of such corporation, public body or board or upon the )rivate property of the directors or other officers thereof.— U. (J. MOOT. 985. Whenever any corporation, public body or board has forfeited its rights, privileges and franchises, the judgment de- clares it to be dissolved and to be deprived of its rights. — C. C. P. 1008, inpart. 986> Any creditor or other interested party may demand the appointment of a curator to the property of the corporation, public body or board so dissolved. The rules governing the appointment of curators to dissolved corporations, their lights, powers and obligations, apply to such curators.— ^ew. C.C. P. 1008, in part, 1009-1015 ; C. C. 371- 373a; R. S. 5798 ; C. C 684-688 ; C. C. P. 1331-1336 ; R. S. 6022. SECTION 11 Usurpation of Public or Corporate Offices or Franchises 987- Any person interested may bring a complaint whenever another person usurps, intrudes into or unlawfully holds or ex- ercises : 1. Any public oflBce or any franchises or privileges in the Pro- vince ; 2. Any office in any corporation or public body or board. Whether such office exists under the common law or was created in virtue of any statute or ordinance.— C. 0. P. 1016, amended. 988. The issue and the form of the writ of sunmons and the proceedings thereupon are governed bv the rules contained in Articles 980, 981 and 983.— 0. 0. P. 101*7, amended. 989. The plaintiff, in addition to the allegations concerning the usurpation acd illegal detention of the office, franchise or privilege, may in his petition declare the names of the person who has a right to such office, franchise or privilege, and allege such facts as are necessary to show such right. The court may in such case adjudicate upon the claims of both parties.— 0. C. P. 1018, amended. I 160 The Code of Civil Procedure. nil 990. If the petition is well founded, the judgment orders the defendant to be ousted and excluded from the office, franchise 01* privilege ; the judge may also condemn the defendant to pay a fine not exceeding the sum of four hundred dollars, which must be paid over to the Crown.— U. 0. P. 1019, amended: 54 Vic, c. 47, 8. 1. 991. Any person whom the judgment declares to be entitled to the office, franchise or privilege may, after taking the oath of office, and giving such security as may be required, take upon himself the exercise of such office, franchise or privilege, and may demand of the defendant all keys, books, papers and insig. nia in the possession or custody of such defendant and belong- ing to such office, franchise or privilege; and in the case of neglect or refusal to deliver up the same, the court may order the sheriff to take possession of such keys, books, papers and in. signia, and to deliver over the same to the person adjudged to be entitled thereto, without prejudice to criminal proceedings.— C. C. P. 1021, amended. SECTION III 1 11 II Mandamus 992. If there is no other remedy equally convenient, bene- ficial and effectual, a man. C. C. P. 1024. >. If the petition is well founded, the judge may order the .0-..V of a peremptory writ, commanding the defendant to do the thinj; demanded ot him. Whenever an election has to be made, the judgment pre- scribes the mode in whicli advertisements must be Riven, which 'must be, so tar as possible, the same as if tlie election had been made at the proper time— iVew, in pan. 0. C P. 1025, inpart^ 1028. 997. A copy of the peremptory writ is served upon the de« fendant in the manner provided for ordinary summons, or, if he has no domicile and cannoi be found in the Province, in the niiinner prescribed by the judge.— U. C. P., 1030, amended; 54 Vic, c. 41, 8. 5. 998. If the matter relates to the making by a corporation of any election to an office which is vacant by reason of such election not having taken place within the time required, or bting or having been declared null, the proceeding^ are the same as above mentioned, and the writ commands the proper officer, or, in his absence, such person as is appointed by the judge, to proceed to such election, at the place and time fixed, after having given the notices therein prescribed, and to do every act to be done \r order to such election, or to show cause to the contrary. — vJ. C, P. 1027, amended. 999. Nevertlieless, every such election and every act done in •order thereto is void, unless as great a number of voters are present and vote thereat as would have been required if the election had taken place at the usual time and under ordinary circumstances. — C. C. P. 1029. ' 1000. Any person to whom, or the person representing any •corporation to which, the peremptory writ is directed, is bound to return the copy of the writ servea upon him on the day spe- cified, together with a certificate thereon of its execution. — C. C. P. 1026, amended. lOUl. If the defendant fails to comply with the peremptory writ, he may be held by coercive imprisonment to do so, unless tKe defendant is a corporation, in which case it may be con- demned to pay a fine not exceeding two thousand dollars^ payable to the Crown, which is levied by execution in tbeordiit- itpy manner against its moveable and immoveab'jB property. ••: .. . :: . • .v 11 : • - ". ■'■ .: .. ■ i f 1 1 ilMlii ;. MMfiif * u' i ■* 1 1 . * j w !" >' ! j * .: ii 162 The Code of Civil Procedure. Such fine may be repeatedly inHicted until the mandamus is obeyed.— C. U. P. 1026, in partf amended. 1002. The penalties imposed by the preceding Article are inflicted by rule previously served upon the contra venmg party. — New. 8ECTI0X IV Prohibition 1003. The writ of prohibition lies whenever a court of infer* ior jurisdiction exceeds its jurisdiction. It is applied for, obtained, contested and executed in the same manner as mandamus, and with the same formalities ; and the writ of summons contains a summons to the court of inferior jurisdiction and to the party proceeding therein.— C. C. P. 1031, amended >' C. P. L. 846. 1004. The peremptory writ commands the court of inferior jurisdiction and the party proceeding therein to discontinue all proceedings in the matter. — New. 1005. In the case of failure to comply with the peremptory writ on the part of any member of the court of inferior jurisdic- tion or of the party upon whom the writ has been served, a line not exceeding two thousand dollars, payable to the Crown, with or without imprisonment for a term not exceeding one year, may be imposed for every such intraction. Such hne is imposed in the manner prescribed in Article Um.-'New. SKOTION V General Provisions 1006. No appeal lies to the Court of Queen's Bench frora any final judgment rendered under the provisions of thi9 Ch 1022. When the Governmout ia adjudged to siirrcndt-r moveable pro|)erty, the supjiliaiit iniiy, jilier tlie expiry ot ihe delay to appeal, or, in case of appeal, fifteen daya after liie rendering of the judgment in am>eal, obtain a wiit of attacli- ment in revendication, nnder which ilie property is seized and delivered to the snppliant.-C U. P. 886m; R. S. 5976. 1023. When the Government is adjudged to surrender im- moveable property, the guppUant may, atte;- the expiry ot \ he delay to appeal, or, m case of appeal, htteen davs after tlie rendering of the judgment in appeal, obtain a writ ot possession, under which the suppliant ia placed in p08:)e3sioD. — C C. P. 886/1 ; R. S. 5976. 1024. When the Government is adjudged to pay costs or a sum of money wi'h or without costs to the suppliant, after the expiry of the delay to appeal, or, in case of appeal, after the rendering of the judgment in apjieal, a certified copy of the final judgment maj' be left at the office of the Provincial Treasuicr, and the Provincial Treasurer must pay out of any money in his hands for the time being, legally aitplicable thereto, or which may be thereafter voted by the Legislature for that purpose, the amount of any moneys or costs which have been awarded to the suppliant by the judgment.— C. C P. 886a, amended: R. S. 5976. CHAPTKR XLIII HTP0TH£CAnT RECOURSE AOAINST IMMOVlABLKS OF WHICH THB OWNERS ARE UNKNOWN OR UNCERTAIN 1025. When the owner of an hypothecated immoveable is unknown or uncertain, the creditor to whom the capital or two years of the interest, or two years of arrears of any constituted or other rent, secured by such hypothec, is due, may present a petition to the Superior Court, praying for the sale of such im- moveable.— C. U. P. 900. 1026. Such petition must contain : 1. All allegations necessary to establish the debt and the hypothec ; 2. A description of the immoveable ; 3. The names of the occupier, if the immoveable is occupied, and, if it is not, the names of the last known occupier, the period for which it has remained unoccupied, the names of nil the kr wn owners since the hypithec was created, and a declaration that the petitioner has in good faith m^e due search and used due diligence to discover the owner ; 4. Conclusions praying that public notice be given to the actual owner to appear and answer the petitioDj and that, in defau of his doing so, the immo?eable be brought tosale.— C- 0. P. 901. I If I '■' ri 166 The Code of Civil Procedure. 1027. The petition must be verified by affidavit.— C. C. P. 902, amended. 1028. The Court, upon this petition, orders such proof as it deems necessary ; and, if tlie proof offered is sufficient, it orders the publication of a notice in accordance with Schedule X, in the Appendix to this Code.— C C. P. 903. 1029. The notice must be inserted once a week during four consecutive weeks in a newspaper published in the French language and in one published m the English language, in the district in which the immoveable is situated, or, if there be none, then in two newspapers published in one of the nearest districts. Except in the cities of Quebec, Montreal, Three Rivers, 8her- brooke, St. Hyacinthe and Sorel, and in the town of St. Johns, it must moreover be read and posted in both languages, at the door of the church of the parish in which the immoveable is situated, on a Sunday, immediately after morning service ; if there is no such service, it is sufficient to merely post the notice. If there is no church, the notice must be posted in the registry office of the locality. — C. C. P. 904, amended. 1030 If, within two months from the last insertion in the newspapers, no person appears as hereinafter provided, t'le petitioner proceeds as in any other suit in which the defendant fails to appear ; and upon proof that the required formalities have been observed, the Court declares the immoveable hypo- thecated, and orders that it be sold for the payment of the petitioner's claim. — 0. C. P. 905. 1031. Service of this judgment is not necessar'.— C. C. P- 906. 1032. Fifteen days after judgment rendered, a writ issues commanding the sheriff to seize and sell the immoveable hypo- thecated, observing the (brmalities required for ordinary seizures and sales of immoveables, saving the minutes of seizure, which are not required. — C. 0. P. 907, emended. 1033- Any proprietor, or any holder entitled 1o exercise rights of ownership, may, at any time before the rendering of the Judgment ordering the sale, enter an appearance, specifying his title and the extent of his right of property ; and, within two months, to be computed from the expiry of the delay mentioned in Article 1030. the petitioner is boundto file in the office of the court a demand avminst the party appearing, for the recognition of the hypothec, and to serve it upon such party. The same proceedings are bad upon such demand as upon ordinary suits for the recognition of hypothecs. — C. C. P. 908, amended. Compulsory Partition and Licitation. 167 1034. If several persons appear, claiming to be owners, each one in opposition to the others, the petitioner cannot be pre- vented from proceeding by such opposite claimants, unless his «ppl-OHtion is contested by one of them, who must previously establish an ostensible right of property, or unless one of them pays the amount of his claim and costs. — 0. C P. 909. 1035. Tn the case of there being opposing claimants to the property, without any contestation of the hypothecary demand, the court may, reserving its decision upon the opposing claims, grant the prayer of the petitioner, 5 1049. If the plaintiff foMs to frocecd with the publication of such notice within fifteen days from the judgment of licilation, any other party mny do so, and the first who takes such proceed- ings has the preference, and has alone the right to be paid the costs of the licitation.— C. C. P. 931. 1050. Oppositions to secure charge?, to withdraw or to annul, in respect of immoveables which are to be sold by licit- ation, cannot be received after the twelfth day previous to tl.e day fixed for the licitation ; if they are filed after that period, the right of the opposant is converted into an opposition for payment out of the price of the immoveables. — C C P. 932, amended. 1051. If any opposition to secure charges, to withdraw or to annul or anv other proceeding incidental to the licitation, can- not be decided before the day fixed for the sale, the licitation is^ suspended, and when rendering judgmer.t upon such oppositioa or proceeding the court may, if necessary, fix another day upon which the sale may be proceeded witii, after the parties have caused another notice, in the same form as thp first in so far as it can apply, to be published in the Quebec O^cial Gazette at least two weeks before the day thus fixed.— C. C, P. 933, a»icwrf«rf; R. S. 5981. 1052. Bids may be made in writjng at the office of the court in the same manner as in cases of sale of ''iTimoveables by the sheriff, and on the day appointed bids are received at the office of the court, but the adjudication is completed before the court. Minutes are drawn tip of such bids and adjudication. Strangers are in all cases admitted to bid. — C. C. P. 934. 1053. The adjudication is made in accordance with the con' ditions 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 completed and the ptirchasor has complied with the conditions by paying the moneys which must be deposited in court, the prothonotary must prepare a deed of sale, which must be drawn similarly to a sheriffs deed in so far as the provisions of Article 7e;o are applicable. — C.U.P. 935, amended. 1054. The adjudication, after the observance of the form- alities above prescribed, transfers the property with its active and passive servitudes, has the same effects as a sheriff's sale,^ and discbarges the property in the same manner from such other charges, privileges and hypoihecs as are not mentioned in the list of charges.— C. (J. P. 936. 170 Tlie Code of Civil Procedure. 'I 1 I 1055. The price of the adjudicatloD must be paid according to the conditions of the sale, and, unless otherviise provided, into the hands of the prothonotary witliin three days after adjudic- ation, saving the purchaser's right to retain the moneys on giv- ing 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 immoveables sold in execution. — C. C. P. 937, amended. 1056. All oppositions or claims for payment out of the pro- ceeds of the licitation must be tiled in the office of the court within six days after the adjudication, after which period they cannot bo received except by order of the court and upon such conditions as it may impose. — U. C. P. 938. 1057. The distribution of the purchase-money is subject to the sante formalities as in cases of execution against immoveables, and the party prosecuting the licitation is oound to obtain the cernficate of registered hypothecs which is necessary for that purpose. — C. C P. 939, amended. 1058. If any immoveable is situated partly in one district and partly in another, its licitation as a whole may be demanded and may be ordered in either district, if the jurisdiction in such case is not assigned by law to a particular court.— C. C. P. 940. CHAPTER XLV ACTIONS OP BOUNDAUV 1059. Whenever two contiguous lands have never been bounded, or the boundaries have disappeared, or the fences or boundary works have been wrongly placed, and one of the neighbours refuses to agree upon a surveyor to determine the boundaries or to verify or to rectify the division line^ as the case may be, the other party may bring an action against him to compel him to do so. — C. C. P. 941. 1060. If the parties do not agree, the court names a sworn ?,iirveyor, whom it charges with making a plan of the locality, showing the respective pretensions of the parties, and with mak- ing such other operations as it may deem necessary. — C, 0. P. 1061. The surveyor thus named is bound, under his oath of office, to proceed in the same manner as experts. — C. C. P. 943. 1062. If the parties desire it, more than one surveyor may be appointed.— C. C. P. 944. ;: Discharge from Hypothecs or Confirmation of Title. 171 1063. The fixing of bounds, the verifying of ancient bound- aries or rectifying of division lines, 13 oruered in conformity with the rights and titles of the parties and is done by the person named by the court, who proceeds in accordance with the judgment and, if necessary, places boundary marks in pre- sence of witnesses in accordance with law, and must draw up a statement of his operations and return the original of such statement to the court. — 0. C. P. 945, amended. CHAPTER XL VI POSSKSSORY ACTIONS 1064. The possessor of any immoveable or real right, other than a farmer on shares or a holder by sufferance, who is dis- turbed in his possession, may bring an action on disturbance against the person who prevents his enjoyment in order to put an end to the disturbance and be maintained in his possession. The action for repossession may be brought by any person who has had possession of an immoveable or real right for a year and a day against any person who has forcibly dispos- sessed him.— C. C. P. 946. 1065. Possessory actions must be brought within a year from the disturbance.— C. C, P. 947. 1066. Actions on disturbance or for repossession cannot be joined with the petitory claim, nor can the latter be brought uatil the action on disturbance or for repossession has been terminated and the condemnation has been satisfied and ex- ecuted. Nevertheless, if the party who has obtained judgment is in default with regard to the taxation of the costs o** -he liquid- ation of the damages, the other party may bring ois petitory action on giving security that he will satisfy such condemn ation.— U. U. P. 948, amended. CHAPTER XLVH DISCHAROE FROM HVPOTHECS, OR CONFIRMATION OF TITIiK 1067. Any person who has acquired immoveable property by any title of a nature to transfer ownership may free such pro- perty from any hypothecs with which it is charged, by obtain' ing a confirmation of his title according to the formalities here' inalter prescribed. — U- C- P. 949, amended. 1068. Such person must lodge the title which he seeks to iiave confirmed in the office of the Superior Court, in the dist- I ? ■ II ^1 ! 1: :iill s^ 172 The Code of Civil Procedure. , f liS. !l!l trict where the immoveable is situated, or in which the confirm- ation of title must be obtained, nnd obtain from the prothonoi- tary a notice in French and in English, mentioning thttt the deed has been so lodged, containing a designation of the deed and of the parties thereto, a description ot tlie immoveable, the date at which the application for confirmation will be present- ed to the court, an indication of the persons who possessed the immoveables during the three years next before snch notice, and calling upon all creditors who claim to have any privilege or hjrpothec upon the immoveable to file their oppositions witblii SIX days from the day fixed for presenting tlie application If the deed comprises immoveables situated in different districts, an application for confirmation of title should be made in each district for such immoveables as are situated therein. When the immoveable is situated partly in one district and partly in another, the proceedings may be had in either district, and avail for the whole of the immoveable- — C. C. P. 950^ amended, 951, in part. 1069. Such notice must be published : 1. By being inserted in the Quebec Official Gazette twice dur- ing the course of one month ; 2. Moreover, if the immoveable is sittiated in the city of Que- bec, Montreal, Three Rivers, Sherbrooke, 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 locality, and if tbere is only one newspaper in the district, or all are published in the same language, in both languages ia the same newspaper ; or, if the immoveable is situated in a par- ish other than those contained in the above-mentioned local- ities, by reading aloud and posting such notice on the third {Sunday before the day on which the application forconfirmatioa of title is to be made at the door of the church of the parish ia which the immoveable is situated 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 sufficient to merely post the notice.— C. C. P. 951, in part, 952, amended ; R. S. 5982,5983. 1070. In the case of immoveables 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 confirmed, or. it during that period he bad his domicile in more districts than one, then in the dis- trict in which be is actually domiciled, giving the same notice in the other districts in which he was domiciled during such three years. — 0. C. P. 953. 1071. Upon the day mentioned in the notice, the applicant must present his application for confirmation to the court. — C*. C. P. 954, i«par<; R. S. 5984. : n Discharijc from Hi/polhvcs of Confirmation of Title. 173 1072. The applicant must file with bis application : 1. Cerlificates of ti)e publications and posting required, if such have been had, and copies of the Quebec Offi,cial Gazette and of the news[)aper3 containing the notices ; 2. Certiticates from the registrar or registrars within whose divisions the immoveable is or was situated, prepared, in so far as maybe, in conformity with Article 771. — C. C. P. 954, in ■party 955, in part, aviended ; R. S. 5984. 1073. The provisions of Articles 772, 773 and 774 apply also to the certiflcate mentioned in the second paragraph of the -preceding Article. — C U. P. 950, amended. 1074. All hypothecary creditors, whose rights are not made known by the deed of which confirmation is sought, or bv the re/pstrar's certificate, are bound, on pain of being foreclosed from doing so, to file their oppositions on or before the sixth day after the day fixed for presenting the application. — C. C. P. 957, amended. 1075. No opposition is, however, necessary for the preserva- tion of the principal of rents created in place of seigniorial rights. The provisions of Articles 790 and 791 apply also to proceed- ings to obtain confirmation of title. — C. C. P. 958. 1076- During the month prescribed for the publication of the notice of the ap[>lication for confirmation of title, any cre- ditor of the vendor or assignor or of his predecessors in title, may appear at the office of the court, and bid an increase over the sum, price, or other consideration or value, if any, men- tioned in the title, and have his bid received, provided the in- crease be equal to at least one-tenth of the whole |)rice, sura or other consideration or value, and the bidder offers, besides, to refund to the applicant all his costs and lawful disbursements, giving him security to that effect, in the ordinary manner, or depositing for that purpose a suilicient sum, according to the discretion of the judge, reservina: the pub^eqiient completion of the precise amount. — C. U. P. 959, amended; R. S. 5985. 1077. Any other creditor of the vendor or assignor may, in like manner, and under the same conditions, outbid such ere- ditor, and all such creditors may continue outbidding each Other, provided each outbidder offers an increase of at least one- tv^entieth of the price, purchase-money or other consideration or value, over and above the costs and awful expenses. — U. C. P. ?60, amended. 1078. The applicant may, however, retain the immoveables at the amount of the highest bid legally offered.— C. C. P. 861. : ■ i i«ii|^' :i| rp^ « P ; 15. 174 The Code of Civil Procedure. 1079. If no such outbidding takes place within the delay above-mentioned, the value ot the imnjuveable remains defi- nitively fixed at the price and sum mentioned in the title-deed, savine the provisions hereinafter contained.— C. C. P. 962, amenwud. 1080. If the applicant desires to discharge the property from hypothecs, he must deposit in the hands of the prothonotary, together with a certificate of hypothecs, the price mentioned in the title-deed, or the amount which such price has reached by the outbidding. When, however, he has an hypothecary claim against the property, which appears by the certificate of the reaistrar, he may retain the purchase-money, to the extent of his claim, until judgment has been rendered, provided he furnishes the prothonotary with good and sufiicient sureties for all damages that may be suffered by any interested party in the event of the non-payment of such sum as the court shall order. If it appears by the certificate of the registrar that there are no hypotliecs, and if there are no oppositions or claims, or if the amount which has been deposited or for which security has been given Is sutticient to pay all the charges which appear, then judgment of confirmation is pronounced purely and simply.— C. C. P. 963, amended; R. S. 5986. 1081. But if the sum which has been deposited or for which security has been given is not sufficient to pay all the charges and hypothecs which appear, or if no price is mentioned in the deed, the judge may, at the instance of the applicant, name two experts, and the applicant names a third, in order to determine the value of the property and to report thereon ; the whole ac cording to the ordinary formalities. — 0. C. P. 964, amended. 1082. If the value determined by the experts does not exceed the price paid in by the applicant, the judgment of confirmation is pronounced purely and simply. If the value determined by the experts exceeds the price thus paid in, or if no price is mentioned in the title-deed, the appli- cant cannot obtain a confirmation unless he deposits the difference between the value thu.s ascertained and the price, or the whole of such value, if no price has been agreed upon. — C. U. P. 965. 1083. The provisions of the last two preceding Articles do not apply to cases of expropriation of property by competent authority for public purposes when the compensation or indem- nity has been settled by arbitration or by experts according to law.— C. C. P. 966. 1084. Upon proof of the observance of all the formalities hereinabove prescribed, judgment is pronounced confirming th» Certain Proceedings hetwten Lessors and Lessrcs. 175 title-deed as free from all hypothecs other than those laeulioned in Article 1075.— U. C. P. 9(i7. 1085. If the applicant files a written declaration to that effect, judgment may be rendered subject to the hypothecs mentioned m the registrar's certificate, and to the oppositions and claims filed J and in such case the mimoveable is discharged only from such hypothecs as are not men''oned in such judgment.— C. C. P. 968. 1086. The price deposited is distributed under an order of the court, as moneys levied upon the stizure and sale of immove- ables uuv^er execution.— C . C P. 969. 1087. The prothonotary, before delivering to any person a cony of any judgment of confirmation of title, must cause such juagment to be registered in the proper registry office, as pre- scribed in the title Of Registration oj Heal Rights in the Civil Code, and has a right to demand from the applicant the costs and expenses of such registration, and of the cancellings \vhich it occasions.— C. C P. 970. 1088. The word "hypothec "in this Chapter includes all privileges atlecting real estate.— C. C. P. 971. CHAPTER XLVIII CERTAIN PROCKEDINQS BfiTWEKN LESSORS AND LESSEES. 1089. Whenever any rent is due by a lessee ^'nd is not paid when due, the proprietor or lessor may notify the lessee, in writ- ing, to quit the premises leased within a delay which sliuU not be less than three clear days; and, if he quits within the said delay, the rent due is remitted hiui. If the lessee refuses or neglects to comply with the baid notic*^ within the specified delay, the Ussor may, by suit before a com- petent court, have all the moveables frarnishing the leased premises, and which have not been removed wiihin the specified delay, attached, and have them sold in the ordinary manner, without the stid lessee having any right to avail himself of the exemption fron.> seizure provided tor under Articles 598 aud 599, Paragraph 2. The lessor need not avail himself of the benefit of this Article, and in that case he retains all his rights and recourse as though this Article did not exist. I!i ! 176 The Code of Civil Procedure. CHAPTER XLIX , i '' lii SEPARATION B'iTWBE.V CONSORTS SF.CT10N I Separntion of Property 1090. No suit for separation of property can be brouj;ht by a married woman without the pisvious authorization ofajudf^e, granted upon a petition to that effect or upon conclusions for that purpose contnined in the declaration in such suit.— C. C. V. 972. 1091. Suits for separation of property must be brought only in the cases mentioned in Article liUl of the Civil Code, and within Ihe jurisdiction prescribed by Article 96 of this Cole. — C C. P. 973, amended. 1092. The formalities required for ordinary summons in [ordinary cases]* must be strictly observed in such suits, and thvj contort summoned has no power to dispense with the same, either directly or indirectly, even as regards the delay upon the summons. Notice of such suit must be given and published during one month in the Quebec Ojjiciat Gazette, and in two newspapers at, or as near as possible to, the place where the defendant resides, one of which is published in the French and the other in the English liinguage. No proceedings can be had in such suit ntil after the publi- cation of such notice.—C. C. P. 974 j R. S. 55)87. 1093. Whenever the suit for separation of property is taken against the will of the husband, the wife may, with the author- ization of the judge, obtain an attachment against the moveable property of the community, for the preservation of the share which she will have a right to claim when the partition takes place. The attachment is effected in the same manner as attachment for rent, but the husband remains judicial depositary of the property attached The judge may, according to circumstances, allow the attach- ment to be releiised or suspended, with or without security. — ■' New. C.C.P. 987; C. F. C. C.204. 1094. Any creditor of the person sued for separation of properly has a right to intervene in the suit, in order either to watch the proceedings or to contest the plaintiff's claim, and he may fur this purpose set up whatever grounds and exercise whatever rights his debtor might. — C. C. P. 976. • These words are found in the corresponditig arii ;le of the old code, and appear to have been inadvertently omitted by the coditlers. t^cparation heUtrcn Consorts. 177 1095. Separation of property thus sued for cannot be granted upon the confession or the admissions of the defendant ; the al- legations of the declaration must be eatablished by some otbtir legal proof.— C. C. F. 976. 1096. The judgment pronouncing separation of property may at the same time determine the reprises of the plaintiff, or order that they be determined by a practitioner or by experts, if there is occasion for it.— C. C . P. 977. 1097. Kvery judgment ordering separation of property must be inscribed, without delay, by the prothonotary upon a list kept for that purpose, and posted in the office ol the court which rendered the judgment ; and such inscription and the date thereof must be mentioned at the end of such judgment in the register in which it is recorded. — New. (J. C. 1313, in pari; K. S. 6235. 109S- The judgment of separation may be executed either voluntarily, by the actual payment, established by anatithentic act, of what the wife has a right to receive or get back, or by legal means, by proceedings instituted for the purpose of obtnin- ing such payment, but without prejudice to the rights of third parties.— 0. 0. P. 981, in part ; (J. 0. 1312, in part. BKCTION II Separation from Bed and Board 1099. No suit for separation from bed and board can be brought except within the jurisdiction stated In Article 9G of this Code. — New. U. C. 192, amended. 1100. The suit is brought, tried and decided in the same manner as all other civil suits; nevertheless, the parties cannot admit the allegations, proof of which must always be made before the court. — New. C. C 193. 1101. A wife who desires to obtain a separation from bed and board must, in order to bring the suit, first obtain the authorization of a judge, by means of a petition giving a sum- mary statement of the facts which give rise lo her application with an affirmation under oath, and indicating the house where she intends to reside during the suit, and where she will convey the linen and wearing apparel necessary for her use. The application must be served upon her husband if tbe judge 80 orders.— C . C. P. 986. 1102. If the wife thinks proper to demand an attachment of the moveable property of the community for the preservation Of tbe shore, woico she will have a riffht to claim when the 12 i ; * ■■/I 178 The Code of Civil Procedure. partition takes place, she must likewise be authorized by a judflfe for that purpose. The attachment is ett'ectefl in the same manner as attaolimcnt for rent, but the husband remains judicial guardian of the property attached. Tne jud)?e may, according to circumstances, allow tlie seizure to be released or suspended, with or without security. — New, in part. U. C. P. 987 ; Of. C. 0. 204. 1103. The wife may also join with her dt^mand for separa- tion an attachment in revendication of such moveable property as belongs to her.— C. U. P. 988. 1104. The trial of the case, the judgment, its execution and its publication are subject to the provisions contained in the preceding Section.— C. C. P. 989. CHAPTER L OPPOSITIONS TO MAUUIAGB 1105. Oppositions to marriage are brought before the Superior Court of the district of the domicile of tlie party wljose marriage is opposed, or of the place where the miirriag'^ is to be solemnized, or before the judge of such court. — A'ew. C. C. 145. 1106- The opposition must be accompanied with a notice indicating the day and hour at which it will be presented. — C.C. P. 990, amended. 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 tlie usual addition where the distance exceeds fifty miles. — C C. P. 991, amended. 1108. The proceedings upon the opposition are in other respects subject to the same rules and delays as summary cases between lessors and lessees. — C. G. P. i)92, amended. 1109. If the opi>osant fails to present his opposition upon the day fixed, any person intereeted may obtain judgment of non- suit against liim, upon filing a copy of the opposition served u7>on such person ; and, upon receiving a copy of such judg- ment, the functionary called upon t) solemnize the marriage- may proceed.— 0. C P. 993. . 1110. If the opposant fails to proceed in the manner pre- gcVibe'd, tlie 'opposition is declared abandoaeid.— U. C. P. 99 C Vaheas Corpus ad SuhflHemlum In Civil Matters. 179 1111. The judge, before rendering jucl(;ment upon theoppo- silion, may, if there be cause for it, summon the relatives, and, in default of relatives, tite friends of the intended consorts, in order thai they may give their opinion upon the intended mar- riage, and that such nirther action may be had as to law may appertain. If the opposition is made by a tutor or a curator, the judge -cannot decide upon it witliout the advice ot a family council, whicli he must order to bo called. — ^ew, in part. U. C. P. 995 ; C. C. 138. 1112. Whenever an appeal or review has been taken, the iu'oceedings tliereon are summary and have precedence. — C C. '. 99G, amended. 1113 If the opposition is dismissed, the opposants, other than the fatlier or motlier, may be condemned to pay costs, without prejudice to the recourse in damages — yew. (J. C. 147, in pari. CHAPTER LI HABBAS COIiPUS AD SUBJICIENDUM IN CIVIL MATTEItS. 1114* Any person who is confined or restrained of his liberty, oilierwise than under any order in civil matters granted by a court or judge having jurisdiction, or than for some criminal or supposed criminal matter, or any other person on his behalf, may apply to anv one of the judges of the Court of Queen's Bench, or of the Superior Court, for a writ addressed to the person under whoso custody he is so confined or restrained, ordering the latter person to bring him forthwith before the judge who granted the writ, or before any other judge of the same court, together with the cause of his detention, in order to examine wliether such detention is justifiable. — C. C. P. 1040, 1052, amended. 1115. The application must be supported by an affidavit, showing that there are probable and reasonable grounds for the application.— C. C.P. 1041. 1116. The writ issues in the name of the Sovereign, is scaled with the seal of the court to which the judge who granted it belongs, and is attested in the same manner as any other writ. It is returnable without delay, unless a term of the court is so near that the writ cannot be executed before such term, in which case the judge v[\ay order the writ to be returned during term ; and if the end of the term be so near that the writ cannot properly be executed during the term, it may be made returnabid during the following vacation. — C. 0. P. 1042. - , .. ^ >,! ;l H 'I , t'l ''[^^^^B ^HS Vj, ^B a '"^Ha 5 ^, '. iH^H V ■ ■/■;! 1 U 1 : i^B t iHI I Mi i9 180 The Code of Civil Procedure. 1117. The writ is served by leaving the original with the person himself to whom it is addressed, or by speaking to his domestic serTant or agent at the place where the person i» Confined or restrained. The return of service is mpde upon a certified copy. — C. C. P. 1043, amended. 1115 If the peracn upon whom the writ of Habeas Corpus is serred fails to comply with it, he is held to be guilty of » contewpt of the court under whose seal the writ issued, and the ju»]ge may grant a rule under the seal of the court, return- able betore such judge or before the court for his imprisonment. — C. C.P. lOU, amended. 1119. Upon the return of the writ of Habeas Corpus, or of the rule mentioned in Article 1118, the judge proceeds, as soon as he conveniently can, to examine, by affidavit or by the exam, ination of witnesses under oath, into the truth of the facts alleged, and decides accordingly. — 0. C. P. 1045, amended. 1120. If the judge before whom the writ is returned in vaca- tion 's in doubt as to the truth of the fact? alleged in the return^ he may admit to bail the person so confined or restrained, upoa his entering into a recognizance with one or more sureties, or in the case of minors or of women under marital authority, upon security being given by recognizance in a reasonable sum, for the appearance of the party before the court on a fixed day during the next term, and, from day to day, to abide such order as the court may make.— C. C. P. 1046, amended. 1121. The writ of Habeas Corpus is thereupon transmitted to the court, together with the recognizance and all the papers connected with the application, and the court thereupon makes such orders as to justice may appertain.— C. C. P. 1047. 1122. The court may direct one or more written issues for the trial of the fkcts alleged in the return, and such is-ues are tried either b^ affidavit or by the examination of witnes^30S before the cour; or judge, as such court or judge may think proper.— C» C. P. i048. 1123. The same proceedings are had in term in the Court of Queen's Bench and in the Superior Court, respectively, for controverting tlie truth of the rettirn.— C. C. P. 1049. 1124. The court or the judge may pronounce upon all costs incurred in the issuing, contestation and execution of the writ 61 Habeas Corput.— ij. C. P. 1050. 1125. Whenevej' a writ of Habeas Corpus has been once refused by any judge, the application cannot be renewed before General Provisions, 181 l]im or before any other judge unless new facts are alleged ; but the application may be renewed before tbe Court of Queen's Bench at its next sitting in appeal at tbe place where appeals are brought from the district m which the application is made. — C. C. P. 1051. ^1 ill SIXTH PART PROCEDURE IN THE CIRCUIT COURT CHAPTER LII GENERAL PROVISIONS 1126- All the powers conferred upon the Superior Court, or upon the judges and officers thereof, respectively, relatively to matters within their jurisdiction, are also conferred upon the Circuit Court, within the limits of its cognizance, upoi tbe judges who hold such court, and upon the officers of the said court, respectively, with regard to the same matters and tbe other matters which form the subject of the present Part, or with regard to any other matter concerning the manner of conducting suits, actions or proceedings in the Circuit Court. Whatever may or must be done by the prothonotary, as regards proceedings in the Superior Court, may or must be done in like manner by the clerk of the Circuit Court, a^ regards proceed- ings before the latter court, except, h. v/wer, the judicial powers conferred upon ihe proihonotar; i-j. the absence of a judge. — C. C. P. 1059, in part, amended. 1127. All commissioners and other persons authorized to receive affidavits to be used in the Superior Court have also like powers with regard to the Circuit Court.— C. C. P. 1060. 1128. The Circuit Court for any district is held at the same place as the Sufierior Court, and its jurisdiction extends over the whole district by the name of which it is designated. It cnnnot, 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 iu. which the cause of action originated. — C. C. P. 1061. 1129. The Circuit Court for a county has jurisdiction over the whole extent of such county, even when more than one place therein is appointed for its sittings. — C. C. P. 1063. 182 TJie Code of Civil Pro?edur€. 1130. In the cases mentioried in Article 49, the defendant may, before pleadinj? to the merits, evoke the ^iiit or action, and require it to be removed to tlie Superior Courv in the same district for hearing and judgment. The declaration of evocation is filed in the recjrd, which is thereupon removed to the office of the prothonotary, and the Superior Court detorniines in a summary way whether the evocation is well-founded or not. Tn the former case the Supe- rior Court tries the cause and renders judjjrment 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 plaintiff's title to any immoveable, in such amanner as might im[tair or injuriously affect the rights of the plaintiff in the future, the latter may evoke the suit, and proceedings are then had as in cases of evocation by the defendant.— C. C. P. 1058, in part, amended. li'^l. All proceedings incidental to an execution against iiiuVcLjle property, whatever may be the amount or the valufr of the thing claimed, are within the jurisdiction of the court which issued the writ. 1132. The writ of execution against an immoveable is return- able to the Superior Court of the district in which the judg- ment was rendered. — C. C. P. 1086, 1102, in part, amenied. 1133- AH proceedings incidental to the seizure or sale ot immovoables seized are carried on before the Superior Court into which the writ of execution is returnable, in the same manner as if the judgment had been rendered by such court. — 0. C. P. 1088, amended. 1134. Upon the return into the Superior Court of a writ of execution against immoveables, granted by the Circuit Court, the former court may order the clerk of the latter to transmit the original record in the case, that it may serve for all legal purposes.— C. C. P. 1090, amended. CHAPTER LIII PROCEDCnB IN CASKS SUSCEPTIBLE OF REVIEW OR OF APPEAL 1135. going Cbapte review or of ft^^...., ^ ^ , the rules governing proceedings up to judgment, judgments therein, remedies in the Circuit Court against such Judgments, the execution of such judgments, oppositions to seizures and Ciai SfqufSirniiuii, UAUf^i luuoc inanu^ lu irmi u^ jury auu lu abandonment of property are the same ts in like matters ia the Superior Court. — New. C. C P. 1059, mj^a/Y, 1065. m Procedure in Cases lot ASK'^m)tihU' of Rcvkic. iH'i CHAPTER LIV PROCEDURE IN CASES NOT 8D8CEPTIBLE OF REVIEW OR OP APPEAL. 1136. Saving the special provisions of Chapter Fift.y-second, and of the present Chapter, in causes, nDatlers and things not susceptible of review or of appeal, instituted and pending in the Circuit Court, the rules governing proceedings up to judgment, judgments therein, remedies in tue Circuit Court against such judgments, the execution of such judgments, ojjjtositio.as to seizures and sales, attachmenis before judgment, attachments in revendication, attachments for rent, conservatory attachments, and judicial sequestration, except those relating to tr al by jury and to abandonment of property, are the same as in like matters in cases in the Superior Court. — New. 1137. When the writ of summons is addres?cd to the sheriHT or a bailifFof a district other than that whence it issued, it may be served by the sheniFor any bailiff of such disUlct ; but he is entitled to no more costs than if the service had been effected oy the bailiff nearest to the residence of the defendant tluis summoned. Any writ of summons, of subjioena or of execution, issued out of any Circuit Court in any county, may be served or executed by any baililf residing in the district ; but such bailift is en- titled to no more costs than if the service had been made or the execution had been effected by the bailiff residing nearest to the residence of the person summoned or against whom the execu- tion is taken. Nevertheless, in any case in which it is established, to the satisfaction of the judge or of the clerk, that such writ should be addressed to and executed by the sheriff or some other bailiff, it may be so addressed and executed ; \-\ which case the costs are taxed as from the office of the sheriff or from the residence of such bailiff, and for the distance actnally travelled. — C. C. P. 10G8, amcwcfec// R. S. 59^7. 1138. If the defendant is in default to appear or to plead, the plaintiff is not bound to give notice of the inscription lor proof, when such proof is necessary, or of the inscription for judgment. — 0. C. P. 1099, in part. m 1139- The delay for pleading to the merits is four days i the appearance of the defendant. There is a like delay of four days between each subsequent pleading allowed by law. — C. C. P. 1070, in part, amended. 1140. Immediately after issue joined, the case may be in- scribed by either party for proot and hearing. Article 295 does not apply to any such inscription. — C. C. P. i07'2, amended. rh. : 13> t fl 1S4 !the Code of Civil Procedure. 11-11. Notice must be given to the opposite party at least three days before that fixed for proof and hearing. — C. C. P. 1099, in part. 1142. The proof is made orally and in open court, without notes thereof being taken. — C. C. P. 1101. 1143. No person residing at a distance of more than forty-five xnW'iS from the place where the proof is to be taken, or beyond the limits of the circuit, is bound to attend as a witness unless he is summoned in conformity with the provisions contained in Articles 299 and 300.— 0. C. P. 1076. 1144. Issues of law are raised 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. — C. C. P 1077, amended. 1145. The judge may at any tim order the proof to be Imd, 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 th^ provisions coniained in Articies 357 and 358.— C. U. P. 1078, amended. 1146. Whenever, in consequence of an opposition to the seizure or sale, an order to stay execution is necessary, it mry be granted by the judge, either within or beyond the limits of the circuit, or by the clerk. — C. C. P. 1084, in part, amended. 1147. In default of moveable property, the judgment may be executed upon such immoveables of the debtor as are within the limits of the district in which the judgment was rendered, or in any other district. Nevertheless, saving the cases mentioned in Article 1148, judgments for sums not exceeding forty dollars can be executed only against the moveable property. — C. C. P. 1085, 1102, in pari. 1148. In the case of an immoveable which is declared by the judgment to be hypothecated, and has been surrendered, or in cases of arrears of rents constituted under the Seigniorial Act of 1854, whatever may be the amount thereof, a writ of execution may issue immediately against such immoveable. — C. C. P. 1087, 1102, in part, amended. 1149. All cases not susceptible of review or of appeal are determiued in a summary manner; and, when the amount claimed does not exceed twenty-five dollars, they are decided according to equity and good conscience. — 0. C. P. 1104, in part. -"-^^Tjnp Procedure in Summary Matters. 186 SEVENTH PART SUMMARY MATTERS CHAPTER LV PROCEDURE IN SUMMARY MATTERS 1150. The followinj; are deemed tobesummary matters, and are tried as such according to the rules set forth ia this Chapter : 1. ActioDS arising from the relation oflessor and lessee ; 2. Actions founded on bills of exchange, promissory notes, cheques, or orders tor payment, kons or acknowledgments of debt ; 3. Actions by traders for the price and value of goods or articles soli, 'work done, materials furnished or moneys disbursed in the ordinary course of their commercial opera- tions ; 4. Actions by farmers for the price of their farm produce ; 5. Actions by advocates, notaries and physicians to recover sums due them for professional services; 6. Actions by printers for printing, publications, or work performed by them in that capacity, as well as those for the price and value ot subscriptions to newspapers ; 7. Actions founded upon loans of money, whether secured by hypothec or not ; 8. Actions for salary or wages of schoolmasters, teachers, clerks, employees, workmen and laborers, as well as actions arising from the relations between servants and their masters ; 9. Actions by hotel and boardiug-house keepers for sums due tor board and lodging ; 10. Actions arising from the purchase or sale of rigging, or from fitting out and provisioning vessels ; 11. Actions arising from freighting, chartering and loans upon respondentia ; 12. Actions arising from engagements or agreements for wages and hiring of crews j 13. Actions arising from engagements of seamen for service in merchant shipping ; 14. Actions to unseat or disqualify mayors, aldermen, muni- cipal councillors or school commissioners. — New, in part. C. ' ii €. P. 887 ; R. S. 5977 : 53 Vic, c. 61, 8. 1 ; 54 Vic, c. 41, 8.4. ( I ' I it I 186 The Code of Civil Procedure. 1151. Saving the special provisions contained in this (viiapter^ the rules governing procedure in ordinary cases apply likewise to summary matters. — New. 1152. In the actions mentioned in Paragraph 1 of Article 1150, the class of action and the jurisdiction of the court are determined 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 without an attachment for rent, an attachment in recaption, an attachment before judgment in the hands of the lessee or of garnishees, or an attaciiraent in revendication ot moveable property leased. — U. U. P. 883,^ amended; R. S. 5977 j C. S. L. C, c 40, s. 9. 1153. In the actions mentioned in Paragraph 1 of Article 1150, tlie delay upon summons is only one intermediate day when the place of service is within a distance ot fifteen miles, with an additional day for every fitty miles ir addition ; pro- vided always that the delay need never exceed twenty days, whatever the distance. In other summary actions, the delay for summons is the same as is prescribed by Article 149. — C. C, P. 891, amended; R. S, 5977. 1154. Notice of motions urging preliminary exceptions must be given to the opposite parly within two days from the return, saving the cases mentioned by Articles 177, Paragraph 6, 178 and 181.— Mew. 1155. The defence must be filed within two days from the return of the action. Nevertheless, whenever preliminnry exceptions have been filed, this delay runs from the time of judgment upon such exceptions, except where it is otherwise provided in the first section of Chapter Sixteenth of this Code.— C. C. P. 892, in part; R. S. 5977. 1156. Any other pleading which may be necessary to com- plete the issues must be tiled on the juridical day following the filijig of the pleading immediately preceding it. — C. C P. 892, § 3, 893, amended^ R. S. oJTT. 1157 The hearin*: upon an inscription in law can only he had upon the expiry oi' one day from its service upon the opposite party. Nevertbelwe, in cai^s not susceptible of review or of apt»eal, the case may be inscribed for proof and hearing, reserving iho argument on the law iBSues until after the proof. — Sew. oppositions to JuduiMnls. 187 1198 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. — C. C. P. 894, 897a, in part, amended; R. S. 5977. 1159. A notice of at least three days must be given to the opposite party of the day fixed for proof and hearing. — C. U. P. 897«, in part, amended; R. S. 51)77- 1160. Judgment may be rendered either in term or out of term. It is executory eight days after it is rendered. The delay for ejectment, however, in the actions mentioned in Paragraph 1 ot Article 1 150, is within the discretion of the court. — U. C. P. 898 ; R. S. 5977. 1161. The delays respecting summons and pleadings also apply to all interventions, oppositions or other incidental pro- ceedings of the same nature.— C- C. P. 899 ; R. S. 5977. 1162. The words : "summary procedure," must be written or printed at the head of each original and copy of the writ of summons issued under the provisions of ti)is Chapter, which provisions must be interpreted so as not to take away the right of proceeding under the ordinary rules of procedure.— C. C. P. 899a, in part, amended; R. S. 5977 ; 53 Vic, c. Gl, s. 3. EIGHTH PART REMEDIES AQAINST JUDGMENTS ■'^ II] If. !f CHAPTER LVr OPPOSITIONS TO JUDGMENTS 1163. Any defendant condemned by default to appear or to plead may, if he was i)revented from filing his defence by surprise, fraud or any other cause considered sufficient by the judge, obtain relief from the judgment by means of an opposition. — C. C. P. 483a, nijjart, 484, in part. 1164. The opposition must contain all grounds, whether in support of the opposition or of the defence— C- C P. 485, amended; 493a, in part. 1165. The opposition must be accompanied with an affidavit that the fa< ^'^ therein ontainHl *r», to the deponent's kuowl- edge, true. — 0. C. P A^, in pari, 483a, in part. 188 The Code of Civil Procedure, : 1166- The opposition must be made within fifteen days after service of the judgment ; or, if there is no such service, it must be made either before the oale under the seizure, or within ten days from a return of nulla bona, or within ten days from the service upon the defendant of any seizure by garnishment issued by virtue of such judgment. — C. C. P. 484, iii part, amended. 3167. Notwithstanding the expiry of ttie above delays, the defendant may be allowed to make opposition, upon establish- ing that, owing to absence, severe illness or other circumstances of irresistible force, he was prevented from learning of the action or of the judgment, or from making opposition within the prescribed delays. In such case, however, the opposition does not lie whenever, after the hindrance ceases or knowledge is obtained of the action or of the judgment or ot proceedings in execution, the defendant, it he is present in the Province, fails to make oppo- sition within a delay of fifteen days, or, if he is absent there- from, within such delay as is considered necessary according to the distance.— iVew. 0. P. G. 138, 139. 1168. The opposition is filed in the office of the court, but it is without effect, and cannot be received by the prothonotary unless it is accompanied with an order of the judge allowing it to be filed. — C. C. P. 487, in part, 483a, in part. 1169. The defendant must deposit in the office of the court a sura sufficient to meet the costs incurred after the return of the writ up to the judgment, and the service thereof. Such sum is patd to the party indicated by the judgment on the opposition. — (J. C. P. 486, in part, amended. 1170. Within three days after filing the opposition, the defen- dant must, on pain of nullity, serve a copy thereof, together with a copy of the certificate of filing, either upon th*^ parties in the cause, or, if the opposition is made within a year and a day after the judgment, upon their attorneys. — C. C. P. 489, amended. 1171. If the opposition is made after the issue of a writ of execution, a copy of the certificate of the filing of the opposition is served upon the officer charged with the writ. — C. 0. P. 488, in part, amended. 1172. The service of the opposition and certificate has the eflfect of staying the execution or of suspending the sale under the seizure until final judgment on the opposition. In the case provided for by 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 wrl*. of execution and the certificate served upon him. — C. C.P. 488, in _parl, amended. PctiUona in Revoeation of Jiidijmrnt. 189 1173. The opposition forms part 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 contesting the opposition are computed from its gervice.— iVtfw, tn j>art. C. C. P. 489, 490. 1174. A pnrty must bear all costs incurred by reason of his^ own default, whatever judgment bb rendered on the opposition. —New. C. P. G. 145, § 1. CHAPTER LVII PETITIONS IN REVISION 1175. Whenever the defendant has not been served person- ally or at his real domicile, or ordinary and actual place of residence or of busim^ss, iie may apply by petition, within a year and a day, for the revision of any judgment rendered against him by default. — C. U. P. 483, amended. 1176- The petition in revision is governed, in so far as may be, by the rules contained in Articles 1164, 1165, 1167, 11G8, 1170,1171, 1172, 1173 and llH.—New. CHAPTER LVIII PETITIONS IN REVOCATION OP JUDOMKNT 1177. Judgments which are not susceptible of being appealed from or opposed, or against which adequate relief cannot be obtained by means of a|)peal or opposition, may be revoked upon a petition presented to ine same court by any person who was a party or was summoned to be a party to the action, in the fol- lowing cases : 1. Where fraud or artifice has been employed by the opposite party ; 2. Where any proceeding prescribed by law has not been adopted, and the nuUity resulting theretrom has not been covered by the parties ; 3. Where the judgment decides matters not submitted for de- cision ; 4. Where the judgment is for more than was demanded ; 5. Where the judgment has omitted to pass upon any part of the demand ; 6. Where the judgment has been rendered upon documents which have onlv subsequently been discovered to be false, or upon any unautiiorized tender or consent disavowed after judg- ment ; 7. Where, after judgment rendered, documents of a conclusive ! ^l 7 ^ Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 7a m The Code of CivU Proc^ure, 1 1 1193. 93. Proceedings in review may be bronght by the legal representatives of a party to a sait who has died.— Aeu;. U. C . P.. 1164, in part. 1194. Proceedings in review of judgments rendered against a woman who hns since married may oe brought by her liuS' band, jointly with her ; or, in the case of a judgment rendered against a party represented by a tutor or carator or other person, but who has since attained full age or come into the exercise of his rights, by such party himself, without the assistance of the tutor or curator who represented him or other person who assisted him in the original suit ; or in the case of a judgment rendered agains*. ' A»tameniarv executors, some or all of whom have been replai ' v: have aied, by the persons appointed in their stead or by tlie.remaining'executors.— ^(sw. C. C.P. 1154, in part. 1195. If some o< iM.sA parties die after the inscription in review, suoh procef; j<'b may be continued by and between the other surviving parties.- -^(Bw. C. C. P. 1155. 1196. The review cannot be obtained until the inscribing party has deposited in the office of the court by which the judg- ment was rendered within eight days atler the date of the judg- ment: 1. The sum of tifty dollars, in matters wherein the amount in controversy does not exceed four hundred dollars ; 2. The sum of seventy-fire dollars in all other cases. The deposit is intended to pay the costs in review of the opposite party, if any are allowed ; otherwise, it is returned to the party by whom it is made. When the judgment has been rendered elsewhere than in the Gitv of Quebec or of Montreal, an additional sum of three dollars, for making up and transmitting the record, must ac company the deposit. — C. 0. P. 497, amended; R. S. 5908. 1197. When several parties inscribe separately in review, a- deposit must bcfmade with each inscription. Nevertheless, only one deposit is necessary whenever there has been a single trial and Judgment upon a principal and ai» incidental or cross demand.— A «ui. 1198. The inscribing partjr must file in tfae'ofiiceof the court,, as soon as the required deposit has been made, an inscription for review, notice of which must be given to the <^»po8ite party or his attorney. The prothonotonr if then bound to forthwith tnuumit the Joeord. tog»iherimh a oopy of the judgoMals and orders ren. ered in the eaie, to the nrotlMBojtarj omT the Superior Oourt at the p1ac6 ^h^Ve Ihe case is to be heaxdi if it it not there AhrMidj.— C. C. P. 498. Review before Three Judges. 193 1199. The deposit and the iascription have the effect of staying the oxecutioa of the jud^raaeut and of suspending pro« eeedings on the appeal. — C. 0. P. 499, amended; CassiU vs. fair, 2 Q. B. R. 382. 1200. The provisions of Articles 279 to 285, concerning per- -emption of suits, apply also to review. Peremption has tlie effect of dismissing the inscription in review.— iV«w. 0. C. P. 1 168. 1201. If the suit is pending in the Superior Court at Quebec or Montreal, the protlionotary must sei down the case on the roll for hearing as soon as the inscription and notice are tiled ; or, if it is pending elsewhere, as soon as he receives the record. — C. C. P. 501, amended. 1202. The inscription is not made for any pariicular day ; l)ut the case must be heard, in its turn, on the day in the sittings in review next after the expiry of eight days from the day on which the notice of inscription was Hied in the office of the court in which the judgment was rendered. The court may, however, on motion, of which notice has been given to the opposite party, accompanied with an affida- vit establishing that the inscription in review of any cause was made with the view of unjustly obtaining delay, order that, after the expiry of the above delavs, it shall be heard, before its turn, on any day or days specially fixed for that purpose. Cases instituted in virtue of Paragraph 4 of Article 52 have precedence over all other cases ; but suchpreceu^nce does not continue wittiout leave of the court if the case is once called and is not proceeded with. — C. C P. 500, in part, 500a, amend, ed ; R. S. 5909, 5910 ; 59 Vic, c. 44, s. 2. 1203- The original judgment may bo confirmed, reversed or modified by all the judges who heard the case, or by a majority of them ; and, unless an appeal to Her Majesty is taken, their judgment, together with the record, must be sent back to the court in which the case was first decided, to be there registered as being the judgment in the suit, at tlie same place, in the same manner and with the same effect as if it had been rendered on the day upon which it was received by the prothonotary. — C. C. P. 502, in part, amended. 1204. Whenever any cause has been heard in review by three judges, and at least one of the judges who heard the same is present in court and ready to render any interlocutory or final judgment therein, then if any judge who heard the cause, and would be competent to sit in judgment therein, be absent by rea.4on of his appointment to another court, of illness, or any other cause, hut has addressed a letter to the prothonotary of the court, containing bis decision ia the case and signed by 13 ; i; i T H BS amm The Code of Civil Procedure. him, or bai, in testimony of his concurrence therein, signed a judgment to be delivered, and delivered by a judge so present, such judge is deemed to be present for the purpose of such judg- ment, aod the decision so transmitted and signed by him has the same effect as if delivered or concurred in by him in opea court— C. C. P. 502, in part. 1205. No change in the personal composition of the court, by the appointment of any assistant judge as puisne judge, or by the appointment of a puisne judge as chief justice, or by the resignation, death or appointment to another court of any chief justice or of a puisne judge or of an assistant judge, can have alone the effect of rendering a rehearing of any case necessary^ if a suflBcient number of judges who heard the case remain to render a judgment, either interlocutory or final. — C. 0. P. 5<)3. 1206. It a judge or an assistant judge, who has heard a case, together with other judges, is removed to another court, or is appt'inted chief justice or a judge of the same court, or of an- other court, or obtains leave of absence, he may render judg- ment, whether ii te.locutory or final, together with the other judges, as if no such change' had taken place.— C. G. P. 504. 1207. If by reason of the absence, leave of absence, disquali- fication or incompetence of any of the judges, or of any other cause, the order of advisement requires to be discharged, such discbarge may be ordered by the other judges or by any one of them.— Aetp. C. C. P. 1171. 1208. The Court of Review may exercise all the powers necessary for its jurisdiction, and make such orders as it may deem proper for the purpose of remedying any insufficiencies of the record, of staying proceedings in the court of first instance in cases from which the review has been brought, of regulating the necessary deposit, and of providing for all cases in which the law affords the party no special remedy.— iV«u;. G. C. P. 1177^ in part. CHAPTER LXI APPEALS TO THB COURT OF QUBBN's BBNOH 1209. Proceedings in appeal must be brought within six months from the date of the judftment, saving the cases pro- vided for by Articles 924, 1006, 1010 and 1020. This delay i; binding even upon minors, women under marital authority, persons interdicted or of unsound mind, and upon persons absent from the Province, when those who represent them, or whose duty it is to assist them, have been duly brought into the suit. if the party dies before appealing, the delay is computed Appeals to the Court of Queen's Bench. 195 ajj^ainst his heirs or legal representatives only from the day of his death. When judgment has been rendered bj dpfaalt. the delay is computed only from the expiry ot the time allowed for filing an opposition thereto.— G. C. P. 1118, in part, amended; 64 Vic, c. 48. 1210. Proceedings in appeal may be taken during the delay allowed for demanding a review before three judges, or after Eroceedings in review have been commenced, it the party who as taken such proceedings discontinues the same. — 0. C. P. 1118, in part; 54 Vic, c. 48. 1211. If the appeal is from an interlocutory judgment, it must first be allowed by one of the judges of the Cuuit^ Queen's Bench, upon a summary petition, accompanied with copies of such portions of the record as may be necessary to decide whether the judgment in question is susceptible ot appeal, and falls within one of the cases specified in Article 46 ; but tbo judge before whom such application is mademav, if he deems it advisable, refer it to the court then sitting, if the application 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 sucn rendering o*^ the judgment, and cannot be received afterwards.— C. C. P. 1119; 54 Vic, c. 48 ; 56 Vic, c 42, s. I. 1212. The petition must be served upon the opposite party, and, if required, is followed by a rule calling upon such opposite party to give his reasons against the granting of the appeal • and the service of such rule upon him has tlie etfect of suspend- ing all proceedings before the court from which the appeal is taken.— C. C. P. 1120 ; 54 Vic, c 48. 1213. Proceedings in nppeal are brought by means of an inscription filed in the office of tlie court which rendered the judgment, 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 from, a description of the sureties proposed, and a notice of the date, hour and place when and Tvhere the sureties are to appear to sign the bond. Such security must be given within five days after 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 opposite party may obtain from the prothonotary f\ certiHcate of default, and the inscription in appeal is thereupon held to be abandoned and of no effect, saving any recourse which may «pi)ertain to the appealing party. The coBtB incurred upon the proceeding so abandoned are 196 The Code of Civil Procedure. taxed bj the prothonotary .— A^tfu>, m^ar^ C. C. P. 1121;5t Vic, c. 48. 1214. On the day fixed in the notice, the appellant must (rive good and sufficient security that he will eflrectually prosecute the appeal, that he will satisfy the condemnation and pay all costs and damages adjudged in case the judftment apfiealed from is confirmed ; or else be must declare in writing in the office of the court whose judgment is apftealed from, that he does not object to the judgment rendered against him being executed, or he must file a copy of any judgment ordering provisional execution of the judgment appealed from, in which cases be is only bound to give security for the payment of the costs in appeal, if he fails ; and, if the judgment is reversed, the respond- ent who has caused the judgment to be execu'ed is tound to rerund to the appellant the net amount only of the moneys levied by execution, together with legal interest, or to restore the properly of which he was put in possession, to ther witu the rents, issuts and profits since.— C. U. P. 1122, ^ tended,- 54 Vic, c 48. 1219. The security must be received before a judge or the prothonotary of the court in which the judgment was rendered, who may swear the sureties offered, and ask them ary pertinent questions with respect to their sufficiency.--C. U. P. 1123; 54 Vic, c 48. 1216. When the security-bond has been executed, the protho- notary must forthwith transmit a certified copy of sucli bond and of the inscription to the clerk of appeals at Quebec or at Montreal, as the case may require. He must also forthwith make up and complete the record in the case, according to the forms prescribed by the court of appeal, with a list of all the papers which form part of it and a transcript of all the entries in the registers, the whole certified under the signature and the seal of the court, and, upon being paid his fees, charges and the cost of transmission, must remit them to the clerk of appeals. The clerk of appeals, upon receiving such records and papers, must send a receipt therefor to the prothonotary. — NeiVj in part. C. C. P. 1124, amended ; 54 Vic, c 48. 1217. If the copies of the inscription and bond are not forth* with transmitted, or if the record is not transmitted within fifteen days after the bond has been executed, aud the prothono- tary is in default, the appellant may obtain, from any judge of the court which rendered the judgment, a rule against him to transmit such documents or record. — 0. C. P. 1125, amended ; 64 Vic. c. 48. 1218. At any time after secarity has been given, and before the expiry of five days after the record has been received by the Appeals to the Court of Queen's Bench. 107 clerk of appeals, tlie apidlant and the respondent must each file a writ ten appearance in tl>e office ot ilie court of apnea), under penalty of being foreclosed.— C. C. P. 1126, amended; 54 Vic, c. 48. 1219. In default of tbe record being transmitted within fifteen days after tbe bond has been executed, the respondent may, upon producing a certificate from the clerk of apnealn to that effect, obtain a judgment discharging the appeals, unless tbe appel- lant proves diligence. — 0. C. P. 1127 : 54 Vic, c. 48. 1220. Unless the court otherwise orders, the respondent may, within eight days next after the period allowed to appear, set up by motion any exception resulting from : 1. Irregularities in tbe inscription or iu tbe service of the notice thereof ; 2. Insufficiency of the security-bond j 3. Non-existence or forefeiture of the right to appeal ; 4. Acquiescence in ^he judgment ; 5. Renunciation of the judgment.— C. C. P. 1128, amended; 54 Vic, c 48. 1221. The court of appeal during term, or any judge thereof, out of term, has power lo reduce excessive security, or to order new security to be given in place of any which has become insufficient.- C. C. P. 1129, amended; 54 Vic, c 48. 1222. If both parties seek redress against the judgment, their cross-proceedings in appeal may be joined.— C. C. P. 1130, amended ; 54 Vic, c 48. 1223- Within fifteen days after the judgment upon an excep. tion, if there is anv, to the proceedings in appeal, or within fifteen days after the expiry of the dolay for filing tbe appear- ance, each party must hie, with tbe clerk of appeals, a printed Jacium or case ; in default whereof the appeal mwy be declared abandoned, with costs against tbe appellant, if he is in default, or be heard tfx /)artc, if the respondent is in default.— U. C. P. 1131, amended ; 54 Vic, c. 48. 1224. As soon as the parties have filed their appearances, or after tbe delay to file the same has expired, if only one party has appeared, and the record has been received by the court of appeal, the case is set down upon the roll by tbe 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 bo present in court before tbe expiry of the delays mentioned in the preceding Article.— C. C. P. 1132, 1169, amended ; 54 Vic, c. 48 ; 58 Vic, c. 47, as. 2, 3. f 198 The Code of Civil Procedure. 1225. Appeals from interlocutory judgments must be in- scribed by the clerk of appeals, and be benrd by privilege in a summary manner without any factums being filed.— C. G. P. 1133; 54 Vic, C. 48. 1226. Articles 1193, 1194 and 1195 apply to proceedings in appeal.— C. C. P. 1154, 1155, amendei. 1227. Four judges of the Oourt of Queen's Bench constitute a quorum in appeal. Any lesser number of judges, or even the clerk in the absence of all the j'idges, 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 require the exercise of any judicial discretion. — 0. C. P. 1156, amended. » 1228. The judges in appeal may be' recused for the same causes and in the same manner as in the Superior Court. — C C. P. 1157, amended. 1229. Any judge who sat at the rendering of the final judg- ment in the cause, or of any interlocutory judgment appealed from, is incompetent to sit in appeal upon the same. — C. C. P. 1158, amended. 1230. No petition in recusation'is necessary if the cause of incompetency appears on the face of the record.— C. C. P. 1159. 1231. The Chief Justice, or, in his absence, the senior judge of the Court of Queen's Bench, may, by notice in writing addressed to the Chief Justice of the Superior Court, request the attendance 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 ; 3. When a rehearing of a case has become necessary because of its having been heard by four judges only, three of whom are nut agreed as to the judgment to be rendered.— C. C. P. 1161, amended ; R. S, 2302, 2303. 1232. In all such cases, the judges of the Superior Court replace those of the Court of Appeal ; and the Chief Justice of the Superior Court communicates with the other iudges of the latter court, and it is arranged between them which of them will replace any particular judge of the Court of Queen's Bench who is unable to sit.— G. 0. P. 1162, inpart. Appeais to the Court of Queen*8 Bench. 199 1233. The proTisions of the two preceding Articles apply like> wise in the cases of the disqualification, incompetency, deatbt Absence, leave of absence or illness, of the judge thus appointed to replace another. — C. 0. P. 1162, in part, amended. 1234. The powers of the replacing judge in regard to causes, of which he has taken judicial cognizance, are not Hffecfed by the return of the judge replaced, the expiry of his leave, or his ceasing to be incompetent, or by the appointment of a judge of the Court of Queen's Bench who would not be incompetent in the case.— 0. 0. P. 1163. 1235. Nevertheless, if the replacing judge has not heard the case upon the merits, the judge thus replaced may take cogniz- ance of the case and render judgment therein. — C. C. P. 1164. 1236. If the record in the case is incomplete, either by reason of the absence of any document, or of the inobservance of any material formalities, the court of appeal may, upon the sugges- tion of either party, order a writ to issue in the name of the Sovereign, addressed to the proper court, reqairing it to perfect the record, and to cause a duly certified return to be made to that effect. ~C. C. P. 1165. 1237. Interventions, continuance of suits, changes of attor- ney and other incidental proceedings take place in appeal, upon petition, according to the formalities prescribed by the «ourt.— C. U. P. 1166, amended. 1238. Discontinuance and disavowal in appeal are affected in the same manner and under the same conditions as in the Su- perior Oourt.~C. C. P. 1167, amended. 1239. The provisions concerning peremption of suits in the Superior Court apply also to appeals. Peremption of appeals has the effect of rendering the judg- ment appealed from final. — C. C. P. 116B, amended. 1240. The court may receive affidavits and documents relat- ing to any incidental proceedings in appeal, or may send the case back to the court from which toe appeal is taken, in order that «vidence may be made in regard to such matters— ^«ip. 1241. Judgment cannot be rendered in appeal unless at least three judges concur therein ; and judgment may be rendered «ven in the absence of one judge when the case has been heard before five judges. The provisions relative to judgments, contained in Articles 1203 and 1206, apply in similar cases as regards judgments to i)e rendered by the Court of Queen's Bench. Whenever a case has been heard by the full court or by a )i:i 'i II ' 'I 200 The Code of Ciiil Procedure. quorum of judgep, and at least three of liie judges who beard it are present in court and ready to render judfrment therein, then, if any judge who heard the cause, and wouM be competent to sit in judgment therein, be prevented by removal to another court, illness or other cause from being present, but has addressed a letter to the clerk of the court, containing bis decision and signed by him, or has, in testimony of bis concurrence therein,^ signed a written decision to be delivered by any other judge, such judge sliall be deemed to be present as regards such judg- ment ; and the decision so transmitted and signed by him has the same effect as if delivered and concurred in by him in open court.— C. C. P. 1170. 1242. If by reason of the absence, leave of absence, disquali- fication or incompetency of any of the judges, or any other cause, the order for advisement requires to be discharged, such discharge may be ordered by the other judges or by any one of them.— C. 0. P. 1171. 1243. The court may adjourn to any day or days in vacation, and from day to day, for the purpose of hearing cases or of ren- dering judgment.~C. C. P. 1172, amended : 54 Vic, c. 48, s. h- 1244. Judgment may be rendered by the court at any placo where its sittings are held other than that where the rase was heard, if the judges are of opinion that otherwise the parties will be exposed to unnecessary delay. In such case the court in term, or a majority of the judges in vaeation, orders the clerk to give notice to the interested parties at least three days before that on which judgment is to be ren- dered. Such judgment is entered and registered at the place where judgment would have been rendered in the ordinary course. — C. 0. P. 1173, amended. 1245. Evenr judgment in appeal must contain a summary statement of the points of fact and of law in tiie case, and th& reasons upon which it is founded, with the names of the judges who concurred therein and of those who dissented therefrom, and an adjudication as to the costs. — U. C. P. 1174, amended. 1246. The costs are taxed by the clerk of appeals, subject to- a revision of such taxation by u judge within six months either in term or out of term, after sufficient notice to the opposite party. Such revision cannot prevent or stay execution and the deci- sion of the judge in that behalf has tbe isame effect as a judg- ment of the court.— 0. C. P. 117?, 1247. Judgments in appeal are executed both for principal- and costs by the court of first instance ; and, for that pur- Appeals to Her Majesty. 201 rose, the record is sfot bnek to it, unlrs) a further Appeal to >» higher court has been moved tor.— C. C. I*. 1 17G. 1248. The court sitting in appeal may exercise all the powers necessary for such jurisdiction, and make s'.ich orders as it may deem proper for the purpose of remed^ving any insufliciencicd of the record, of staying pruceedingd in the court of first in- stance in cases appealed from, of regulating the putting in or renewal of security, an«l of providing tor all cases in which the law atl'ords the party no special remedy. It may also make and establish tariffs for any of its officers whose tees or salaries are not otherwise fixed. — C. C.P. 1177,. amended. CHAPTER LXII APPEALS TO HER MAJESTY 1249. The execution of a judgment from which an appeal is taken to Her Majesty in Her Privy Council cannot be prevented 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 efTectually prosecute the appeal, satisfy the condemnation, 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 the court which rendered the judgment. The sureties jtistily their solvency upon the real estate which is described in the bailbond. One surety suffices, if he is the owner of real estate, which he describes, equal in value to the amount of the security over and above all charges and hypothecs. The judge who receives such security may order, either on demand or otherwise, the production of the registrar's certificate, the valuation rolls and any other documents for the purposes of the security, and is bound to put such questions as be deems advisable to the sureties. Sucn (questions and the answers thereto may be taken down in writing. The appellant may, however, exempt himself from furni!>hing such security, by depositing an amount equal to that required for the security, either in money, in bonds of the Dominion or of this Province, or in municipal debentures, and such moneys, bonds or debentures are deposited either in the office of the court which rendered the judgment- or with the sheriff, as the judge may direct.— C. C. P. 1179, 1178a, in pari, amended; R. S. 6009, 6010. 1250. The appellant may also consent to the judgment being executed, and in such case may give security for the costs in appeal only, under the same conditions as under Article 1214. —C. C.P. 1180. 202 The Code of Civil Procedure. 1251. The execution of any judgment appealed from cannot he prerented or stayed after sii months from the day on which the appeal was allowed, unless the appellant Hies in the office of the clerk of the court which rendered the Judgment a certificate, signed by the clerk of Her Mf^esty's Privy Council, or any other competent officer, stating that the appeal has been lodged wfth- in such delay, and that proceedings liATe been had therein. — U. (J. P. 1181, 1178a, in part, amended; R. 8. 6009. 1252. The clerk of the court which rendered the Judgment must register any exemplification of a decree of Her Majesty in Her Privy Council as soon as it is presented to him fur ihat purpose, without requiring any order to that effect from the court which rendered the judgment, and must send back the record in the case to the court below, together with a copy of the exem- plification which has been registered as above-mentioned. — C. €. P. 1182, 1178a, in part, amended; R. S. 6009. NINTH PART INFERIOR JURISDICTIONS ri CHAPTBR LXni PROCRDDRR BBPORK THB COMUISSIONBRS' COURT FOR THB SOMMART TRIAL OP SMALL CAUSBB 1253. The commissioners cannot sit and hold their court separately and at the same time in the same locality. The court ma^' be hold by one commissioner, and several or all the commissioners may likewise- sit together. They must decide according to equity and good conscience and to the best ol their ability and judgment.— C. C. P. 1183. 1254. The commissioners have for keepinn; order during their sittings, and for enforcing the execution of their warrants, orders and judgments, the same powers as the other courts of the Province.— C. C. P. 1184. 1255. Thpy may be recused fbr the same reasons as judges of other courts.— C. 0. P. 1186. 1256. The recusation must be in writing.— C. 0. P. 1186. 1257. If all the commissioners are recused by either of the parties, the case is immediately transmitted to the nearest Com« missioners' Court, which decides upon the validity of the recus- Procedure Ifefore the VommisHonera' Court. «Uon, and afterwards hears and determines the merits of the case in tho event only of the reeusatici being maintained. But, it tha recusation is overruled, 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. —U. O.P.I 187. 1298. It may, in matters within its jurisdiction, grant : Interventions ; Attachments for rent ; Attachments in revendication Seizures by garnishment after judgment , Simple attachments or attachments by garnishment before judgment, tor si^ms exceeding five dollar?, tvhenrver it is 'diab lished by the affidavit of the plaintiff ot This agent ihat the defendant is secreting, has secreted, or is irame«i)ntely about to scint' his property, or absconds, or is immeilxuel^ about to leave the Province with intent to defraud his creditors. Such affidavit may be received by one of the commissioners or by the clerk of the court.— C. C. P. 1191. 1192, in part amendt'd. 1259. These proceedings mav be executed beyond the limits of the judicial district in which they are issued, provided an order of one of the commissioners, authorizing such execution within the district wbere it requires to be executed, is indorsed upun the warrant. Kveiy warrant of attachment for rent, attachment in revennniayacie evidence of their contents. — C. C.P. I215e, R. 8. 6013. 1288. Attaclments for rent, attachments in revendication, seizures by garnishment after judgment, simple attachments or ftttachments by garnishments before judgment, may be executed anywhere within this Province ; but in the case of seizures by garnishment, either before or after judgment, the garnisihee mav, within three days after the service of the writ upon him, make his declaration on oath before the clerk uf t^e nearest Circuit Court, who has power to admiriister such oath, and is entitled to receive from such garnishee the sum of one dollar for taking such declaration. He must transmit the sarre forth- with by post, in a registered letter, to the cK'ik of the Magis- trate's Court from which the writ of attachment issued, together with his receipt for the said sum of one dollar. — C. C, P. 1215/, amended; R. IS. 6013. 1289. The said sum of one dollar is taxed by the district magistrate or the clerk of the court, as forming part of the costs of the suit ; and the receipt of the clerk of the Circuit Court for the said sum, transmitted to the clerk of tho Magistrate's Court, 208 The Code of Civil Procedure, stands as a judf^ment of the said court in favour of the garnishee against the party seizing, and may be enforced by execution after the same delay and in the same manner as any other judg- ment of the court.— C.C. P. 1215<7; R. S. 6 13. 1290. No suits or proceedinjfs in civil matters before any such district magistrate, or before a Magistrate's Court, under this Chapter, can be removed to any other court, hy certiorari or otherwise.— C. C. P. 1215/t; R. S. 6013. 1291. Judgments rendered by the Magistrate's Court for sums exceeding forty dollars may, in default of moveable pro- perty, be executed upon the immoveables of the debtor. The writ is addressed to the sheriff of the district in which the immoveables are situated, is returnable before the Superior C»)urt of such district, and is there proceeded upon in the same manner as like writs issuing from the Circuit Court. — C. C. P. 1215 ii R. S. 6013. CHAPTER LXV KKMKDIES AGAINST THE PROnREDIXOS AND JUDGMENTS OF COURTS OF INFERlOil JURISDICTION 1292. In all cases where no appeal is given from the inferior courts mentioned in Articles 59, 63, 64 and 65, the case may bo evoked before judgment, or tha judgment may be revised by means of a wvhoi cer/iorari, unless this remedy is also taken away by law.— C. C. P. 1220. 1293. The remedy lies, nevertheless, only in the following cas"s : 1. When there is want or excess of jurisdiction j 2. When the regulations upon which a complaint is brought, or the judgment rendered, are null or of no effect ; 3. When the proceedings contain gross irregularities, and there is reason to believe that justice has not been or will not be done.— C. C. P. 1221. 1294. The writ of certiorari can only be granted upon peti- tion, supported by an athdavitof the facts and circumstances of the case.— C. C. P. 1222. 1295. A previous notice of time and place at which the peti- tion will be presented must be served upon the functionary seized of the case, or who rendered the Judgment, as well as upon the other parties in the case.— C. C. P. 1223, amended, 1296. The service of such notice on the functionary seized of the case, or who rendered the judgment, has the effect of sus* pending all proceediags in the court below. — C. C. P. 1224, amended. l^. Remedies against Proceedings and Judgments. 209 1297. The petition must be presented to a judge of tbo Superior Court or of the Circuit CJourt. The opposite party is entitled to appear and make anj oral obJ3ctions of a nature to prevent the granting of the writ. — C. C. P. 1225, amended. 1298. Wr'ns of certiorari are clothed with the formalities re- quired for writs of summons, and command the funct'onary to whom they are addressed to cartify and transmit, within a tixed delay, all the papers connected with the case, by whatever names the parties may be therein designated.— C C. P. 122G, u.Tiended. 1299. Mention must be made on the back of the writ that it has issued by order of the court or judge. — C. C P. 1227. 1330. The writ is served upon and left with the functionary to whom it is addressed ; and, if it is addressed to a court com- posed of several functionaries, it is lefi with one of them. Such service suspends all proceedings before them under pain of being liable for contempt of court. The return of such service is made upon a certified copy of the writ.— C. C. P. 1228. 1301. The persons to whom the writ is addressed are bound to comply with it by annexing to it all the papers demanded, and certifying their return on the back of the writ. — C. C. P. 1229. 1302. If they fail to comply with the writ, they are liable to coercive imprisonment, in the ordinary manner. — C " C. P. 1230. 1303- Notice of the issue of the writ and of the day fixed for its return must be given to the opposite party. — Neio. 1304. If the opposite party has not already appeared and ii^an appearance in the ordinary form, be may do so imme- diately after the writ is regularly returned ; and thereupon the case may be inscribed on the roll by either party, to be heard in the ordinary manner.— C- 0. P. 1231. 1305. All interlocutory or final judgments upon writs of certiorari are drawn up and served in the same manner as in ordinary suits.— C. C. P. 1232. . 1306. No appeal lies from the judgment on the application for the writ of certiorari or from the judgment on the writ it- self; nor are such jadgments subject to review. — C 0. P. 1234. 1307. The procedure regulated by this Chapter applies also to all other cades in which the writ of certiorari will lie, and U :SfiS 210 The Code of Civil Procedure. flgninst any other inferior court not referred to by Article 1!92 ; bill It does not apply with respect to any court exercising vice-'idiniralty jurisdiction, over which the Superior Court or the Circuit Court hAs no conirol. — C. C. P. 1235, amended. TENTH PAET NON-CONTENTIOUS PROCEEDINGS CHAPTER LXVr GKNEBAL PROVISIONS 1308. In all proceedinprs under the provisions of the Tenth Part of this Code, the delays upon summons are the same as those prescribed for ordinary matters. — C. C. P. 1337, amended 1309. All applications made or proceedings brought before « judge mu3t reinaiu among the record? of the court and form part thereof.— C. C. P. 1338. 1310. The prothonotary of th'^ Superior Court may exercise all the powers conferred upon the court or a judge thereof; but any deci^iion by such prothonotary is subject to be revised by a judge upon application being made to that effect, after notice given to the persons interested.— C. C. P. 13;]9. CHAPTER LXVII RKGISTERS AND THKIR AUTHENTICATION SECTION I Regislers of Civil Status 1311. AH registers intended to record births, marriages Rnc deaths or religious profession must, before being used, je numbered upon the first and every subsequent leaf, with the (number of the leaf written in words, at full length, and be T*ealed with the seal of the Superior Court or of the Circuit Court, by affixing the same upon the two extremities of a rib- bon or other such fastening, passing through all the leaves of the register and secured inside of the cover thereof; and upon the first leaf must be written an attestation under the signature of the judge or the prothonotary of the Superior Court of the district, or of the clerk of the Circuit Court of the county, which «om,i)rises the Roman Catholic parish, church, private cbapel or mission, the Protestant cbareb, or religiouc congregation or Registers and their Authentication, 211 society authorized to keep such rejristers, and for which thejr are to serve, and to whirn they belong, specifyiDt; the number of leaves contained in the register, the purpose for which it is intende i, and the date of such attestation. Such certificate cannot, however, be given until the formal- ities prescribed by special acts with regard to certain religious congregations iiave been fulfilled.— C. 0. P. 123G ; R. S. 6014. 1312. The diipiioate legidter which is to remain in the hands of the priest, minister or person doinjr the parochial or clerical duty of eacli Roman Catliolic parish, church, Protestant or religious congregation, must be bound in a substantial and dur- able manner. A copy of the title " Oj Acts (f Civil Status^' in the Civil Code, and of the first, second and third chapters of the title "0/ Alarriaqe," in tlie same Code, must be afached to such duplicate.— 0. C. P. 1237. 1313. Curds, churchwardens of /a&n^Mes, and other such administrators, in places where baptisms, marriages and deaths have taken place, and also thesuperiorof communities in which vows of religious profession have been made, art* respectively botmd to fulfil the requirements of the laws with regard to the registers of acts of civil status, and may be compelled to do so by siicli means and under such pains, penalties or damages as the law allows.— C. C. P. 1238. 1314. Any person who desires to have any register rectified must present to the judge a petition for that purpose, stating^ the error or omission of which he complains, and praying that the register may be rectified accordingly. The petition must be served upon the depositary of such register.— C. C. P. 1239, amended. 1315. The judge may also order the petition to bo served upon anv person whom he deems interested in the application. — (j. C.'P. 1240, amended. 1316. Any judgment ordering a rectification must contain an order for the inscription of such judgment upon the two regis- ters, and no copy of the act rectified can thereafter be delivered without the corrections thus ordered to be made. — C. C. P, 1241. I SECTION II Registers of Registry Offices 1317. Every register of a registry office, of which the law; requires the authentication, must, before aa .eDt,ry is mi^de' therein, be authenticated by an attestation, written. on V^ mi 1: K II V. 212 The Code of Civil Procedure. first pajre, and signed by the prothonotary of the district in whicD the register is to be used ; and such attestation must mention the purpose for which such register is intended, the number of leaves contained therein, and the date of the attest- ation. Each leaf must be nurobe ed in words, written at full length and the prothonotory must write thereon the initial letters of his name. — C C. P. 1242, amended. SKCTION in Registers of Sheriff's and Coroners 1318. The sheriff' and the coroner of each district must keep a duplicate register for transcribing and registering therein all deeds or acts of sale made by them of real property in their offi- cial capacitj-, and, when such register is filled, one of the dupli- cates thereof must be deposited by such sheriff" or coroner in the office of the Superior Court for the district.— U. C. P. 1243, amended. 1319- Such registers must be authenticated in the same manner as those of the registry offices mentioned in Article 1317, —0. C. P. 1244. CHAPTER LXVIII INSPECTION OF NOTARIAL DOCUMENTS 1320- Notaries are bound, upon payment of their lawful fees and dues, and without any judge's order, tugive communication or copies of or extracts from any act or document forming part of their official records, to the parties or to their heirs or legal representatives.—C.C. P. 1245. 1321. They are not bound to give such communication, copies or extracts to other parties withoutan order from a judge, unless it is ot such a nature that it should be registered. — G. 0. P. 1246. 1322. If the notary refuses to give such communication, copies or extracts, as required, the person demanding the same may, by petition daly served upon tlie notary, apply to a judge for an order for iDspection, which is granted upon proof of his rightor interest.— 0. C. P. 1247. 1323. If commtinication only is demanded, the order fixes the day and hour when communication of the act must be given. ir a copy oir eztiteet is demnnded. the ord^r fixed the time at HrhicliitvlQlBtlbbfViritisbisd.— 0. O.P. U48. Family Couneils. 213 I 1324. The service of the order of the judge upon the notarj Tniist ffive a sufficient delay for a compliance with such order.— ii. C. P. 1249. 1325. The copy or extract must be certified to have bed: delivered in compliance with the order ; and tlie notary men- tions the fact at the foot of the copy of the order that was left with him.— C. U. P. 1250. 1326- If the notary fails to comply with the order of the judge, he is liable for all consequent damages, and to coercive imprisonment.— C. C. P. 1251. 1327. AVhen the original of any authentic act or of a public repistt. has beer, lost, destroyed or carried away, and any au- thentic copy or extract thereof 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 will name, to be there used and considerpdas an original, the copies of which will be deemed authentic— C. C. P. 1252. 1328. A similar application may be made by any party to a deed, in order to compel any other party thereto, who is in pos- session of an authentic copy or extract thereof, to deposit sucli 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 requiring such deposit must bear the costs and ex- penses 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. — C. C. P. 1253, amended. 1329. The petition must bo served upon all other interested parties mentioned in the act.— C C. P. 1254. 1330. Upon satisfactory proof, the judge orders the document produced to be deposited in the pruthouotary's or notary's office, or other public office in which the original was, or if it is a notarial act, forming part of the records of a notary who is dead or has ceased to practise, then in the place in which the records of such notary are deposited ; and every copy of the document thus deposited avails for proof in the same manner as if sucli document was the original. — (J. C. P. 1255, amended, CHAPTER LXIX Ml Hi I FAMILY COUNCILS 1331. Whenever application is made to provide minors, in- terdicted persons, absentees or substitutes, with tutors, or tutors ad hoe, or subrogate-tutors, or curators, or to authorize such I 214 The Code of Civil Procedure. tutors or ciirHtors lo do some ])nrtioiilnr act, or for leave ta alUnnte ininiovoHblea belonging to jiorsons who have not the free erercise of iheir rights, or tor the emancifiation of minors, or to Hppoint judicial advisers, the judge or the court cannot act without previously having taken the advice of a family council.— C. 0. P. \25{i, amended. 1332. Fjimily councils arecon\ened flnd composed in the manner provided in the ninth title of the first book of the Civil Code.— 0. C. P. 1257. 1333. Any person demflnding the convocation of a family council must show that he has used due diligence to summon the nearest relatives residing in the district, and the delay for such notice is one intermediate day, when they reside at a distance less than fifteen miles from the place where the family council is to meet, with the usual additional delay when the distance exceeds fifteen miles.— C. C. P. 1258, amended. 1334. Before giving their advice upon the matters submitted to them, the relatives and friends must be sworn before the pcrsoa by whom they are convened.— C. C P. 1259. 1335. The minutes of the advice given by the relatives and friends must be signed by them, or mipointmpnt of curators to substitutions nre the sjinieus tho«.^ for the appointment of tutors to minors.— C. C. P. 1205. CHAPTER LXXI SALE OF PROrBUTY BKLONCINP, TO MINOHS AND OTHER DISQUAL1K1KI» PKR.SONS SKCTION I 0/ Property Exceeding Four Hundred Dollars in Value. 1341. No voluntary alienation of immoveable property, or of shares or stock in financial, commercial or industrial cotii panics, belonging to minors or interdicted persons or to substitution^, can be mude without the order and permission of the judge. — C. C. P. 1267, amended. 1342. Before the advice of the family council is taken, the immoveable must be inspected by two experts, appointed, one by a tutor and the other by the subrogate-tutor, if the immove- able belongs to a minor; if it belongs to an interdicted peison, one by the curator and the other by one of the relit tivc* nearest of kin to, or, in default of relatives, by a friend of such person ; and if it belongs to a substitution, one by ther curator to the substitution, or by a substitute of full age and capacity, and the other by the institute. Such experts must not be related either to the parties or to- the persons acting for them.— C. C. P. 1268, amended; C. S, L. C, c. 48, 8. 1. 1343. The nomination of experts maybe made under the sanc- tion of the judge or of the notary before whom the application is made to have a family council convened. — C. C. P. 12G9. 1344. The experts, after being sworn before the judge, prothonotary, dark, or notary, must ascertain the condition and value of each immoveable, and verify the other circumstances on .'\cconnt of which the sale is demanded, and make a writtert report thereof. -C. C. P. 1210, amended. 1345. If the experts cannot agree, each must report his re- spective opinion, giving the reasons upon which such opinion is based.— C. C. P. 1271. 'I 216 The Code of Civil Procedure. 1346. The report is aubraitted to the family council, togc» tber with the applicAlioD to be authorized.— C. C. P. 1272. 1347. If the matter relates to the investment of moneys or to shares or stock la financial, commercial or industrial com- panies, the value thereof must be ascertained.— C. C. P. 127;<, aniend^J. 134&- If the application is based upon the ground of neces- sity, the authorization can be gnuited only upon the production of an account prepared in the manner prescribed by Article 208 of the Civil (Jodc—New, C. C. 298, in part. 1349. Th(^ order authorizing the sale must fix an upset price for each immoveable, share or stock, saving the provision of Article 1350, and, independently of the other conditions imposed upon the sale, such upset price cannot be less than tl:e value ascertained.— (j. C. P. 1274, amended. 1350. If authorization to sell is refused, the reason for such refusal must be piven in writing and form part of the record. — C. 0. P. 1275, amended. 1351. The sale must be made judicially in presence of the subrogate-tutor or of the curator, as the case may be, to the highest bidder, by public auction before the court, judg?, pro- Ihonotary or any other person specially appointed for that purpose.— AVw, * 0. C. 29i>, in part. 1352. A notice containing a description of the immoveables, and mentioning the place, day and hour of the sale, must be published in the following manner: 1. When the immoveables are situated in the city of Quebec, Montreal, Three Rivers, Sherbrooke, St. Hyacinthe or Sorel, or in the town of St. Jolui's, by inserting such notice, at the latest, fifteen days before the sale, in a newspaper published in French and in 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 inserting it in both languages in the same newspaper; or 2. When the immoveables are situated in a parish other than those 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- mediatelv after morning service, or, if there is no church, at the most public place in the locality. If there is no service, it h sufficient to merely post the notice.— C. G. P. 1276, amended. 1353. The notice of sale in the case of shares or stock in financial, commercial or industrial companies is given in the manner prescribed by the order granting the authorization.—- JS/ew. C.i}.2»9, in part. 1! Sale of J^opert}/ Belonging to Minors, 217 1354. If no higher price is offered than tho upset price, 1h« person applying for the saU' may proceed to effect a nrivaie s«!e, t)ut he can only do so within the four montlis which follow the authorization, and for a sum not less thiin the upget price. — C. C. P. 1277. 135i>. Tn toe case of a voluntaiy licitation of an immove able, held undividedly between ii tutor and his pupil, and which canuot be advantageously divided, prooecdinRS are had in the manner above-mentioned, and nu purchase of it by the tutor iti valid unle.ss the minor is represented ut the sale by a tutor ad hoc.—i^. C. P. 1278. 1356. In the case of sale of securities, such as capitr»i sums, shares or interest in linancuil, commercial or industrial com- panies or public securities belonginjf to minors, interdicted persons or absentees, or to substitutions, the juerson or to a substitution, does not exceed the sum of four hundred dollars, the judge may, upon petition presen'ed to him to that effect by the tutor and sub- rogate-tutor of such minor, or by the curator of such disqualified person, or by the institute or the curator of the substitution, or a substitute of full age and capacity, as the case may be, after makmg summary inquiry 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 reasonable to fix, in the interest of such miuor or disqualified person.— C C. P. 12786; R. S. 6016. 1358. The judge has power to issue under bis hand an order to compel the appearance before him, without costs, of any per- \ A f.. 218 The Code of Civil Procedure. son ■whom he deems qualified to afford him the information ne- cessary to determine the value. Any such person refusing to comply with such order becomes guilty of contempt of court.— C. C. P. 127Sc; R. S. 6016. 1359. The notice of the sale is governed tainedin Articles 1352 and 13.53.— C. C. P S. 6016. by the rules con- R. 1278f/, amended; 1360. The judge may, when he deems it advisable, exempt the petitioners from the necessity of publishing the notice men- tioned in the preceding Article, and authorize them to s"ll such property, by mutual consent, to any person paying the price fixed by such judge.— C. C. P. 1278c/ R. S. 6016. SECTION HI General Provision 136.1. Any person charged with the sale of property belong- ing to a minor or other disqualified person, or to a substitution, must prepare a report of bis proceedings, and return the same into the office of the Superior Court, together with his proceed- ings. Such report and proceedings remain deposited in the office ot the Superior Court. CHAPTER LXXri. PUOCEEDINGS RELATING TO SUCCESSIONS. SECTION I Seals § 1. —AFFIXING SE.ALS 1362. Seals can be affixed on the property of a succession so long only as an inventory thereof has not been made.— U. C. P. 1279. 1363. Whenever seals are required to be affixed, a commis- sioner is named for that purpose by the judge upon the appli- cation of any party interested. — C. C. P. 1280, amended. 1364. The affixing of seals may be demanded : 1. By all those who lay claim to ti.e succession of the deceas- ed or to a community dissolved by the death of one of the con- sorts ; 2. By the creditors ; Proceedings relating to Successions. 2ir> 3. By the testamentary executor; '.. Hy the Crown, when there are no heirs, or when the pro- perty is confiscated. — C. C. P. 1281. 1365. The commissioner must draw up minutes of the pro- ceedings in affixing seals, in wiiich he must sta'e: 1. The date ; 2. A designation of the person requiring the seals and th& nature of his right ; 3. The judicial order authorizing the affixing of seals ; 4. The attendance and the declarations of the parties ; 5. A description of the places, bureaus, chests or closets, owr the openings of which the seals are affixed ; 6. A summary description of all articles found in view and placed under seals ; 7. The takinpc, at the close of the affixing of seals, of the uatli of the parties residing on the premises, that nothing has bein, either directly or indirectly, taken away by them or with their knowledge ; 8. The names and designations of the persons in whose cus- tody ihe things under seals have been placed, and with whom a copy of Ihe minutes must be left ; 9. The signing of the parties present, or their being called upon to sign and the reasons which prevented them from doing 80.-0. C. P. 1282. 1366. The seals are affixed upon each extremity of a band passing over the keyho'- of the lock, if there is one, or, if nor^ passing over the joint of the opening of the apartment or recept- acle containing the effects, in such a manner that it cannot be opened without breaking the band or removing the seals. — C. C. P. 1283. sealed, the commissioner, after sealing it himself, must deposit it in the office of the court, together with his minutes, in order that probate may be effected at the instance of the persons in- terested. — 0. C. P. 1284, amende J. 1368. When the commissioner finds the doors fastened, or is refused admittance, he must report the fact to the judge, who 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. The commissioner may, in the meantime, place guards around the premises in order to prevent fraudulent removals. — C. C. P. 1285, amended. ^ II \ ft , )i jH 5 f i 1^ -■ i ^i ' 1 fl II „(i 1 i| ^ ' Mm i I 220 The Code of Civil Procedure. 1369. If; after be has entered the bouse, tbe commissioner meets witb a declnration of opposition, be must mention it in his minutes, in order that the matter may be referred to tbe judge; but he must place guards in tbe meantime to prevent fraudulent removals— C. C. P. 1286. 1370. The judge decides forthwith upon the opposition, either by countermandfng or restrictmg the affixing of seals, or by ordering the proceedings to continue.— C. C. P. 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. — C. C. P. 1288. 1372. If there are no moveable effects, the commissioner must state so in his minutes.— C. (J. P. 1280. 1373. As goon as the commissioner has complf^ted his minutes, he is bound to deposit tliera in the office of the court to form part of the records thereof.- C. C. P. 1290. 1374. No second affixing of seals can take place, unless the first has been i"Tipugned as null. In aftixing seuls the second time, the bands are placed across those of the first sealing.— (J. U. P. 1291. § 2.— KEMOVAL OP SEALS 1375. All applications for the removal of seals, when con- tested, and all oppositions made after the affixing of seals has been completed, are beard summarily, unless the pleadings are ordered to bo in writing.— C. C. P. 1292. 1376. If the affixing of seals is declared null, an order is given at the same time commanding the commissioner who affixed them, or some other person, to remove tiiem without any inventory, and to make a return of such removal : and, in default of this order being complied with, any bailifl" holding a copy of the order may break them and make a return of his having done so.— C. C. P. 1293. 1377. If, however, seals have been affixed a second time, the complete removal cannot take place until both sealiugs have been adjudicated upon.— C. U. P. 1294. 1378. If seals have been affixed before the burial of the deceased, they cannot be removed before tbe expiration of three days after such burial, except for urgent reasons, which must be stated in tbe order which authorizes the removal. — (J. C. P. 1295. Proceedings relating to Succesaions. 221 1379. The removal of seals from the whole or from a part of the property may be demanded by such persona as mny demand to bave them affixed, and also by any person claiming to be owner of the effects placed under seals, according to their respeclivoi rights ; and the right to prosecute such demand belongs to him who first makes it. — C. U. P. 1296. 1380. The removal of seals must be applied for by petition to the judge, in order that the inventory may be proceeded with alter notif.>ing all persons interested. — (J. (J. P. 1297. 1381. The judge, when authorizing the removal of seals. orders (hat an inventory of the effects shall forthwith be made, after summoning, by a bailiff's notice, or a notice in notarial form, the heirs of the deceased, the surviving consort, the testamentary executor, and all known legatees. Nevertheless, if the persons entitled to be present at the removal of seals, or to take part in an inventory, reside outside the Province, they need not be summoned. In such case a judicial procurator is named by the judge, on application of the person demanding the removal of seuls, or the making of an inventory, to represent such persons ; and notice must be given such judicial procurator to be present. Notwithstanding the nomination of a judicial procurator to represent the persons above-mentioned, such persons or any of them may also be present and take part, or may send a power of attorney to the judicial procurator, or to any other person, if they think fit to do so. Such appearance or appointment of a mandatary terminates the mandate of the judicial procurator. — C. U. P. 1298; R.S. 6017. 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.— C. C. P. 1299. 1383. The seals are removed in succession, as the making of the inventory progresses. If the effects under seals are not all inventoried at one time, the seals are reattixed upon the remainder. — C. C. P. 1300. 1384. One or more returns of removal of seals must be made, as the inventory progresses. — C. C. P. 1301. 1385. The return of removal of seals must contain : 1. The date ; 2. The names, residence and occupation of the applicant, and hi9 elected domicile ; 3. A recital of the Order for removal ; 4. Mention that the notices required by Article 1360 have keen given ; hi I ■I, i I b t ( 222 The Code of Civil Procedure. 5. Mention of the persons present, and their respective allega- tions ; 6. The names of the notary or notaries charged with making the inventory, and of the appraisers ; 7. The verification of the seals, if they were unbroken ; if not, the state in which they were found, saving recourse against tvhoever may be liaWe.— C. C. P. 1302. 1386. If papers or effects are found, which do not belong to llitj successiun or the cumniunity, and wliich are claimed by third ])crsong, they ari delivered to the proper persons, after describ- ing- them in the return, if such description is demanded.— €. C.P. 1303. SECTION II Inventories § 1. — MAKINti OF THE INVENTORY, 1387. The formalities and proceedings prescribed by the proseiit Sect'on ap))ly to all cases in which an inventory is re^ quiivd.— C. C. P. 1314. 1388. An inventory of the property belonging to a deceased ]iers')n, or to a community dissolved by his death, may be ■ /':.;e of sale must also be published and posted in the same > -meras in cases of sale of moveable property under ezeCu- •wu.-C.C.P. 1320. Proceedings relating to Successions. 225 SECTION III Benefit of Inventory 1405. Benefit of inventory can only be granted upon petitioa to the judgC; stating that an inventory of the pro|)erty of the succession will be or has been made, that the petitioner has not acted as heir, and that he bdievos it in his interest not to con- found ;.his rights with the obligations of the si'ccession. — C. C. P. 132 1. 1406. The beneficiary heir is b junrl to give notice of his quality as such, by an advertisement in the form contained in tSchedula JJ in the Appendix to this Code, publishel at least twice in two newspapers designated by the judge. — C. C. P. 1322, amended, 1407. Benefit of inventory is granted only on condition of rendering an account and paying to such person as may bo entitled thereto whatever money i may be received ; and the beneficiary heir must, if thereunto required, as provided by Article 6G3 of the Uivil Code, give security to the amount and in the manner fixed by the judge.— C. C. P. 1323 ; R. S. 6019. 1408. An heir under benefit of inventory cannot sell the moveable property of the succession without observing the same formalities as in the case of successions in which minors are concerned — C. C. P. 1324, amended. 1409. He may sell the immoveables or the shares and stock in financial, com iiercial or industrial companies, by observing the formalities provided ty law for the sale of property belong- ing to minors or other disqualified persons, on the advice of tlie parties interested, present at a meeting convened for that pur- pose, in the manner prescribed by the judge. Such sale cannot take place in the case of immoveables except with the consent of all the hypothecary creditors. — 0. 0. P. 1325, amended ,• R. S. 6020. 1410. In cases where the beneficiary heir has any claims to exercise against the succession, he must cause a curator to be appointed, the same formalities being observed as are pre- scribed for the appointment of curators to vacant successions.— C. C. P. 1326. SECTION IV Letters of Verification 1411. Whenever, in this Province, an abintestate succes- sion devolves, having property situate outside of its limits, or 15 1 if t ! 4 \ f 2M The Code of Civil Procedure, I I ; rH debts due by persons not residing therein, anyone or more of the heirs may a|iply to the judge in the distrct in which the de- ceased liad bis domicile, or, it be bad no domicile in the Province, to ELEVENTH PART ARBITRATIONS CHAPTER LXXIII AHHITRATIONS to jere in ind his rui, |uch are K J of >urt 1431. Submission ia an act by which persons, in order to pre- vent or to put an end to a hiwsuit, agree to abide by the deci- sion of one or more arbitrators whom they agree upon. — C. U. P. 1341. 1432. Those persons only c»n enter into a submission who have the legal capacity to dispose of the objects comprised ia it.— C.C.P. 1342. 1433. The appointment of arbitrators by the court is reguhit- ed in Articles 411, 412 and 413 of this Code.— C. C. P. 1343. 1434. Deeds of submission made out of court must state the names and additions of the parties and arbitrators, the objects in dispute and the delay withm which the award of the arbitra- tors must be given.— C. C. P. 1344. 1435. Submission must be in writing. — C. C. P. 1345. 1436- The arbitrators must hear the parties and their proo.^ respectively, or establish a default against them, and decide ac- cording to the rules of law, unless by the submission they hav(^ been exempted from doing so. If they have been appointed at the same time as mediators, or as mediators only, they are not required to decide according Xo the rules of law. The witnesses to be examined before the arbitrators may be sworn before the prothonotary or the clerk of the Circuit Court of the locality, or before a commissioner of the Superior Court- —U.C.P.lSiGj amended. 1437. During the delay fixed by the subihission the appoint- ment of the arbitrators cannot be revoked, except with the con sent of all the parties. If the delay is not fixed, either of the parties may revoke the submission when he pleases.— C. C. P. 1347. 1438. The submission becomes inoperative : !• In the case of death, refusal, withdrawal or inability to act of one of the arbitrators, unless some clause prorides that ii 230 The Code of Civil Procedure. shall avail notwithstanding, or that such arbitrator shall be re- placed by another cbosea bj the parties orb/ the remaining arbitrator or arbitrators, or othervvise ; 2. In the case or the decision not being given before the expir- ation of the delay fixed ; 3. By the failure to agree, if the appointment of a third arbi- trator has not been provided for ; 4. By the mutual consent of the parties ; 5. By the loss of the thing which forms th'> subject of the sub- mission ; G. By the extinction of the obligation which formed the sub- ject of the submission ; 7. By revocation in the case of the preceding Article. — 0. U. P. \:m. 1439- Arbitrators cannot be recused except for reasons which have arisen or have been discovered since their appoint- ment.— 0.0. P. 1349. 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 examin- ed anew.— 0. C. P. 1350. 1441. No award of arbitrators can be rendered when there arc more than one, unless the two named, or one of these and the third arbitrator, agree upon each item of the award. — 0. C- P. 1351. 1442. The award of the arbitrators is made out in notarial form or deposited with a notary, who 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 fixed by the submission. — 0. C. P. 1352, amend- ed. 1443. Anv extrajudicial award of arbitrators can only be executed under the authority of a competent court, upon a suit brought in the ordinary manner to have the partv condemned to execute it.— 0. 0. P. 1353. 1444. The court before which such a suit is brought may examine into amy grounds of nullity which affect the award, or iuto any questions of form which may prevent its being homologated, but it cannot inquire into the merits of the contest- ation ; nevertheless, when a penalty has been stipulated in the submission, the court may do so whenever the party contesting has paid or tendered the ansiount of the penalty either to the party who accepts the award or into court. — 0. C. P. 1354. SCHEDULE A FORMS OF DMLARATION (ART. 123, § 2) 1. — Action on a Deed of Sale Provincs of Quebec, District of No. SUPERIOR COURT A. B. vs. C. D. PlaiatiS ; Defendant. The plaintiff claims $ from the defendant, as the Amount due by the defendant under a certain deed of sale passed at , on , before notary ; and prays for judgment for that sum, with interest from and costs. (Oale,) G. H.. Attorney for PlaintifiT. 2. — Action on a Deed oj Obligation (title of case) The plaintiff claims $ from the defendant, as the amount due by the defendant under a certain deed of obligation passed on at , before notary,: and prays for judgment for that sum, with interest iVom and costs. {Date.) G. H., Attorney for PlaintiS: i I 1 1 } i! * ■ * I I ' 232 The Code of Civil Procedure. 3. — Action on a Bill of Exchange by an Indorsee against the Acceptor (titlb or case) The plaintiff claims $ from the derendant, as the amount of a bill of exchange, dated , drawn by , accepted by the defendant, payable months after date, to the order of , and indorsed to the plaintiff; and prays for judgment for that sum with interest from and costs. {Date.) G. H., Attorney for Plaintiff. 4. — Action on a Bill of Exchange by an Indorsee against the Draiver and the Acceptor (titlb op cask) The plaintiff claims $ from the defendants, as the amount of a bill cf exchange, dated , drawn by the defendant , accepted by the defendant , payable at months after date, to the order of , and by him indorsed to the plaintiff, together with $ as costs of protest, whereof the defendant, , had due notice ; and prays for judgmi nt againsi the defendants jointly and severally for the said sums, with interest from and costs. (Date.) G. H., Attorney for Plaintiff. 5. — Action on a Promissory Note (TITLR or CASE) The plaintiff claims $ from the defendant, as the amount of a promissory note, dated , at , signed by the defendant payable mouths after date ; and prays for judgment for the said sum with interest from and costs. (Date.) G. H., Attorney for Plaintiff. 1/ Appendix, 233 6. — Action On a protested Promiasorif Note ajainst the Maker and tlie Indorse r (title of case) The plaintiff claims $ from the defendants, as the amount of a promissory note, signed by the defendant, , indorsed by the defendant , dated at , payable at months after (date), together with $ , costs of protest, whereof notice was given to , the iudorser ; and prays for judgment against the defendants jointly and severally lor the said sums, witb interest from and costs. (Date.) G. H., Attorney for Plaintiff. \ M^ lli':}- 7. — Action on a Private Writing (title of cask) The plaintiff claims $ from the defendant, as the amount due for goods sold and delivered to by the plaintiff, at , in pursuance of a guarantee signed by the defendant at on and addressed to the plaintiff; and prays for judgment for the said sum with interest from and costs. (Date.) G. H., Attornev for Plaintiff. y Ite ; lorn 8. — Action on an Account (title of cask) The plaintiff claims $ from the defendant, as the price (or value, as the case may be), of goods sold and delivered (or for services rendered, or as the case may he), to the defendant at the times and places, and for the several amounts stated in the accou i. herewith produced ; and prays for judgment for that sum, with interest from and costs. (Date,) G. H., Attorney for Plaintiff. m\ IfJ 234 The Code of Civil Procedure. SCHEDULE B X-OUM FOR PnBLIOATION OF SUMMONS IK NEWSPAPERS (ART. 136) I SUPERIOR COURT A. B., of the {domicile and occupation), Plaintiff; PROVING! or Quebec, District of vt. C. D., of the (residence), Defendant. The defendant is ordered to appear within one month. {Date.) E, F., P. S. 0. SCHEDULE C FORM OF AFFIDAVIT OF SERVICE B7 A LITERATE PERSON (ART. 137) A. B., of , being duly sworn, doth depose and say : I served the within writ of summons, and the declaration thereto annexed, on C. D., the defendant {or as the case may be) therein named, on the ,18 , at o'clock, in the , at , in the Province of , by delivering to him personally a true copy of the said writ and declaration {or, as the case may be, by leaving a true copy thereof for the said C. D. with a reasonable person of Ai« family At Ai« residence at ). And I have signed- Sworn before me, at , 18 , J. P. A. B. Commissioner or Justice of the Peace. SCHEDULE D FORM or GENERAL DENIAL (ART. 202) (title of case) The defendant denies all the allegations of the declaration, and prays for the dismissal of the action with costs. {Date.) G. H., Attorney for Defendant. Appen4i9. \ 285 schedule: e FORMS OF DEFENCE (ART. 2U3) 1. — Defence of Payment (title of case) The defendant pleads payment bj cash made at on , (or by a cheque dated at, etc., or as the ease may be); and prays for the dismissal of the action with costs. Date.) G. H., Attorney for Defendant. 2. — Defence of Novation (^TITLB OF CASE) The defendant pleads that the plaintiff's claim was novated \iy reason of the acceptance by the plaintiff, in discbarge of the defendant, of a claim for $ , assigned to him by the defendant on , at , by act in private writing {or in notarial form, or as the case may be): and prays for the dismissal of the action with costs. (Date.) G. H, Attorney for Defendant. 3. — Defence of lieka.te (TITLE OF CASE) The defendant pleads that the plaintiff's claim has been ex- tinguished by release in private writing (or in notarial form, or as the case may be), made at , on ; &Dd prays for the dismissal of the action with costs. (Date.) G. H., Attorney for Defendant. 4. — Defence of Compensation (TITLE OF CASE) The defendant pleads that the plaiotiff^s claim is compensated t)y an equal amount belonging to a claim of the defeadaat i 1 ■ " [\ ! ■' ^ • ■ ■ : ^ ; !■' iH ^■^ w M ' mBt^m 1;'' 9 n :^i ; !,. fl Li 1 ^n 5-' 236 The Code of Civil Procedure. against the plaintifl^ arising under tlie following circumstances : {here state the facts briefly) ; and prajs for the dismissal of the action with costs. CBate.) G. H., Attorney for Defendant. 5. — Defence of Prescription (TITLE OF CASE) The defendant pleads prescription by thirty years (or five years, or as the case may he, and state briefly the facts giviny rise to the prescription) » and prays for the dismissal of the action with costs. {Date.) G. H., Attorney for Defendant. SCHEDULE P FORM OF EXPERTS' OATH (aRT. 400) I, A. B. , of {if there be two or more persons to he sworn say I, A. B., of , and I, C. D.. of ), Swear that, in the presence of E. F., the plaintiff, and G. H , the defendant, named in an interlocutory judgment pronounced in {here insert the name of the court) in the district of , bearing date the 18 , or in their absence, after due notification shall have been given them, to attend at a place designated, and on a day and hour to be stated to them, respec- tively, I will faithfully proceed as an expert to the view and examination required by the said judgment; and that I will truly report my opinion in the premises, without favour or par- tiality. . So help me God. SCHEDULE G FORM OF CERTIFICATE OF THE DUE ADMINISTRATION OF THE OATH (art. 400) Sworn before roe , a commissioner of the Superior Court in the district of {or sub-delegate authorized by tb& commission, or the judgment, as the case may be, hereunto an- nexed, or as the case may be)j at the 18 Appendix. SCHEDULE H 227 FORM OF witnesses' OATH URT. 404). I, (insert the name, profession or quality and place of residewe of the witness), swear that I am not related or allied to, or a servant of either party, and that I am not interested in the ^vent of the present cause {or, if the witness snys he is, state in what degree he declares himself to be related or allied to either and which of the parties, or what situation he holds in the service .oj either of them) ; ana that the evidence, which I shall give before the experts (or arbitrators, or mediators, as the case mny be), named in the interlocutor^^ judgment pronounced by (here insert the name of the court), in the present cause, shall be tho tfjth, the whole truth, and nothing but the truth. So help me God. SCHEDULE I FORM OF CIIALLBNGE TO THK ARRAY (aBT. 449) (title OF CASE.) The (plaintiflF or defendant; challenges the array of the panel on the ground that it was returned by X. Y., sheriff of the dis- trict of (or B. F., deputy of X. Y., sheriff of the district of , as the case may be), and that 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. (I) 18 , at {place). A. B., Sheriff. {Date.) Tl! Appendiw, SCHEDULE N 23» fOBM FOR PUBLICATION IN THB NRWSPAPBRS OF A NOTICE TO CREDITORS COLLOCATED (ART. 823) Province of Quebec, District of Superior Court A. B., C. D., and B. F,j Plaintiff j Defendant f Creditor collocated. It is ordered that the said E. F. (his quality and domicile) or his legal representatives do appear before this Court on the 18 , in order to answer the contestation of his claim. (Date.) R. S., Prothonotary. SCHEDULE O FORM OF DEMAND OP ABANDONMENT DPON A TRADER WHO HAS CEASED HIS PAYMENTS (ART. 854) To A. B., of {state place of domicile or ordinary residencey occupation., and firm name if any): You are hereby required by C, D., your creditor, whose claim is unsecured in a sum of $ , to make a judicial abandonment of your property for the bemnt o^'your creditors, in the office of the prothonotary of the Superior Court for the district of , in the Court House in iVate.) C. D. 240 The CodiR of Civil Procedure. SCHEDULE P •a FORM OF NOTiCK OP MEETING OF CREDITORS FOR THE APPOINT- MENT OF CURATOR AND INSPECTORS (ART. 8G6) (titlk OF case) The said , having made a judicial abandonment of liis property for the bcDofit of his creditors on the j 18 , the creditors of the said are notified to meet m 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. {Dale.) F. G., Prothonotary. SCHEDULE Q FORM OF NOTICE OF APPOINTMENT OF CURATOR (ART. 872) (title of CASE) Notice is hereby given that, on the 18 , by an order of the court, the undersigned was appointed curator to the property of the said , who has made a judicial aban- donment of his property for the benefit of his creditors. Sworn claims must be tiled with me within thirty days from this notice. {Date.) H. B. SCHEDULE R FORMS OF AFFIDAVIT FOR CAPIAS (ART. 898) 1. — Against a Debtor absconding from the Provinces qf Quebec and Ontario (TITLB or CASE) I {names, domicile, and occupation)^ 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 plaintiff, as the case may be). 2. The defendant is personally indebted to the plaintiff in the sum of $ Appendix. 211 10 the ihe 3. The said inJebtednesa arose in the following manner: (state the causes of indebtedness succinctly, and the time and place where it has arisen). 4. The defendant is immediately about to leave the Provinces of Quebec and Ontario, with intent to defraud his creditors in general and the plaintiff in particular {or with intent to defraud the plaintiff, as the cafe ma;/ he), 5. The plaintiff will thereby be deprived of his recourse against the defendant. And I have signed. Sworn, etc. 2. — Against a Debtor who secretes his Property Follow the foregoinjform^ with the exception oj Paragraph 4, for which tvbstitute the follo%vin40 ; 3rd class,. $30 ; 4tb class, $20. 15. Fee on every argument ot a motion, petition, rule, inter- vention, reprise cVtnstnnce and other incidents, Ist class, $4 > 2nd class, .^3 ; 3rd class, $2 ; 4 th class, $1. 16. Drawing every necessary affidavit, Ist class, $2 class, $1.50 ; 3rd class, $1 ; 4th class, 50c. 2nd ;s I. ■f; 250 The Code of Civil Procedure. 17. Pee on motion for leave to appeal from interlocutory judgment, Ist class, $10 ; 2nd class, $8; 3r(l class, $6j 4th class, $4. 18. Fee on dismissal of appeal for want of proceedings, Ist class, $30 ; 2nd clas?, $25 ; 3rd class, $20 ; 4th class, $15. 19. Drawing bill of costs, 1st class, $3 ; 2nd class?, $2 50 ; 3rd class, $2 ; 4th class, $2. 20. Copy of same, Ist class, $2 ; 2nd class, $1.£0 ; 3rd class $1 ; 4th class, 50c. 21. Attendance on remitting; record, 1st class, $6 ; 2nd class, $5 ; 3rd class $4 ; 4th clr.ss, $3. 22. For travelling expenses for apppal from outside districts, or when judgment is rendered at u place where the case is not pending, $14. 23. Fees for correcting proof sheets of Factum and evidence, 50 cts a page. 24. In cases of $4,000 and over, and in cases mentioned in No. 2 of first class actions, an additional lee of $20 to each Counsel, when the appeal is settled after inscription, but before argument, and of $30 when the appeal is argued on the merits. 25. The Court or Chief Justice may grant a senior Counsel fee; in which case the fee, unless otherwi.se determined by the Court or Judge, shall be, 1st class, $50 j 2nd class, $40; 3rd class, $30 ; 4th class, $20. APPEALS TO THB PRIVY COUNCIL. n ■ ii •'- 26. On motion to appeal, 27. On giving security, $15, 28. On proceedings to have the appeal declared lapsed, $15. 29. On every cablegram and letter sent to Solicitors in England, $2. 30. On receipt of every cablegram and letter from tSolicitors, $2. APPEALS TO THE SUPREME COURT 31. On every bail bond, $15. 32. On petition to settle case, $15. 33. On oori-eapondence with Ottawa and transmission of documents, $15. Tables of Adrncatcs' Fees. 2.51 TARIFF OF FEES OF ADVOCATES, ETC., IN THE SUPERIOR COURT. FIRST CLASS ACTIONS CONSIST OP 1. Personal, real and mixed actions, when the value in con- test exceeds $1,000. 2. Proceedings by Injunction, Quo Warranto, Mandamus, Scire Fa^'as, Requete libellee, Prohibition or others under Articles isos. 957 et seq. and 978 et seq. of the Code of Civil Procedure, and upon like proceedings, unless the class of action is otherwise determined by the final judgment. 8KC0ND CLASS ACTIONS CONSIST OF 1. Personal, i-eal and mixed actions, when the value in contest exceeds $400, and does not exceed $1,000. 2. Real and mixed actions, not otherwise provided for. 3. A.ciionsfcr separation from bed and hoard. 4. Actions for separation of property. 5. Actions en declaration de paternite. 6. Actions en destitution de tutelle or curatelle. 7. All actions not included in the first class, and not otherwise provided for- THIUD CLASS ACTIONS CONSIST OP 1. Personal actions, when the value in contest exceeds $200, and does not exceed $400. FOURTH CLASS ACTIONS CONSIST OF 1. Personal actions when the value in contest exceeds $100 and does not exceed $200. i Ml ft Ih Is I:mBB j: l^^^mWM SUPERIOR COURT TARIFF Actions not contested 1. If the action be settled before the return, 1st class, $25; 2nd class, $18 ; 3rd class, $14 ; 4th class, .'^10. 2. If the action be settled, or if defendant confess judgment on the day of the return, or the next following juridical day, 1st class, $30 ; 2nd class, $20 ; 3rd class, $16 ; 4th class, $12. J: 252 The Code of Civil Procedure. 3. It the action be settled, or if the defendant 'confeaa judg- ment after the delay mentioned in the next preceding number, but before plea 61ed, or inscription for proof, or inscription for final heating on the merits where no enquete is necessary, 1st class, $35 ; 2nd class, $22 ; 3rd class, $18 ; 4th class, $15. 4. If the action be settled after the inscription on the roll for proof, but before the closing of the enquete, or if the action be settled after the inscription for Hnal heanng on the merits where no enquete is necessary, or if judgment be rendered on such last mentioned inscription, 1st class, $40 ; 2nd class, $25 ; 3rd class, $20 ; 4th class, $IG. 5. If the action be settled after enquete closed, or if judg- ment be rendered in such action after enquete, 1st class, $50 ; 2nd class, $35 ; 3rd class, $24 ; 4th class, $20. G. In any of the above cases in which the defendant may have appeared by attorney to defendant's attorney in actions returned, or on congc-defaut, 1st class, $10 ; 2nd class, $8 ; 3rd class, $5 ; 4th class, $4. Actions contested. 7. If the action be settled after the filing of any plea other than a plea to the tnerits. and without enquete on such plea, or if the action be dismissea on such plea and without enquSte, 1st class, plaintiff $50, defendant $40 ; 2nd class, plaintiff $30, defendant $25 ; 3rd class, plaintiff $25, defendant $20 ; 4tn class, plaintiff $20, defendant $15. 8- If the action be settled after the filing of a plea to the merits, but before the inscription on the roll for proof, where an enquSte is necessary, or before the inscription for final hearing, where no enqut'te is necessary, 1st class, plaintiff $60, defendant $50 ; 2nd class, plaintiff $40, defendant $30 ; 3rd class, plaintiff $30, defendant ^25: 4th class, plaintiff $24, defendnnt $20. 9. If the action be settled after the inscription on the roll for proof, but before the inscription for final hearing, 1st class, plaintiff $70, defendant $60 ; 2nd class, plaintiff $50, defen- dant $40; 3rd class, plaintiff $40, defendant $35 ; 4th class, plaintiff $28, defendant $22. 10. If the action be settled after the inscription for final hear- ing, or if judgment be rendered on such hearing, 1st class, plain- tiff $80, defendant 970 ; 2nd class, plaintiff $f}0, defendant $50 ; 3rd class, plaintiff $50, defendant $10 ; 4th class, plaintiff $30, defendant $24. m Itf Tables of Advocates' Fees. Qenernl Rules 253 |n- 11. An additional fee of $15 in uncontested cases, but after return, and $30 in contested cases of $4,000 and over. * 12. For any proceedings not specially provided for, the court orjudge shall determine the amount of fees, or shall grant the fees allowed by the tariff, for a like proceeding. In such cases the judge may determine the amount of such fiees by an order subsequent to the judgment on such proceeding, when the judg- ment has omitted to do it. 13. The costs in actions in revendication for moveables to be taxed, as against the plaintiff, according to the value of the property claimed, and as against the defendant, according to the value of the property for which judgment is rendered. 14. Hypothecary actions and actions for seigniorial dues where the title of the seignior is not contested, are to be con- sidered, in respect of costs, as merely personal actions. 15. The costs in actions to account to be taxed against the plaintiff, according to the amount demanded, and against the defendant, according to the amount for which be is account- able. 16. In any action of ejectment, under the lessor and lessee act not including actions in which either rent is or damages are sued for (which actions are provided for by statute), the costs to be as in personal actions (in the Superior Court or Circuit Court, as the case may be), for a sum of money equal to the value of the premises leased for the year current at the time of the institu- tion of the action ; or, if the lease shall have expired, then for the last year to which the lease extended. 17. In actions of damages for personal wrongs, the costs to be taxed against the plaintiff, according to the amount de- manded, and against the defendant, as of the class to be deter- mined by the final judgment. 18. In actions icr sums of money under $200, instituted by writ of capias ai respondendum in the Superior Court, the costs to be as in actions over ■'$100 in the Circuit Court. 19. In any case where the defendants sever in their defence, the plainti#s attorney shall receive, on each additional issue, one naif of the sum which he would have received bad there been but one issue, the whole amount to be payable, in equal proportions, by the party or parties to each issue. 1' m jnsHllii r i 254 ^1 The Code of Civil Procedure. Additional Fees. 20. For the second and every additional copy of the plain- t'S^s declaration, Ist class, $2 ; 2nd class, $2 ; 3rd class, $2 ; 4tb class, $1. 21. Affidavits to obtain writs of capian ai respondendum^ saisie conservatoire simple, attachment before judgment, attach- ment en main tierce before judgment, saisie gagerie, saisie ?eoendication, certiorari or other prerogative writs, when affida- vit required, and suit commenced by such process, 1st class, $10; 2nd class, $8; 3rd class, $6; 4th class, i?4. 22. Tf a writ of capias ad respondendum, or any ivrit of attach- ment against moveables be sued out at any time after the insti- tution of the action (affidavit included), 1st class, $20 ; 2nd class, $15 ; 3rd class, $10 ; 4th class, $8. 23. On any declinatory or dilatory exception, exception to the form or demurrer, over-ruled, and also on a demurrer main- tained after a judgment o( preuve avantfaire droit: — To the plainti#s attorney, Ist class, $10 ; 2nd [class $8, 3rd class, $8 ; 4th class, $6. To the defendant's attorney, Ist class, $8 ; 2nd class, $6 ; 3rd class, $6 ; 4th class, $4. it 24. On any other plea, over-ruled, after law issue raised upon To the successful party, 1st class, $15 ; 2nd class, $12 ; 3rd class, $10 ; 4th class, $8. To the opposite party, 1st class, $8 : 2nd class, $6 ; 3rd class, |6 ; 4th class, $4. 25. On any dilatory exception maintained : To the defendant's attorney, 1st class, $15 ; 2nd class, $12 ; 3rd class, $10; 4th class, $8. To the plaintiffs' attorney, 1st class, $12 ; 2nd class, $10 ; 3rd class, $8 ; 4th class, $6. 20. If the plaintiff be permitted to amend his declaration, after the filing of an exception to the form : To the defendant's attorney, 1st class, $7; 2nd class, $6 ; 3rd class, $5 ; 4th class, $4. 27. Tf the plaintiff be permitted to amend his declaration, after the filing of a demurrer : To the defendant's attorney, 1st class, $10; 2nd class, $8 j 3rd class, $t> ; 4th class, $4. 28. For all proceedings on any petition, motion or rule, not specially provided for, upon which costs are ordered to be paid : -.»;}:'- m, lOt be Tables of Adrocates' Fees. 255 To the party to whom costs are awarded, 1st clnss, $5 ; 2nd class, $4 ; 3rd class, $3 ; 4th class, $2. (Sarae fee, on motions or other proceedings to call in cre- ditors.) 29. For every necessarpr affidavit filed in support of, or in answer to amotion or petition, Ist class, $2 ; 2nd class, $1.50 ; 3rd class, $1 ; 4th class, 50 cts. 30. For putting in security for costs : To each attorney, Ist class, $6 ; 2nd class, $5 ; 3rd class, $4 ; 4th class, $3. 31. For all proceedings respecting the putting in of security, in any case not otherwise provided for : To each attorney, 1st class, $10 j 2nd class, i?8 ; 3rd class, $6 ; 4th class, $4. 32. Enquete fee in any contested cause, tried by jury or judge, replacing counsel fee at enquete : To each attorney, 1st class, $20 ; 2nd class, $15 ; 3rd class, $10 ; 4th class, $5. And for cross-examination of every witness over three, 1st class, $2 ; 2nd class, $2 ; 3rd class, .$2 ; 4 th class, $1. 33. In cases to be tried by jury : To each attorney for preparation of factum, 1st class, $15; 2nd class, $10 ; 3rd class, $8. To each attorney, for statement of facts required by Article 425 of the Code of Civil Procedure, including copy for adverse par v, Ist class, $15 ; 2nd class, $10 ; 3rd class, $8. 34 In every case of trial by jury, where amotion is made for anew trial, or in arrest of judgment, or for judgment non obstante veredicto, or for non suit, where all or any of these remedies are sought, one fee only to be allowed for the whole of the proceedings in each such case, up to judgment therein : To each attorney, 1st class, $30 ; 2nd class, ^20 ; 3rd class. Sin. 35. Struck out by an order of His Honor the Lieutenant- Governor in council ot date 26th February, 1894. 3G. On any hearing or rehearing on the merits in contested cases, 1st class, $15; 2nd class, $12; 3rd class, $8; 4th class, $6. 37. On rehearing on any pleading, ordered by the court, 1st class, $10 ; 2nd clas-j, $» ; 3rd class, $6 ; 4th class, $4. 3s. On any rehearing ordered upon any nile or other proceed- ing not specially provided for : 256 The Code of Civil Procedure. To each attorney, 1st class, S4 ; 2nd class, $3 ; 3rd class, ?2 ; 4th class, $\. 39. For all proceedings on a continuance of suit (rei>rise d' instance) by petition or motion : To the attorney contiuuinjr suit, Ist class, $20 ; 'iml class, $15 ; 3rd class, $12 ; 4th class, SS. To the attorney of adverse party, 1st class, SS ; 2nd cin^s, $6; 3rd class, $4; 4th class, §2. If contested, same tee as in the original action. 40. On every copy of suhpocna certified by the attorney, Isl class, 10c; 2na class, 10c; 3rd class, 10c; 4th class, 10c. 41. On drawing inierrogatoirea on fails ef articles, 1st class, $5 ; 2nd class, $4 ; 3rd class, $3 ; 4th class, .$2. 42. Suing out a writ of execution, Ist class, $5; 2nd class, $4 ; 3rd class, $3 ; 4th class, $2. According to the amount for which execution issues and when such amoiint is under $100, then according to the tat'iff for the Circuit Court. On execution de Terris^ $0 additional for instructions to sheritf. 43. Suing out a writ of attachment after judgment, if declaration be not contested, 1st class, $10; 2nd class, .$8; '.'Jrd class, $6 ; 4th class, $4. 44. For every Garnishee (above 3), $1. If contested, the costs to be the same as in a contested personal action ; the class to be determined by the amount of the judgment against the garnishee, if the costs be payable by him, and by the amount claimed by the contestation, it the costs be payable by the party contesting the declaration. 45. For all proceedings for coercive imprisonment, or for tiio imprisonment of any party, or for a writ of possession, or for an order for sale in consequence of a false bidding, or for the affixing of seals, or for the removal thereof, and for all pro- ceedings on an application, either before or after judgment, to liberate any person arrestea for debt otherwise than by giving bail, or to obtain possession of property seized, or contesting capias or attachment before judgment, when facts are not dis- puted, or in cases of rebellion en Justice : To the attorney of applicant if no cause shown, 1st class, $10 ; 2nd class, $8 ; 3rd class, $6 ; 4th class, $4. If cause shown but without enquete : To the attorney of applicant, i2». class, $12 ; 2nd class, $10 ; 3rd class, $8 ; 4tb class, $6. To the attornev showing cause, 1st class, $10 ; 2nd class, $8 ; 3rd class, $6 ; 4tb class, $4. !' I Tabh'n of Ailrovutctf' Fn'i<. 2.') 7 3l3 tor he B'O- to (ng Ing Vis- ^0; 46. If it, be necessary to lake evidence on any of the pro- ceedings mentioned in the foregoing number, or upon any preliminary plea, or upon any other incidental proceeding not specially provided for : To each attorney an additional fee of, 1st class, ^10 ; 2nd class, $8; 3rd class, $U ; 4tli class, $4. 47. On petition to quash capias or aaisie-arret before judg- ment, when facts &v15 ; 4th class, ^]0. 48. On the continuance of a case inscribed for eu'iuete, or enqut'te and merits or merits, party bjund to proceed not being ready, fee to adverse party, 1st class, $1: 2nd class, $1; 3ru class, $1 ; 4th cUss, §1. 49. For continuance of heariuj; on merits, on pleas, motions, petitions and incidental proceedings, Ist class, $1 ; 2nd class, ."SI ; 8rd class, $1 ; 4th class, $1. .■)0. For articulation of facts, Ist class, $12 ; 2nd class, $10; 3rd class, $8 ; 4th class, $G. 51. Struck out by an order of His Honor the Lieutenant- Governor in council of date 2Gth February, lsy4. 52 To any proof commissioner for performing all services in any case referred to him, not exceeding the examination of three witnesses, 1st class, $10; 2ad class, $8; 3rd cl^ss, $0; 4th class, $4. 53. For each witness above three, 1st class, $2 ; 2nd class, §2 ; 3rd class, $2 ; 4th class, $1. 54. For prosecuting to judgment a report of distribution not contested, $10. 55. For all proceedings upon a contestation of a report of distribution, same fees as in an action for amount of collocation, the contestant being considered plaintiff. 56. For all proceedings after judgment ordering an account to be rendered in any action to account, if the account be acquiesced in without debats : To each attorney, 1st class, $20; 2nd class, $15; 3rd class, $10 ; 4ih class, $5. 57. If the account be contested, the costs to be the same as in a contested personal action, the class to be determined by the amount for which the accounting party shall be declared accountable beyond the amount admitted to be due by the 17 258 The Code uf Vicii rrorainre. I I account filed, if the costs b« pnyiible by the nccountine itarty ; and by the amuunt claimed by the d6baia de cuinpte, if me costs be payable by the oyant-compte. 68. In actions for soparution of property, or for separation from bed and board, tor all proceedings to liquidate the matri- monial rigbts ot the pinintitf : If not contested, to plaintitt'a attorney, $10. If contested, to each attorney, $20. 59. For all proceedings to cause a curator to be appointed to a delaissement in any hypothecary action, .•i;5. 60. Costs on interventions and incicenial cross-demands to be the same as on original demands ot same class. Gl. For all proceedings on a licitnlion of one succession or more, after judgment rendered, $40. 62. On a disavowal, petition in revocation of judgment, or tierce-ojqwsitioTif costs to be the same as in original demands of same class. On opposition for payment, not contested : 63. If the sum do not exceed $80, $8. 64. If it exceeds $80 and do not exceed $200, $10. 65. If it exceeds $200 and do not exceed $400, $14. 66. If it exceeds $400 and do not exceed $1,000, $16. Exceeding $1,000, $20. 67. If contested, costs to be the same as in personal actions for the same amount m the Superior Court or Circuit Court, as the case may be, excepting that the costs upon the contestation of any opposition lor a sum not exceeding §60 shall be the same as in contested actions in the Circuit Court, above i$GO and under $100. 68. Oppositions to annul, to withdraw, or to secure a, or any other opposition, on a seiiure of an imnioveal not contested, let class, $20 ; 2nd class, ;j|>15 ; 3rd class, ;; ; 4tb class, $10. 69. If contested, costs to be as in the original action. 70. In the case of seizure of moveables, if opposition not contested, 1st class, $163 2nd class, $12; 3rd class, $10; 4tb class, $8. If contested, costs to be according to the value of the move- ables in dispute, as determined hy proot ot record, if any, or by affidavits. IF Tables of Advocates' Fns. 369 If the viilut' be less tlitiii $00, the coats to be us of Ist chvsa actions in Circuit ('ourt. m i 1 1 HATIKICATION (»F TITLK For all iirocoediiigs to ot)tHin iv sentence of rixtilicalion of title : 71. To petitioner's attorney, if purchase money do not exceed !f400, $18. 72. If purchase money exceeds §400, and do not exceed $1,000 or if the consideration be not of a pecuniary nature, $2.*). 73. If the purchase money exceeds $1,000, $.35. If the amount exceeds $5,000, $50. 74. Fees on oppositions to sentence of ratification of title and on contestations thereof to be the same as on oppositions to executions and contestations thereof. i,i .t. A as lihe m bot Uh lOt l4tb bve- by KXPROPHIATIO.NS 75. Railway Expropriations: — To each attorney. For instructions, $20. 70. To examine the Company's offer and the notice of expro- jiriatiou, $2.50. 77. To draw refusal of offer and to appoint an arbitrator, $2.50. 78. To draw oath of arbitrator, $1. 79. On petition for nomination of an arbitrator, $10. 80. On judgment appointing arbitrator, $1. 81. On petition for provisional possession, $20. 82. Attendance at sittings of arbitrators, for each day, $10. 83. On petition for taxation of bill of costs, $10. 84. On appeals to the court from the award of arbitrators and such like proceedings : The same fees as in Review cases for a similar amount. 85. For all proceedings, on behalf of a proprietor expro- priated, to obtain an order for the payment over of the moneys : If the value of the property expropriated exceeds $6,000, $40. 260 The Code of Civil Procedure. 86. If the value of the property does not exceed ^5,000 but exceeds $1,000, $25. 87. If the value of the'property does not exceed $1,000 but exceeds $400, $20. 88. If it does not exceed $400, $15. 89. If contested with enfjuete, same fees as in same class con- tested cases. 90. On petition for nomination of commissioners. To the attorney of petitioner and of opposing parties, $10, 91. For opposing the homologation of a report of commis- sioners : Where the value of the property, respecting which the objec- tion arises, exceeds $1,000 : To the successful attorney, ^50. To the opposite attorney, $40. 92. When it exceeds $400 : To the successful attorney, $40. To the opposite attorney, $30. 93. When it does not exceed $400 • To the successful attorney, $30, To the opposite attorney, $20. TAUiFFof fees to attorneys representing the proprietors expro- priated on proceedings had before the comt , sioners in expro- priation in the City of Montreal, as fixed Ly the Judges of the Superior Court for the district of Montreal, on the 23rd day of April, 1H94. I. For instructions, assistance to appointment of commissioners, examination of the property, prepara- tion of claim and interview with the witnesses, when the amount awarded exceeds $5,000.00 $20 00 When the amount awarded exceeds $1,000.00.. 15 00 When the airount awarded is of $1,000.00, or under = 10 00 '1. For the argument 25 00 3. For costs of exhibits A. For every sitting, when case is proceeded with... 10 00 5. For every attendance to an adjournment when the case cannot be proceeded with 5 00 0. For the examination of each witness over five... 2 00 n of 00 00 00 00 00 00 00 Tahh-s of Aitroaitis' /'rrx. 'HM 7. For the appearance to homologation.!... 5 00 8. For taxation of bill of costs, including all pro- ceedings and incidents relating thereto 10 00 SUPERIOR COURT TARIFF WRITS OF CERTIORARI 94. If settled before the filing of such writ : To petitioner $10 00 If writ refused, to party showing cause G 00 95. If not settled before the filing of such writ: To petitioner ., Sl'5 "0 To respondent 10 00 COMMISSIONS R0(SAT0IR»!:S AND ORDKRS FOR THE EXAMINATION OF WITNESSES 96. To the attorney suing out the same, 1st class, $10 ; 2iui class, $8 ; 3rd class, .^G ; 4t!i class, :|i>3. 97. For the drawing of interrogatories or cross-interrogatories to each attorney, 1st class, $10; 2nd class, §8; 3rd class, $G; 4th class, $3. 98. For taking instructions, examining the papers, etc , etc., to each attorney, 1st class, $10 ; 2nd class, $S ; 3rd class, $6 , 4th class, $3. 99. For examining or cross-examining any witness, Ist class $2 ; 2ud class, $2 ; 3rd class, $2 ; 4th class, $1. 100. To the attorney prosecuting the exc'cution of the writ or order, an additional fee of, 1st ciass, ."^lO ; 2nil chiss, $S ; 3rd class, 6<3 ; 4th class, $3. PROUATES, HARKAS CORPUS, MINORS, APPEALS, ETC. 101. For all fees to obtain probate of a will or writ of habeas corpus, wllhoni en'^w'/e $15 00 Ueti'iui'te, fee as in contested cases o*" second class. 102. For all lees to obtain appointment of tutors, to minors, or curator to peison or property, or for removal ot interdiction or for emancipation) or for appointment of a sequestrator or for any other sucli proceeding : If not contested $10 00 If contested, lee of a 3rd class in contested cases. 103. For all proceedings for bringing to sale the property of minors .^20 00 .«i! 2G2 The Code of Civil ProcMurc. 104. On appcHl to Court on any such proceedings, and on appeals to tlie Court from authorization to sell, n\ortgage or divide property of minors, etc., and from decision of a judge on reports of experts or arbitrators in expropriations or otherwise, and such like proceedings, same fee as on a review of 2nd class. 105. On all appeals from inferior courts to Superior or Circuit Court. If contested: Attorney for appellant ?20 00 Attorney for respondent 12 00 106. If not contested : Attorney for appellant 12 00 107. On petitions in reference to municipal or school matters, such as valuation or assessment rolls, electoral lists, and other similar proceedings, same fees as in 3rd class cases. EVOCATIONS 108. If maintained, the codts to be the same as in actions of the third class, which costs shall include all services of both courts: If rejected, to each attorney :?5 00 iMPROBATioN — {Inscription en faux) 109. To the attorney for direction for drawing a power of attorney $4 00 1 10. Attendance at drawing up a descriptive state- ment of document impugned 4 00 111. If settled before articles of improbation are filed, each motion required, and also the declaration to be made by the defendant m improbation, as to whether he intends to avail him- self of the document impeached, shall be taxed as follows ; 1st class, $10 ; 2nd class, $8 ; 3rd class, $G ; 4th class, $4. 112. If settled after the articles of improbation are filed, but before the answer, the fees of the attorney of the piaintift'in im- probation shall be as in No. 1 above, andthe fees of the attorney of the defendant in niiprobation shall be as in No. G, and if the settlement take place at any subsequent stage of the proceed- ings, or if judgment be rendered on such imjjrobation, the costs shrtll be as in the original demana, if settled at a like stage. CASKS IN REVIEW 113. Under $400: If settled before hearing, to each attorney $15 00 00 ich Ihe hu- ll St nit Sra- the ksts Tables of Adiocates' Fees. 114. After liearinj?. to each attoiiiev 115. In case.- of $400 to .i!l,000 If settled before hearing After hearing lit}. In cases of $1,000 or over: If settled before hearing,.. After hearing 2G3 30 00 20 00 40 00 :^o 00 tlO 00 117. Factntn in Review, to each jiarty, 1st class, .$12 ; 2nd class, $10; 3rd class, .$8 ; 4tb class, $6. 118. For travelling expenses, from any district to Quebec or Montreal .' ^10 00 CKssio.v DK BiENs (abandonment of property), liquidation o PARTNKRSHIPS, AND OF INSOLVE'T It.VNKS AND CORPOIfATIONS. 119. For preparing a demand of Cession de hiens... $"> 00 120. For prejjaringan assignment, and filing tlie sworn Statement of creditors and hilan 121. For all petitions and motions 122. For attending a meeting of creditors or share- holders in Court or a meeting ordered by the Court. 123. For preparing every ordinary claim. 10 00 6 00 10 00 1 00 00 00 124. For preparing a privileged or hypothecary claim 125. On contestation of claim or dividend sheet, or of a de- mand for the ai>i>ointment of a liquidator or of a demand to have a party held a contributor, and other like proceedings, same fees as in ordinary actions for a like amount. 120. On all proceedings not specially provided for, same fees as under general taritf, as far as applicable. 127. Advocates actiny as referees^ unless otherwise agreed between the parties : 1. To each advocate, referee or arbitrator, for examination of the case and papers, 1st class, $12 ; 2nd class, $10 ; 3rd class, .$8 : 4th class, $6. Evpry sitting of less than one hour, and for every hour, provided that not more than 3 hours be allowed iu taxation per day, 1st class, $G ; 2nd class, $5; 3rd class, $- ; 4th class, $3. I •l.^ i%. II i i I .ft 11 m \ Ml ' !i 'I'M' .v' -m 264 The Code of Civil Procedure. To draw the judgment, 1st class, $10; 2nd class, $8 ; 3rd class, $6 ; 4th class, $4. 2. To the clerk of the referees, for every sitting of less than one hour, not exceeding three hours per day, 1st class, $3; 2nd class, $2 ; 3rd class, $1.50 ; 4th class, $1. For the report and for copies of judgment, at the rate of 10 cents per 100 words, including certificate. lawyers' letters 128. For one letter.when the case is settled without the issuing of a writ, 1st chiss, $4 ; 2nd class, $3 ; 3rd class, $2 ; 4th class, $1. BILLS OF COSTS 129. Drawing bill of costs and copy '. In contested cases, Ist class, $2 ; 2nd class, §1.50 ; 3rd class $1.50 ; 4 th class, $1. In non-contested cases, Ist class, $1; 2nd class, $1; 3rd class, 75c ; 4ih class, 50c. m: TARIFF OF FEES FOR ADVOCATES IN CIRCUIT COURT CLASSES OP ACTIONS Rule 1st. In actions of $IC0 and over, same fees shall be allowed as in actions for a similar amount in the Superior Court. RuLK 2nd. In actions before the Magistrates' Court, civil jurisdiction, the same fees shall be allowed as in the Circuit Court in actions for a similar amount. RuLb; 3rd. On all cases or proceedings not provided for, the Court or the Judge shall determine the fees to be allowed. 1st Class from $60 to flOO 2nd " " 40 to 60 3rd " " 25 to 40 4th " under 25 4- Tdhh's of Ailnx'dtrs' F,r.s\ 265 lit lie- TARIFF 1. On making aftitlavit for Sai.sie Arret before judgment, Saisie-Gageric, Sai$ie-Kevendication, and any special affidavit to institute process, 1st class, $1.50 ; '2nd class, $1 ; 3rd class, 75c ; 4th class, 50c. 2. For original declaration, Ist class, $2.50 ; 2nd class, $2 ; 3rd class, $1.50 ; 4th class, $1. 3. For every copy, over one, of declaration, petition, inter- vention or opposition, 1st class, $1 ; 2nd chiss, 75c ; 3rd class, 50c ; 4th class, 25c. 4. Fee on action settled before return, 1st class, $4 ; 2nd class, $2.50; 3rd class, $1.50 ; 4th class, $1. 5. Fee on action settled after return and before contestation : To Plaintiff's Attorney, 1st class, $6 ; 2nd class, $4 ; 3rd class, $2; 4th class, $1.50. To Defendant's for appearance, Ist class, $3 ; 2nd class, $2 ; 3rd class, $1.50 ; 4th class, $1. 6. On judgment, on confes?ion, or by default or ex parte with- out enquete, that is to say, without examination in Court of any witness or party : To PlaintiflF's Attorney, 1st class, $8 ; 2nd class, $5.50 ; 3rd class, $3 ; 4th class, $2. 7. On judgment given by default or ex parte, but with enquete : To Plaintiff's Attorney, 1st class, $10 ; 2ud class, $(3.50 ; 3rd class, $4 ; 4th class, :?2.50. To Defendant's Attorney, 1st class, $3; 2nd class, S2; 3rd class, $1.50; 4th class, $1. 8. On actions settled or discontinued after contestation ; To Plaintiff's Attorney, Ist class, $10; 2nd class, $0.50 ; 3rd class, $4 ; 4th class, $2.5't. To Defendant's Attorney, 1st class, $<5 ; 2nd class, $4; 3rd class, $2.50; 4th class, $1.50. 9. When judgment shall have been given after contestation : To PlaintifTs Attorney, 1st clas^, $12; 2nd class, $8; 3rd class, $6 ; 4th class, $4. To Defendant's Attorney, 1st class, SIO; 2nd class, $G ; 3rd class, $4 ; 4th class, $2. 10. An enquete fee for each witness cross-examined, Ist class, 50c ; 2nd class, 40c ; 3rd class, 30c ; 4th class, 25c. ii m in 266 The Code of Ctil Procedure. 11. A general enquete fee : To each Attorney, 1st class, $2.50 ; 2nd class, $2 ; 3rd class, $1.50; 4th class, $1. 12. Additional fee in all hypothecary or mixed actions, and in all actions having conclusioiiS other than for the payment of a specific sum of money, Ist class, $4; 2nd class, $3 ; 3rd class, $2.50; 4th class, c-1.50. 13. In actions of damages for personal wrongs, the cofst? to be taxed as of the class to be determined by the final judgment, unless otherwise ordered by the final judgment. 14. Fee on j)lcas to the merits in writing, 1st class, $2 ; 2nd class, $1.50 ; 3rd class, $1 ; 4th class, 50c. 15. On each opposition afln de distraire, afin d'annuhr, or to secure charges, or other oppositions or interventions not con- tested, 1st class, $6 ; 2nd class, $3 ; 3rd class, §^2.50 ; 4th class $1.50. IG. On same when contested, the same fees as in the original actions to -which they shall be incident, except on opposition afin de dUtraire, when' fees shall be as in actions for the value of the moveables in dispute ; such value to be determined by the judgment or by affidavits, provided the value of the moveables does not exceed the amount of the original suit. 17. On oppositions for payment if contested, same fees as would be allowed on suit for a like sum claimed. 18. On writs of simple attachment after judgment, 1st class, $3 ; 2nd class, %2 ; 3rd class, $1.50 ; 4th class. $1 . On same for each garnishee more than three, Ist class, GOc ; 2nd class, 45c ; 3rd class*, 35c ; 4th class, 25c. 19. On return of same, and for attending to declaration of garnishees and taking judgment, if not contested, 1st class, $5.50; 2nd class, $4 ; 3rd class, $3; 4th class, $2. 20. If declaration of garnishees be contested, same fees as in an action for the amount In dispute between the parties. 21. On all incidental demands of Plaintiff or Defendant, same fees as are allowed in original actions for a like sum. 22. On each proceeding by motion or petition to continue the suit, reprise d'instatice, or for coercive imprisonment, or in any case ot rebellion (tjusticcy or to set attachment aside either on insufficiency of affidavit or on ground that allegation of affidavit are untrue, besides enqvete fee : Tables of Adiocatcs'' Fees. 2(57 n t of lin lie )n rit To Attorney prosecutinjr, if uncontested, Is t class, $4 ; 2nd clas?, $'A ■ 3rd class, $2 ; 4th class, $1. To Attorney prosecutinfr, if contested, 1st class, $6; 2nd class, $4 ; 3rd class, $?> ; 4tli class, $•_'. To Attorney resisting application, 1st class, $4 ; 2nd class, $3 ; 3rd class, $2 ; 4tli class, $1.50. 23. On tlie issuing of a writ of execution, Ist class, $1 ; 2nd class, Si ; 3rd class, $1 ; 4th class, $1. 24 . On execution ik fcrris for instructions to sheriff or bailiff, anil description of immovt'ables, Ist class, $2 ; 2nd class, $2 ; 3rd class, $2 ; 4th class, $2. 25. On proceedings for a writ of possession, or toobtain pos- session of goods : if uncontested, to Attorney of applicant, 1st class, $4 ; 2nd class, S3 ; 3rd class. S2 ; 4ih class, $i. 20. If cause shown, but without enqurle : To Attorney of applicant, 1st class, $6 ; 2nd class, $4 ; 3rd class, S3 ; 4th class, $2. To Attorney showing cause, 1st class, $4 ; 2nd class, $3 ; 3rd class, 82; 4th class, $1..0O. 27. In case o{ cnqnete on preliminary pleas or other incidental proeeeiiing, the fees juovided under »Vos., 10 and 11 shall be allowed. 2S. On drawing interrogatories sur Jaits ct articles, including copy, Ist class, $1.50 ; 2nd class, $1 ; 3rd class, 75c ; 4ih class, 50 c.' 20. On a commission to examine witnesses, commisHon roya- toil-':., or order, and commissaires enqueteitrs ; To Attorney suing out same, 1st class, $2,50 ; 2nd class, $2 ; 3rd class, .$1 ; 4tli class, 50c. To Attorney of opposite party, 1st class, $2 ; 2nd class, $1.50 ; 3rd class, $1 ;'4tli class, 50c. 30. For drawing interrogatories or cross-interrogatories, Ist class, S2; 2nd class, "^I ; .'ird class, 75c; 4th class, 50c. 31. For taking answers to interrogatories, examining papers, etc., 1st class, !ir2 ; 2nd cIm.s, $1 : 3rd class, 75c ; 4th class, 50c. For examination in chief or cross-examination of each witness, 1st class, 50c; 2nd class, 40c; 3rd class, 30c ; 4th class, 25c. 32. To Attorney prosecuting the execution of any such order or commission, &c., an additional fee of, Ist class, $2 ; 2nd class, $1 ; 3rd class, 7'ic ; 4th class, 50c. i m 268 The Code of Civil Procedure. 33. To proof commissioner for all services in any case referred to him not exceeding tlie examination of three witnesses, Ist class, $3 ; 2nd class, $2 ; 3rd class, $1.50 ; 4th class, $1. For each witness above three, Lst class, 50c ; 2n(l class, 40c ; 3rd class, 30c ; 4th class, 25c, 34. Struck out by an order of His Honor the Lieutenant- Governor in council, of date 26th February, 1894. 35. On each affidavit in support of special proceedings or of special incidents in a case, 1st class, 50c; 2nd class, 50c; 3rd class, 25c; 4th class, 25c. 36. Fee on motion or petition not otlierwi.se provided for : To Attorney of moving, &c., party, 1st class, $1 ; 2nd class, $1 ; 3rd class, 50c ; 4th class, 50c. If contested, to opposite Attorney, 1st class, $1 ; 2nd class, $1 ; 3rd class, 50c ; 4th class, 50c. 37. If any case where there is more than one Defendant who sever in their defence— to Plaintiff s Attorney on each additional issue, one half of the amount he would have received had there been but one issue. 38. The fees as to evocation slmll be as ia actions above $60, if allowed. If rejected, a fee of $3 to each party. 39. On every dilatory exception maintained or not, on every demurrer to action when dismissed, and on every plea dismissed on demurrer, fee to successful attorney, 1st class, %'A ; 2ud class, $2 ; 3rd class, $1.50 ; 4th cUitis, $1. An additional fee to opposite attorney of, 1st class, $2 ; 2nd class, $1.50 ; 3rd class, $1 ; 4th class, 50c. 40. On every exception, exception declinatoire ou d, la forme dismissed, to successful attorney, 1st class, $3 ; 2nd class, $2 ; 3rd class, $1.50; 4th class, $1. 41. It Plaintiff be permitted to amend his declaration after the tiling of a preliminary plea or demurrer : To Defendant's attorney, 1st class, .Sl.50 ; 2nd class, $1 ; 3rd class, 75c ; 4th class, 50c. 42. For proceedings respecting the putting in of security, to each Attorney, 1st class, ,'j?1.50 ; 2nd class, !? I ; 3rd class, 75c j 4th class, 50c. 43. On rehearing on merits ordered by Court, in a contested case : To each Attorney, 1st class, $2 ; 2nd class, $1 ; 3rd class, T5c ; 4th class, 50c. m Tables of Adrovatvs' Fees. 2Gy la Id 44. On any pleading when ordered by Court : To rucli Attorney, Ist clues, ^1.50 ; 2nd class, ^l • ^>>'d class, 7/)c; 4tb class, 50c. 4o. For prosecuting to jiidgnieni a report of distribulion not contested, Ist class, ■ii- ""•■'"■• '"-■•'--.vrn.'D\i;!;^::v:r;,;:;-;--'-«^ AppeHrance filed bv « ..J^'''*^V'*"^ <''*''''^ -^9 ; crior «'^ ^ppearanceb>a'; Pf/J""^^^ ^^j crier $3. Factums, clerk $4 • taxtl^o ""'' '^^ ' '^'•'«'- *3. «ail.bond, clerk >(2. '^"^ ^^■''^^ I-V .\LL APPEALS Bail-bond for he vl^Tr ^^"""^ ^'^rk $5^ ^^ ^'• ^'» of costs (taxar oiYndZ-^-H' ^'^^'''^ *^' "^-^ -^24. ^^rtior,,,.-^ ^^^ jj^.^^on nnd ceriihcate), clerk .$i. <:r::;::;;::::;^'°^"""-'-'- "rnitn ""'""'""' " *"""^ "'■ '"- Court, PreUminafyTxcep.ro'iVi'rJ''"^ -"ontioned above, clerk t2 Prohibition; See ),",°°f "' 'tmurm, clerli $4. *^- 272 The Code of Civil Procedure, Rules, tax $1. Rules copies, clerk 5()c. Searcli for a (ietermined period, clerk 20c. Search general, tor each year, clerk 20c. Writs of Mandimus, Prohibition, Certiorari and hahnascorpuit, clerk $4. Copy 50c. TABLE Of Fkkh uv thk Phothonotahy of" tiik Sii'krior Corux, includ- ing TIIK TaxKS I'AYAULK Ul'ON CEKTAIX PUOCKKDISOS nKKOIlK THIS CoIUT, IN TIIK Dl.STKI(!T OK MoXTUKAL. if 4' M NATIIIK OF I'ROCKEDINOS Acte of discontinuation, 1st class, cases over ?1,000, 30c ; 2nd class, cases over $400, 30c ; 3rd class, cases over IIB200, 30c ; 4th class, cases over $120, 20c ; 5th class, over $100, 20c. Acte of ratification of title, including notices, $8. Each copy of notice, 50c. Affixing the seal of the Court, 10c. Answers to faits et articles, 1st class, cases over $1,000, $1 ; 2nd class, cases over $100, $1 ; 3rd class, cases over $200, $1 ; 4th class, cases over $120, ."JOc ; .^)th class, cases over $100, 30c. Answer to any motion, 1st class, cases over $1,000, $1 ; 2ud class, cases over $400, $1 ; 3rd class, cases over $200, $1 ; 4th class, cases over $120, 50c; 5th class, case? over $100, 50c. Answer to contestation of declaration of garnishee, 1st class, cases over $1,000, $8; 2nd clads, cases over $400, $7.50; 3rd class, cases over $200, $6 ; 4th class, cases over $120, $3.30 ; 5th class, cases over $100, $3.10. Answer to intervention, Ist class, cases over $1,000, $S; 2nd class, cases over ?^400, $7.50 ; 3rd class, cases over $200, ,$6; 4th class, cases over $120, $3.30 ; 5th class, cases over $100, $3.10. Answer to incidental demand, 1st class, cases over $1,000, $8 ; 2nd class, cases over $100, $7.50 ; 3rd class, cases over $200, $6 ; 4th class, cases over $120, $3.30; 5th class, cases over $100, $3.10. Articulation of facts and answers thereto, 1st class, cases over $1,000, 50c ; 2nd class, cases over $400, 50c ; 3rd class, cases over $200, 50c; 4th class, cases over $120, 30c ; 5 th class, casbS over $100, 30c. Appearance in review, $3. Bail-bond in appeal (Q.B.), 1st class, cases over $1,000, $3; 2ud class, cases over $400, $3 ; 3rd class, cases over $20;i, $3 ; 4th class, case.s over $120, 70c ; 5th class, cases over $100, 70c. Bail-bond security for costs, 1st class, over cases $',000, $4; 2nd class, cases over $400, $3 ; 3rd class, cases over $200, $2.50 ; 4th class, cases over $120, $1.50; 5th class, cases over $100, $1.20. 1! I i 2nd 4tli Tahhs of .[^Irnnitts' Fna. 'I'A Bail-bond under ciipins or other, Ist cla.^s, cases over S1,000, S2.50 ; 2nd class, cases over St^O, $2; i^rd clajs, cases over $200, $l.GO; 4th class, cases over §120,400; .Oth class, cases over .S 100, 40c. Bail-bond sworn, including copy, 1st class, cases over ;?1,000, S3. 50; 2nd class, ca.ses over ;? KM), .S3 ; 3.d class, cases over S200, S2.G0 ; 4th class, cases over $120, $2 ; Rth class, cases over $100, !§2. Bill of costs (taxation^, Ist class, cases over ,S 1,000. .*!l.:i0 ; class, cases over $100, 90c ; .^rd class, ca.ses over $200, 70c ; class, cases over $120, OOc ; 5tli class, cases over $100, SOc. Capias, See M'rits. Certificate of default, of no jdea or other, 1st class, cases over $1,000, 3»c; 2nd class, cases over .$400, 30c; 3rd class, cases over $200, 30c; 4lh class, cases over $120, 20c ; 5th class, cases over $100, 20c. ('ertilicate of last nrocecding, including search, 1st class, cases over . $1,000,1$ I ; 2nd class, cases over $400, .$1 ; 3rd class, cases over $200, .$1 ; 4th class, cases over $120, 8Jc ; r»ih class, cases over $100, 80c. (■ertificate general, nOc. Certiorari, See Writs. (Jlaim, See Opposition a tin tU conserver. Commission rogatoire, 1st class, cases over $1,000, $,'> ; 2nd class, cases over $400, .$4 ; 3rd class, cases over $200, $'^ ; 4th class, cases over $120, $2.10 ; nth class, cases over $100, $1.60. (■ommission rogatoire from another Court, $1, Confession of judgment, Ist class, ca-^es over $1,000, $2 ; 2nd class, cases over $400, $1.50 ; 3rd class, cases over $200 $1 ; 4th class, cases over $r20j $1.30 ; 5th class, cases over $100, $1.10. Con'estation of action, intervention, requHe civile, incidental demand, debats de compte, opposition, improbation {inscription de faux), tierce-opposition, saisie-arret after judgment, reprise d'itistance, and of opposition to ratification of title, 1st class, cases over $1,000, $8 ; 2nd class, cases over $400, $7..50 ; 3rd class, cases over $200, $6 ; 4 th class, cases over $120, $3.30; 5th class, cases over $100, $3.10. Contestation of declaration of garnishee, 1st class, cases over $1000, $7 ; 2nd class, cases over $100, $(3 ; 3rd class, cases over $200, $5 ; 4th class, cases over $120, $4.10 ; 5th clasi, cases'over $100, $3.90. Contestation of writ of prerogative, $6. ('ontestation of evocation, $1.50. Contestation of report of distribution or collocation, Ist class, cases over $1000, $2.50; 2nd class, cases over $400, $2.50 ; 3rd class, cases over $200, $2.50 ; 4th class, cases over .$120, .$1 ; 5tb class, cases over $100, $1. Contrainle par corps, See H'ri/s. • Copy of judgment, not exceeding 200 words, 1st class, cases over $1,000, $1.10 ; 2nd class, cases over $400, 90c ; 3rd class, cases over $200, 80c ; 4th class, cases over $120, 80c ; 5th class, cases over $100, 70c. 18 l\ 274 The Code of Civil Procedure. And for every additional 100 words, 10c. Copy ofjiidg'ment of distribution, $1.50. Copy of judgment of ratification of title not exceeding SOO words, $2. And foreacli additional 100 words, 10c. Dchats dc com/lie, Ist class, cases over §1,000, §7 ; 2iid class, cases over SlOO, #G ; 3rd class, cases over $200, S5 ; 4tL class, cabcs over S120. SI. 10 ; 5tli class, cases over ;?100, $3.90. Decliiralion of garnishee declaring himself indebted, 1st class, cases over$l,00(». 50c; 2nd class, cases over S400, 50c ; 3rd cwTSs, cases over $200, 50c ; 4th class, cases over .$120, 20c; 5th class, cases over $100, 2()c. Deposit on preliminary exception, 1st class, cases over $1,000, $3; 2nd class, cases over .$400, $S ; 3rd cltss, oases over $200, $8 ; 4th class, cases over $120, $4 ; 5111 class, cases over SlOO, $4. Deposit in Jury trials, $21.40 Deposit to be made by aijudicntaire on sale by licitation, $8. Deposition in ex parte cases, 5Cc. Deposition in contested cases, per 100 word.?, 10c. Deposition when taken by stenography, per 100 words, 20c. Discontinuation before inscription on merits, 1st class, cases over $1,000, $1 ; 2nd class, cases over $400, 1 ; 3rd class, cases over .$200, $1 ; 4ih class, cases over $120, 5Cc ; 5th class, cases over $100, £0c. Evocation, on reception of the record, .$3. Evocation when maintained, subsequent proceedings to be paid as in a third class action. Exceptions dilatorv, declinatory or d la forme, 1st class, cases over $1,000. $4.40 ; 2nd class, cases over $400, .$3.90 ; 3rd class, cases over $200, $3.40 ; 4th class, cases over $120, $2.20; 5th class, CHses over .$100, $2. Execution, See Writs. Habeas corpus, See Writs. Incidental dera.tnd, 1st class, cases over $1,000, ,$7 ; 2nd class, cases over $400, $(> ; 3rd class, cases over $200, $5 ; 4th class, cases over $120, $4.10 ; 5th class, cases over $100, $3.90. Injunction, Sse Writs. Improbation {inscription en faux), 1st class, cases over ,$1,000, $!j , 2nd class, cases over .$400, $4.'0; 3ra class cases over $200, ,$4; 4th class, cases over $120, .^3 ; 5th class, cases over $100, $3. Inscription at enquete in ex parte cases, $1,000, 50c ; 2nd class, cases K^ver $400, over $200, oOc. Inscription at enqui'te in contested cases, 1st class, cases ove $1,000, $1 ; 2nd class, cases over $400, $1 ; 3rd class, cases over $200, $1. Inscription on merits of action, intervention, requete civile, incidental demand, improbation and dibats de compte, ia exparte cases, 1st class, cases over $1,000, $3.50 ; 2nd class, cases over 1st class, cases over 50 c ; 3rd class, cases ^ IV Tahh'S of Advocates' Fees. 27;') ooo, )ver )ver )ver lases ove lases \vile.) jarte lover $400, S2.50 ; :Jrd class, cases over i?200, $1.80; 4tli class, cases over $120, 81 ; r)tli class, cases over $100, 90c. Inscription on merits vt' action, intervention, reqm'tc cirile, incidental demand, improbation and drOati ert, auditor, practitioner or other, 30c. Justification of solvency, Ist class, cases over .$1,000, 50c ; 2nd class, cases over S400, 50c ; 3rd class, cases over $2o0, 50c ' 4th class, cases over $120, 20c : 5th class, cases over $10o, 20c. Jury list, for preparation, including panel, $2. Licitations : — For all proceedings in a suit in licitation of an immoveable property, $10. * N.B.— Tliis fee is not exigible when the confes.>»ion has been made on the day of the return or on the next juridical day. 276 The Code o^ Civil Procedure. On every additional immoveable property, $3. Title deed, i?4. Criers' fees on sale, S4. Tourt house tax on such proceedings, SIO. The purchaser must deposit for the registrar a further sum of List of exhibits at enqucte, 30c. J/aniamu9, See Writs. Motions, See PetitiojiK. Notice of demand of ratification of title (not exceeding 200 words), 50c. Each additional notice (100 words), 10c. Opposition to judgment, 1st class, cases over Sl,000, S8 ; 2nd class, cases over $400, $7 50 ; 3rd class, cases over S'iOO, SG ; 4th class, cases over $120, $3.30 ; 5th class, cases over $100, $3.10. Opposition ajin d'annultr, afm de charge or a/in de distraire, 1st class, cases over $1,000, .$3.50; 2nd class, cases over $400, $2.50; 3rd class, cases over $200, .$2.10; 4th class, cases over $120, $1.80 ; 5th class, oases over $100, $1.60. Opposition afin de consertrr or claim (according to amount claimed), 1st class, cases over .$1,000, $2.50 ; 2nd class, cases over $400, $l.e0 ; 3id class, cases over .$200, $1.40; 4th class, cases over $120, $1.30 : 5th class, cases over $100, $1.20. Opposition to a report ot distribution or collocation, $2. Opposition to ratification of title, 1st class, cases over $1,000, S5 ; 2nd class, cases over .$400, .$3 50 ; 3rd class, cases over $200, $2.50 ; 4th class, cases over $120, $2.50 j 5ih class, cases over $100, $2.50. Order for faits et articles, 40c. Copy, iOc. Petition or motion to amend writ, 1st class, cases ovei $1,000, $2 ; 2nd class, cases over $400, $2 ; 3rd class, cases over $200, $2 ; 4th class, cases over $120, 50c ; 5th class, cases ov?r $100, 50c. Petition or motion for attachment (conlrainte par corps), 1st class cases over $1,000, $2 ; 2nd c'.nS'', cases over $400, $2 ; 3rd class, cases over $200, $2 ; 4th class, ca?es over $120, 50c j 5th class, cases over $100, 50c. Petition or motion to homologate report of expert or practi- tioner, 1st class, cases over .$1,000, $2 ; 2nu class, cases over $400, $2 ; 3rd class, cases over $200, $2; 4th class, cases over $120, 50c; 5th class, cases over $100, 50c. Petition or motion for monies, ^st class, cases over $1,000, ,•^2 ; 2nd class, cases over $400, $2 ; 3rd class, cases over $200, .$2 ; 4th class, cases over $120, 50c ; 5th class, cases over $100, .50c. Petition or motion for sale <- hi folic enchire, 1st class, cases over $1,000, $2 ; 2nd class, cr.sos over $400, $2 ; 3rd class, cases over $200, $2; 4th class, ca^es over .$120, 50c; 5th class, cases over .$100, 50c. looo, i200, JO, I) l8t 3rd 5th lacti- lover lover Tablrx of Adioiiitrs' Frrs-. 277 Petition or motion for hahens corpus, Isi class, cases over §1,000, $2 ; 2n'i class, cases over 8400,^2 ; 3rd class, case> over S200, S2; 4th class, cases over S120, 50c; 5tli class, cases over $100, 50c. Petition or motion to appoint curator to a judicial siuronder, Ist class, cases over Si, 000, $2; 2nd class, causes over §400, $2 ; 3rd class, cases over S20\ S2 ; 4th class, cases over ^}>r20, 5nc ; 6tii class, cases over $100, 50c. Petition or motion to retain purchase price, Ipt class, over $1,000, $2 ; 2nd class, cases over $400, $2 ; 3r(i cl-iss, cases over $200, $2; 4th class, cases over $120, 50c ; 5th cLiss, cases over $100, 50c. Petition or motion to take up instance, 1st cla?s, cases over $1,000, $1.50 ; 2ud class, eases over ,$400, $1.50 ; 3rd class, oases over $200, $1.50 ; 4th class, cases over $120, 50c; 5th class, cases over $100, .^Oc. Petition cr motion to call in absentees. 50c. Petition or motion not nientiotieii above. 1st class, cases . ver $1,000, $1 ; 2ni class, cases over $4i)0, $1 ; 3rd class, cases over $200, il ; 4th class, cases over $120, 50c ; oth class cases over $100, 5nc. Petition (requrte lihellre), .•j;8. Petition for certiorari, $4. Pica, See ConfeMatif^nn. Preliminary exceptions, 1st class, cases over $1,000, $4.40 ; 2nd class, cases over .$400, $3.90 ; 3rd class, cases over $200, $3.40; 4th class, cases over $120, $2.20; 5th class, cases over $100, $2. Possession, Sec Wrlf^. Proces-verbal of imjjrobation, Ist class, cases over .^^1,000, $2.50; 2nd class, cases over $400, $2.50 ; 3rd class, cases over $200, $2.50; 4th chirs, cases over ;,M-0, $1; 5th class, cases over $100, $1. Prohibition, See WriU. Quo warranto^ Sen Writs. Receipt of record in review, other than cases of Montreal $1. RecordinK any document, per 100 v/ords, 10c. Rcqni'tc libel I ('e, $8. RequHe cirile, Ist class, cases over $1,000, $5 ; 2nd class, cases over ■-;;400, $4.50 ; 3rd class, casfs over $200, $t ; 4th class, cases over $120, $3 ; oih class, cases over $100, $3. NATI'tlK (IK l'HO('Ki:()IN(lS. jases leases leases Return of writ of sumin )iis, s'iisie-;pii/erie, Kaisie'rei^endivition, attachment liefore judi^ment and rupiai. 1st class, cases over $1000, $').H0 : 2nd cl vas, cases over $400, $5.30; 3id clas«, cases over $200, $l.S0;4tli class, cases over $120, $3.30 ; 5th class, cases over *100, $3.30. Return of writ of capias in cases under S*^0, $2 80. Return of writ of saiyic-arret after judgment, $1. 278 The Code of Civil Procedure. ;«, »'■' Iletura of writ of inundamKi, (juo wurra/do, injiiuction, pro- hibition or any other prerogative writ, $4.80. Return of commission rogatoire, $1. Rule on/aits et articles^ ^Oc. Each copy, 10c. Rule nini or other, 1st class, cases over ,$1,000, COc; 2nd class, cases over $400, 50c ; :!rd class, cases over $200, 40c ; 4th class, cases over .$120, 60c; 5ih class, cases over $100, GOc. Soisie-arrct, saisie-i/af/erie, saisie-recendication, scire facias, Summons (See Wi-its). Search, 20c. Search general, 50c. Security for costs, 1st class, cases over $1,000, $4 ; 2nd class, cases over $400, $3 ; 3rd class, cases over $200, $2.50; 4th class, cases over .■^120, $1.50; 5th class, cases over $100, $i.20. Stif/pociia^ 40c. Each copy, 10c. Tierce-i)i>positi in, 1st class, cases over $1,000, $7; 2nd class, cases over $400, $6; 3rd class, cases over $200, $5 ; 4th class, cases over $120, $4 10 ; ^>th class, ca;ies ove • $100, $3.90. Transmission of a re ord to Court of Q. B. (in appeal), 1st class, cases over $1,000, $4.50 : 2nd class, cases over $400, $4.50; 3rd class, cases over $200, $4.50 ; 4th class, cases over $120, $2 ; 5th class, cases over $100, $2. Transcription of proceedings for Court of Q.B. (in appeal), p. 100 words, 10c. Venditioni exjyojias, venire. facia.H (Sco Writs). Writ of summons, saisie-gagerie, saisie-revendiration, attach meni before judgment, capias or any other writ, Isi class, cases over $1,000, $4.80 ; 2nd class, cases over $400, $3.50; .3rd class, cases over $200, $2.80 ; 4th class, cases over ^^ 120, .S2 ; 5th class, cases over $100, $1.80. Writ of alias, ditto, ditto, 1st class, cases over $1,000, $1.80 2nd class, cases over $400, $1.50; 3rd class, cases over .$200 $1.30; 4lli class, cases over $120, $1 ; 5th class, cases ove $100, $1. Each copy of writ, 1st class, cases over $1,000, 30c; 2nd class cases over $400, 30c ; 3rd class, cases over $iOO, 30c ; 4th class, cases over $120, 10c ; 5th class, cases over $100, 10c Writ of capias in actions under $60, $1.70, Each copy, 10c. Writ of mandamus quo toarranlo, injunction, prohibition, error, ficire-facias, certiorari, habeas corpus and coercive ira{)ri- sonmei.t, .$1.30. Each copy, 30c. Writ of venire-facias, 1st class, cases over $1,000. .$7; 2nd class, cases over $400, .$G ; 3rd clasL, cases over $200, $5.50. Writ of execution and possession, l^t class, cases over $1,000, $2.50 ; 2nd class, cases over $400, $2 ; 3rd class, cases over 200, $1.80; 4th class, c.<\se3 over $120, $1.20; 5th class, cases over $100. $1. I! 11^ ?8i| Tables of A s, cases of §25 and under, 40c. Bail-bond otiier, 1st class, cases over .§60, 40c ; 2nd class, cases over .§40, 40c ; 3rd cla.-^s, cases over §25, 40c ; 4th class, cases of §25 and under, 40c. Bill of costs, 1st class, cases over §60, 50c ; 2nd class, cases over §40, 40c ; Sni class, cases over §25, 40c ; 4th class, cases of .§25 and under, 20c. Certificate, each, 20c. Claim, 1st class, cases over .§60, ,§1.50 ; 2nd class, cases over $40, §1.50; 3rd class, cases over §25, §l;4th class, cases of §25 and under, 7(ic ; incases of the City of Montreal of §50 and under, 20c. ('ommission rogatoire, Ist class, cases over §60, §1.50; 2n(l cla?s, cases over §4'*, §1.20; 3rd c1h«s, cases over §25, §1.20 ; 4th class, cases of .§25 and under, 30c. Commission rogatoire, \'vnvn another t ourt (for the execution), 1st class, cases t)ver §60, uoo; '2w\ class, cases over §40, 60c ; 3rd class, cases over §25, *i0c ; 4th class, cases of §25 and under, (jOc. Commission rogatoire, from another Court (for examination ot witnesses), Ht class, cases over §60. 70c ; 2n(i class, cases over §40, 4Uc ; 3rd class, cases over §.'5, 40c ; 4th class, cases of $2"* and under, 40c. Confession of judgment, 1st class, cases over §60. §1.10: 2nd class, case? over .§tb, jM^c; 3rd class, cases over $25, 70c ; 4th class, cases of .§25 and ander. 20c. Contestation of acticm, intervention, reqartr: ru-i/c. incidental demand, opposviion, :aiprobation (inscription en J(iux), debats Se comple, saifitt-arret after judgment, 1st class, cases over $60, ^.10: 2nd e'ass, cases over §40, §1 : ."^rd class, cases over $25, 58c ; 4tii eiaas, cases of ."^2") and under, 30c. r®ntesfcition of declaration of garnishee, 1st class, cases over |M% $1.90; 2nd class, cases over §40, ,^1.70 : 3rd cl.iss, cases ■MV $25, §1.20 : 4lh class, ca-ses of .§25 aw* mder, 70c. Cofy«t judgment. 1st class, csises over 'mju^ 70c; -'nd class, Tnhl(!i (if .Ulrocatr'^' Fas. 2.^1 cases over S40, noc ; 3rd class, cases over SG."), 40c : 4tli (■l!i>9. cases of $25 and under, 20c; in the cases of the City of Mont- real of $50 and under, 30c. Copy official of a document, not including certiticatc, l^c per IdO words. JJebats lie cnmpt/\ 1st class, cases over $60, $1 90 ; 2nd clas.-;, case over $40, $1.70 : 3rd class, cases over $25, $1.20 ; 4tli class, c^se of $25 and under, 70c. Declaration of garnishee declaring himself indebted. 1st class, cases over .$60, 30c ; 2nd class, cases over $40, 30c ; 'iid class, cases over $25, 20c; 4th class, cases of $25 and under, 10c. Deposition in writing, 1st class, cases over $60, 50c; 2nd class, cases over $40, 40c; 3rd class, cases over $25, 30c; 4th class, cases of $25 and under, 20c'. Deposit on Dreliminary exceptions, Ist class, cases over ."^6(>, $4. Evocation, including attendance and transmission of record, $2. Execution (See M'nVs). Improbation {inscription en faux), 1st class, cases ovor f^hO, 80c; 2nd class, cases over $40, 80c; 3rd class, cases over .$2'.. 70c; 4th class, cases of $25 and under, 50c. Incidental demand, Ist class, cases over $60, $1.90 ; 2n(l class, cases over $40, $1.70; 3rd class, cases over $25, $1.20; 4th class. cases of $25 and under, 7t»c. Inscription on merits, in default and ex parte cases, 1st class, cases over $60, 40c ; in contested cases, 1st class, cases over $60. 60c. Intervention, 1st class, cases over $60, $1.90 ; 2nd class, cases over $40. $1.70; 3rd class, cases over $25, $1.20; 4th class. cases of $25 and under, 70c. Motion, 1st class, cases over $60, 50c; 2nd class, cases ovor $40, 40c ; 3rd class, cases over $25, 30c; 4th class, cases of $25 and under, 20c. Opposition to judgment, 1st class, cases over .$60, $2.10 ; 2ad class, cases over $40, $1 ; 3rd class, cases over .$25, 50c ; 4th class, cases of $25 and under, 30c. Opposition ajin d'annu/er, afin de dis'.raire or atin de char'/r, 1st class, oases over ."^60, ,$1.90 ; 2nd class, cases over $40, $!.70 ; .Srd class, cases over $25, $1.20 : 4th class, cases of $25 and under, 70c; in cases of the City of Montreal of $50 and (inder, 20c. Opposition a tin de con^erver or claim, 1st class, cases over $60, Si. 50; 2nd class, ca>os over $40, $1.50; 3rd class, cases over .$25, $1 ; 4th class, cases of $25 and under, 70c ; in cases of the City of Montreal of .$50 and under, 20c. Petition, Isi class, cases over $60, 50c ; 2nd class, case-, over $40, 40( ; 3rd class, cases over $25, 30c ; 4th class, cases o^^lij •wi under, 20r Plea, 8e« C"'Hi. ■elation. Possesion, See Writf. ■f ' 282 The Code of Civil Procedure. rrochs-verbal of improbation {inscrijiiion de/nux), Ist class, cases over $60, $1 ; 2n(l class, cases over $40, $1 ; 3rd class, cases over $25,'$ I ; 4tli class, cases of $25 and under, $1. Return of writs of summons, attnchraent before judgment, saisir-gagerie,miHie-rcvendication, 1st class, cases over $30, $2.80; 2nd class, cases over $40, $1.80; 3rd class, cases over $25, $1.10 ; 4tli class, cases of $25 and under, 80c. Return of writs of saisie-arrel after judgment, lot class, cases over $')0, $1; 2nd class, cases over $40, $1; 3rd class, cases over $25, 50c; 4tli class, cases of $25 and under, 30c. Report of distribution (drawing up of), 1st class, cases over $60, $2 ; 2nd class, cases over $40, $2 ; 3rd class, cases over $25, $1.50 ; 4th class, cases of $25 and under, .$1. Jieqw'ie civile, 1st class, cases over .$60, $2.80; 2nd class, cases over $40, $1 80 ; 3rd class, cases over $25, $1.10 ; 4th class, cases of $25 and under, 80c. Rule i'or/aits et articles, 20c. ("opy, "lOc. Rule nisi or other, not exceeding 200 words, on every addition- al 100 words, 10c, 1st class, cases over $60, 30c ; 2ud class, cases over $40, 20c; 3rd class, cases over $25, 20c; 4tii class, cases of $25 and under, 20c; in cises of the City of Montreal of $50 and under, 30c. Copy, 10c. Search beyond two years, 20c. Security for costs, 1st class, cases over $60, 90c ; 2nd class, cases over $40, 70c; 3rd class, cases over $25, 70c ; 4th class, cases of $25 and under, 40c. Saisie-arret, aaisie-gagerie, salsie-revendication^ summons. See Writs. Subpccna, 20c. Copy, 10 c. Writs of summons, 5at,s«e-(7ff^ene, saisit-revendication, sdisie- arret, before judgment and appeal, 1st class, cases over $60 $1.70; 2nd class, cases over $10, $1.30; 3rd class, cases over $25, $1.10; 4th class, cases of $25 and under, 50c ; in cases of the City of Montreal of $50 and under, 40c. Each copy, lOc Writs of a //as do do do, 1st class, cases over $60, 90c; 2nd class, cases over .$40, 70c ; 3rd class, cases over $25, 50c ; 4th class, cases of $25 and under, 30c; in cases of the City of Montreal ot ,$.50 and under, 30c. Writs of execution, possession, attachment (saisie-arret after judgment) And contrainte j^a?- corps, 1st class, cases over ,$60, $1 ; 2nd class, cases over $10, 70c; 3rd class, cases over $25, 50c 5 4th class, cases of $25 and under, 40c ; in cases of the City of Montreal of $50 and under, 40c. Wviio[ alias do do do, Ist class, cases over $60, 50c ; 2nd class, cases over $40, 40c ; 3rd class, cases over $25, 30c; 4th class, cases of $25 and under, 20c; in cases of ';he City of Montreal of $50 and under, 30c. -.1 V Tables of Adroratcs' Fees. 283 Ok Fkk For eve 1. u a i> (i ii t; TABLH I'AYABr.K TO CLK.nKS OK THK DISTRICT MAOISTPATKa (J0URTS,IX('UDI.N0 TIIK DITIKS IMPOSKD ITON CERTAIN PHOCKKDINO Bi:Kt)KK SAID ('olllTS, $ C. ry writ ot summons 40 copy 10 original mhpamt 20 copy 10 judgment, including copy '25 writ of (>xecution or attuclimont 3") co])y 10 entry of oppodilion, iillowed by a District Mogistrate 20 order, rule or other procedure to be served 25 copy 10 TARIFF ft m Ok Feks ok THE Clerk ok the Crown' $ c. For every original .Si/ ^/>«^Ha 20 official coi)y of s?yyrtL'«a 10 rule or order I 00 official copy of rule or order 50 Bench warrant I 00 Judge's order 1 00 bail-bond 1 00 certificate or minute of bail-bond given viva voce in open Court 1 00 motion for new trial or in arrest of judgment. 1 00 'viv'xX. o\ certiorari 2 CO official copy of a writ of certiorari,ior the return of the constable when such copy is required.. 1 00 writ of seizure l 00 copy of all documents, per 100 words 10 (( i( 11 11 u (.' a a i( ii (( (( « ii i( i( ( ( i( a a II (( (( onr Fees on the issuing of a writ ok " Habkas-Cori-ls Order on petition Writ Order on writ Copy of commitment Service or writ Jailor's return to writ Recogr /.ance Conveyunce of jirisoner from jail. $ c. 1 00 2 00 I 00 50 50 2 50 1 CO 50 ^u \ ^i \ 1 1 s|, 284 The Code of CiiHl Procedure. TARIFF 1. Fori jve 2. i< II 3. u i< 4. II 11 5. II u 7. ^'' 0 Buildings and Jin-y fund $0 60 TARIFF Ok Fkks Ai.r.owKD on proskcltionh rxoKU thk Lu-ensk (KXCKI'T IN CASKS TAKKN nKKuHK Sri'KKIOR AM) ClR Col'RTS.) a. To tiik Ulkuks : For original summons " each copy of ditto original auhpana each copy of ditto original warrant each copy of ditto original bail-bond each copy of ditto warrant of seizure and sale " commitment each witness sworn drawing up every deposition minute of proceedings in each case conviction copy of conviction bill of costs certificate of taxation « (( i( II II « ii H . 999 , lOOO 1001 1002 , lOO.l 1004 , 1005 1006 1007 1008 . 1009 1010 ion 1012 1013 1014 1015 1016 1017 1018 1019 1021 1022 1023 1024 1025 1026 1027 l'>28 1029 , 1030 1031 1033 J0S3a 10336 1033c P. C.P. Abt. 1103 1'04 ,.. 110«} 1107 • iM ••••• 1 108 1109 1110 nil 1112 978,979 980, 981, 994 982, 983 983 983 9P 983 983 983 983 984 , 985, 98G 980 986 986 986 986 986 986 987 988 989 990 991 992 993 995 1001 1000 998 996 999 997 1003 1006 964 960 961 996, 957, C.C. P. OP. Art. Art. 1033./ 963 1033* 964 lOSSi 959,963,967 1033* 969 1033/ 968 10.33m 970,971 1033m 971 1034 1035 1036 "^37 lOlt) 1041 1042 10-»J 10! 4 10, . lOld 1047 104 R 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 1060 1061 1063 1065 1068 1070 1072 1076 1077 1078 1083 1084 1085 1086 1087 1088 ..49, 1126, 1007 1008 lOO't 1010 1114 1115 lllti 1117 (118 1119 1120 1121 1122 1123 1124 1 1 25 1114 r.4 55 56 57 58 1130 1135 1127 1128 1129 ri35 1137 1139 1140 1143 1144 1145 1131 1146 1147 1132 1148 1133 I I i; 5;; (C. C. p. mean* the Former Code.) {C.P. " « Present Code.) 298 The Code of Civil Procedure. 0. C.P. Art. 1090 C.P. Art. 1134 1091 1135 1099 1101 1138, 1141 1142 1102 1103 .. 1132, 1147, 1148 1131 1104 1149 1110 217 1115 43 1116 46 1117 47 1118 1209, 1210 1119 ...... 1211 1120 1212 1121 1213 1122 1214 1123 1215 1124 1216 1125 1217 1126 1218 1127 1219 1128 ■ 1220 1129 1221 1130 1222 1131 1223 1132 1224 1133 1225 1142 44 1154 1155 ....1193, 1194, 1195, 1226 1273 1156 1227 1157 1228 1158 1229 1159 1230 1161 1231 1162 1232, 1233 1163 1234 1164 1236 1165 1236 1166 U37 1167 1238 1168 1200, 1239 1169 1224 1170 1241 1171 1207, 1242 1172 1243 1173 1244 (C. C. P, means the Former {C. P. " " Present CO. P. C. P. Art. Art. 1174 1245 1175 1246 1176 1247 1177 73, 74, 1208, 1248 1178 68, 74 1178o 69,1249,1251, 1252 1179 1249 1180 1250 1181 1251 1182 1252 1183 12.5:i 1184 1254 1185 1255 1186 1256 1187 1257 1188 59 1189 60 1190 59 1191 1258 1192 1258, 125D 1192a 1260 11926 1261 1192c 12G2 1193 1263 1194 1264 1195 1265 1196 1266 1197 1267 1198 1268 1199 1269 1200 1270 1201 1271 1202 1272 1203 1273 1204 1274 1205 1273 1206 1275 1207 1276 1208 1277 1209 1278 1210 1279 1211 1280 1212 .- 1281 1213 .... 1282 1214 1283 1215a 61 12156. 62, 1284 Code.) Code.) Table of Concordance. 299 c. c. p. Abt. 1215c C.P. Art. 1286 CC. P. Art. 1268 C.P. Art. 1333 1215i 1286 1259 1334 1215c • •■• • •••••••• 1 Jol 1288 1260 1335 12\5f. 1261 1262 1263 1264 1265 1336 12]5o 1215A 12151 1290 1291 1337 1338 1339 1216 63 1340 1217 1218 64 6R 66 1267 1:^68 1341 1342 1219 1269 1343 1220 1221 1292 1293 1270 1271 1272 1344 1345 1222 1294 1295 134G 1223 1273 1347 1224 1296 1274 1349 1225 • •• •••••••••• \ Zly ( 1298 1275 1.350 1226 1276 1277 1352 1227 1299 1300 1354 1228 1278 1278a 1355 1229 1301 1356 1230 1231 1302 1,{04 12786 1278c 1278(1" 1278c 1279 1357 1358 1232 1305 1359 1234 1235 1306 1307 •••••••• •»»• loll 1312 • ••••■•••••••ft lOlO 1314 1360 1362 1236 1237 1238 1239 1280 1281 1 aO^ .... •«•• •••• 1283 1363 1364 1365 13G6 1240 1241 1315 13ltj 1284 1285 1367 1368 1242 1317 128(1 1369 1243 1244 1245 1246 1318 1319 1320 1321 1287 1288 1289 1290 1291 1'>0'7 X md V ^ *• •••»•• • • • • 1293 1294 1295 1370 1371 1372 1373 1247 1 24o ••.. 1249 1322 1323 1324 1374 1375 ._ 1376 1350 1325 1377 1251 1326 1378 1252 1327 1296 1a%/I •■••••••••• ••••• 1298 1299 137'J 1253 1264 1328 1329 1380 1381 1256 • ••••• »••••■• ±\Jij\J 1382 1266 1300 „ 1383 1257 1^^9 1301 1384 (C. C. P. (C, P. means the Former " " Present Code.) Code.) I 300 c. 0. p. Abt. 1302 The Code of Ci C.P. Art. l.'?85 vil Procedure. C. C. P. Art. 1339 1341 C.P. Art, 1310 1303 1386 1388 . 1431 1304 1342 . 1432 1306 1389 1390 1343 . 1433 1306 1344 . 1434 1307 1391 1392 1345 . 1435 1308 1346 . 1436 1309 1.^93 1347 . 1437 1310 1394 1395 .........1098, 1396 1097, 1397 1387 1399 1400 1401 1348 . . 1438 1311 1349 . 1439 1312 1313 1350 ... 1440 1351 1441 1314 1352 . 1442 1315 1353 . 1443 1316 .... 1354 1444 1317 1359 6 1318 1402 1403 1404 1360 I 1319 1361 2 1320 1321 1322 1405 1406 C. C. ^•7 •••• •••••lit 138 145 C.P. 1323 1324 1407 1408 , 181 . 1111 1325 • •••• •••• •••■•t l~rUJf 1410 . 1105 1326 147 . 1113 1326ffl 1411 1411, 1412 192 . 1099 13266 193 298 . 1100 1326c........ 1413 1414 1415 1416 141G 1416 1417 . 1348 1326rf 1326c 1326/ 299 1351 371 373a , 1353 . 986 986 1326^ 1326A 1326/ v)0^ .••••••« ••••••^•••t 685 686 687 688 1223 1230 1231 1254 986 1326A; 1418 1326Z 13267/1 1326n 1327 1328 1419 1420 • ••* • • •>••••• L4^ L 1422 1423 1424 1425 ,. 208 .. 312 .. 314 371 1329 1256 372 1330 1313 2161a to 2161/ .. 1097 1333 1426 719 1334 1427 2271 2272 832 1335 1428 833 1336 2273 3275 834 1337 1308 889 1338 1309 2276 „.... .. 836 (C. C. p. means the Former Code.) (.(7. P. " " Present Code.) INDEX TO THE CODE liln Abandon de Bums. — (See Abandonment oj Property.) Abandonment op Property — Consequent upon coercive imf.rlsonnient 849 et seq. Who may make, for benefit of creditors 853 Procedure where demand made by unsecured creditor for $200 or upwards 854 Service of demand same as in ordinary summons 855 Demand must be tiled with claim under oath, etc 856 Demand may be contested bv petition 857 Procedure where party making the demand is not resident in the Province 857 How made 858 ** '' in case of capias 928 Declaration, how made, where debtor does not con- test demand 859 Statement must be tiled within four days of service of demand 859 Judge may extend delay for making 859 In case ot partnership, where partner dead or absent 8'^^ Statement must be sworn to, ana show, etc 861 Declaration and statement to beliled by debtor 8G2 Effect of abandonment 863 Provisional guardian appointed 864 Powers of such guardian 8G4 Guardian must give notice of abandonment, how and to whom 865 Meeting to appoint curators and inspectors 866 Court must appoint curator and inspectors chosen by majority in number and value 867 Judge may appoint guardian and curator in certain cases 868 Such appointment mad: at instance of, etc 869 Powers of such guardian and curator 869 Formalities and notices in such case 869 Curator to take possession of and administer property abandoned, etc 870 Other property 870 Proceedings by way of seizure, etc., suspended, etc. 871 Except where judge orders continuance 871 Curator must advertise his appointment 872 Where debtor acquires new property 873 Security by curator 874 Curator ad hoc to enforce security bonds « 874 H 390 ThfC Code of Civil Procedure. Curator subject to summary jurisdiction of judge 875 Property not belonging to debtor, but in possession or curator — recovery 876 May exercise rights of action ot debtor — preliminaries to such exercise 877 May sell property of debtor— authorization 87b When authorized may direct sheriff to seize and sell immoveables of debtor 879 flow sheriff executes warrant 879 Distribution of moneys realized from property of debtor .... 880 Dividend sheet..,.. 880 Contestation of claims or dividends 881 Debtor is bound to appear and answer questions con- cerning statement 882 And judge may order production of books, and examine consort of debtor or other persons.... 883 Rules goveruing the examination of such persons 884 Oontestation of statement by curator duly authorized 885 Grounds for contesting .' 885 Delay for contesting 886 Delay for proving grounds of contestation 887 Penally incurred by debtor in case of fraudulent omission, fraudulent misrepresentation, secre- tion 888 If contestation not proved, or statement not contested, debtor discharged, and effect of discbarge 889 Review and appeal from judgments and orders ren- dered in certain cases of abandonment of pro* perty 890 Debtor is discharged only to amount of proceeds of sale 891 Curator must keep register 892 Which may be consulted duriuj; reasonable hours.... 892 Deposit of register in court 892 And prepare and file certificate of proceedings 892 C a lias (See Capias) B^betaeq. Abandonment — how made under 928 Abrogation. — In certain cases of laws concerning procedure in force at the time ot the promulgation of this Code.. 1 Absbnob. — (See Absentee, Possession — Provisional.) Absbntbk.— Defendant, service on, when he has left Lower Canadasince commencement of suit 85 How summoned 136 It in another Province of Canada 137 Security for costs by ^ 179 Power of Attorney from 177 ■WWIWiH— »— Index to the Code. 391 Articulation of facts, how served upon 361 In executions against, liow doors, trunks, etc., may be opened 620 Simple attachment before judgment of property of, how served 937 How summoned to answer seizure by garnishment... 679 Curator to 1331, 1337 Acceptation. — Sous ben6fice d'inventaire (See Inven- tory).. , 1405 Account. — Judgment ordering, must ti.Y deltiy for rendering account 566 How rendered and sworn to 567 Necessary contents 568 What must be placed under receipts , 669 What may and what may not be put under expendi- ture 570 When party may demand provisional execution for balance 571 Wiiere parties accounted to must take communication of. Delay for contesting 572 Parties accounted to, whose interests are the same, must appoint the same attorney 573 Delay for answering contestation 574 Efl'ect ot failing to file contestation, answers or replications 575 Issue joined, reference to arbitrator, practitioner or accountant 576 What judgment on the account must contain.. 577 If defendant fail to render 578 ACCODNTANTS AND PRACTITIONERS.— In whai matters cases may be referred to, to what rules subject, powers and report of 410 May demand their costs, etc., before report be opened 414 Report of, how made available or impugned.^ 415 If valid, to form part of evidence 416 Reference to an accountant in case of an accounting 576 Accounting 566 Act of Parliament. — Abbreviated reference to 107 Questions as to constitutionality of 114 Actb Acthbntiqck. — Improbation 22S Juagment by default upon 532 Provisional execution ot judgments upon 594 Deposit of copy when odginal lost 1327 ;&'! »'l^ 392 The Code of Civil Procedure. AcTE dbNotoriI;t£ AcTK DB Vknte par ShIirif. AcTB D'OrruES RIiellbs AcTB sous Sbing PrivI;. — Denial of signature Judgment by defaultupon Provisional execution of judgment upon Actions.— (fee Shares.) Actions at Law. — Against public officer Place of instituting , Personal, where brought Parties may appear in person, or by attorney Informd pauperis Personal, where brought Against insurance company For separation from bed and board, or tor separatio: of property only, where brought Against public officer, where brought In warranty, and continuance of suit, where Upon several causes of action arising in difiFerent districts When real or mixed, where brought 100, In matters of successions If defendants reside in different districts If sole judge in district cannot sit, where Must be brought in proper court Person to bring must have an interest therein But interest may be merely eventual Who may be parties to Foreign corporations, or persons Defendant must be summoned (See Summons, Jurisdiction.) Action en Declaration D'HypoTHiiQUE : — Appeal to Q. B. from C. Ct Service of judgment Surrender of hypothecated immoveable Execution against immoveable inC. Gt Action BN Bornagb. — (See Boundary.) Actions, Joinder OF. — (See Joinder.) T. Action en Gabantib. — (See Warranty.) Action bn Partaob. — (See LicUation.) AOTION BN Separation db Bibns.— (See Separation be- tween Contorts.) 1425 760 586 208 532 594 88 04-104 94 8;j 89-93 94 95 96 97 !>8 101 103 ' 102 103 i04 76 77 77 78, 81 79, 80 82 ■r 1148 1059 291 183 1037 109O 1 Index to the Code. 393 Action bn Rbddition ub Comptks — (See Account) 5«56 Action bn SfcPARAxioN dk Corps. — (Sec Separation he- tween Consorts) 1090 Actions of Boundary.— (See Boundary) 1059 Actions Possbssoirbs. — (See; Foaseasory Actions) 1064 el aeq. Action of Improbation.— (See Improbalion) 225 Action HYPOXiifccAiRB. — (See If yp-theeary Recourse). 1025 Action Qui TViwi.— (See Qui Tarn Actiona) 89, 180 Ardrbssing thb Court. — Order of 311 AdJournmknt.— Courts may prolong terms by 12 When may be made by prothonotary 13 On account of absence of witness 305 What opposite party may require in such case 306 Court may order deposition to be taken in certain cases 307 For other causes 308 Conditions imposed by the Court 309 Adjudication. — (See Execution, 6ale) 662 Of moveables, eflTect of 605 Of immoveables, effiect of 778 et seq. In case oflicitation (See Licitation) 1053 «/ aeq. Adjudication ov Qukstions op Law upon facts ad- mitted 509,512 Administratburs Dt: Successions 80, 143, 833, 836 Admissions — Allegations of opposite party not denied are ad- mitted Ill Interrogatories upon articulated facts, when facts are held to oe admitted.. 364 Noted by judge, make proof ^54 Party failing to file contestations, answers or replica- tions within delay, held to admit account 575 Admissions and Denials. — In pleadings, how made 109 Advbktisbments. — Of judicial sale of immoveables, how made.... 716 et aeq. Sheriff continues, in spite of oppositions 730 If oppositiooB are decided after day fixed 733 Of sale for false bidding 767 20 ii iiiil m .394 The Code of Civil Procedure. 1029 1048 1051 1353 Of hypothecary recourse against immoveables where owner unknown Of sale by licitation Where sale by licitation was prevented by opposi- tion Of sale of immoTeables belonging to minors 1352, Of sale of immoveables belonging to disqualified parties 1357 Of sale of moveables taken in execution 638, 639, 640 Of sale of moveable property of succession 1399, 1404 Adviskmknt.— (/> Commissioners tor taking in C. Ct 1127 Must accompany oppositions by third parties 118G Must accompany oppositions to judgments 1105 For petition of right 101.3 In hypothecary recourse, where owner unknown 1027 Must accompany pt'tition in revocation of judgment.. 1 iwl Accompanying motion to have case heard before its turn in Review 1202 Must accompany petition for rertiorari 1-94 In matter of petition for letters of verification 1413 Affixing Seals.— (See Seal$) Ajournbme.nt.— (See Adjournment.) Alias Whit of Exkcutiox 13G2 e' setf. G04 Alienation — By debtor of immoveable under seizure 715 Of property belonging to minors (See Immoveables) 1341 ct seq. Alimkntaby Allowance. — Provisional e-vecution can be had in action for 594 To person civilly imprisoned 843, 844 Allegation:^. — Must be paragraphed, etc 108 Repetition of 10i> Allowance.— (See Alimentary Allowance.) 843,844 Amendment. — To writ of summons, declaration, the defence and other pleadings, without costs and without leave 513,515 Of summons, declaration, defence or other pleadings, with leave 51G Of copies of pleadings, before service of answer to same 517 After service of answer • 517 Judge may sua motu order immediate amendment of certain irregularities 518 Of return of service, etc 519 Of pleading, to agree with facts 520 Non-joinder of party does not entail nullity if amended 521 Cannot be allowed if it changes nature of demand.... 522 Conclusions may be corrected, modified, etc 522 Service of— delay 523, 524 Joinder of new defendant, effect of, service 525 Of irregular service 526 nuii i 396 The Code of Civil Procedure. Amiablrs Compositburs.— Not bound to observe certain formalities 413 Not bound to follow rules of law 1436 (See Arbitrator, Arbitration.) Ancient Boundaries. — {^ee Jtoundariet.) 1059 ANIMAI-9.— Jurisdiction of justices of peace in cases of danaages by animals 63 Annonoks. — (See Advertisements.) Annulling or Litters Patent. — (See Letters Patent)... 1007 Answeiis. — •Rules applicable to (See Pleas and Pleading) 202 etaeq. To interrogatories upon articulated facts must be direct, categorical and preciae 367 Ifnot,may be rejected 368 Appeal. — To Q. B., general appellate jurisdiction 42 To Q. B., when lies from final judgment of Superior Court 43 ToQ. B. from Circuit Court, when it lies 44 To Q. B. from judgments rendered in Magdalen Islands 45 To Q, B. from interlocutory judgments 46 Respective jurisdictions of the Court of, sitting at Montreal and Quebec 47 Evocation to Superior Court 49 To Court of Review 52 To the Privy Council 68 Proceedings in appeal to the Queen's Bench (See Queen's Bench) 1209 Proceedings in Review (See Review) 1189 Proceedings in appeal to the Privy Council (See Privij Council) 1249 Lies from final judgment rendered by judge in jury trial 492 Procedut'e in such case, conclusions 493 From judgments and orders in abandonments of pro< pert;^ 890 From decision of judge as to release from capias 923 In matters of proceedings affecting cocporations 1006 In mattei*s of annulment of letters patent lOIO In matters of petition of right 1020 :No, lies from certiorari 1306 Appeal Bond.— ExecutioE of. 1216-1217 I 47 Index to the Code. Appearancb. — Maj be either in person or by altoraey How and when filed for defendant Default When defendant may be relieved from default In cases of certiorari ,.... ;vj7 83 Irtl 1»32 ApPEL.--(See Appral.) Application dks Dif^osiTioNs Contknuks dans ok Couk Apposition des fcictJLLlsj.— (See Seals, a^xiny of.) Arbitration. —(See Arbitrators.) Reference to, by parties in case before ('ommissioners* Court Submission to. — Definition of submission to. Who may enter into submission to Appointment of arbitrators What deeds of submission to, must contain Must be in writinf^ In what cases submission to, becomes inoperative.... Award cannot be rendered unless majority of arbi- trators agree Award must be in notarial form Execution of extra-judicial 1413, Arbitrators. — (See Arbitration.) When and what matters court may refer to. Need not be sworn, otherwise subject to the same rules as experts Powers of Siay demand their costs, etc., before the report be opened. Homologation of, award of, bow obtained, how opposed M Reference to, in an accounting Appointment of Duties of. Revocation of appointment Recusation Proceedings if third arbitrator is called in Award of, is invalid, unless two or three are agreed on each item How awards are made Enforcement of extra-judicial awards 1443, Death, etc., of arbitrators, effect of Arpbnteur.— (See Surveyor) lOGO- ARRiRAQBs DE Rentks. — (^See Rents). Arrest in Civil Matters and Coercive Imprisonment. — (See Jtnprisonment.) I2T6 1431 143J 1433 1434 1435 1438 1441 1442 1414 411 412 413 414 417 570 1433 1430 1437 1439 1440 1442 1442 1444 1438 10G2 832 398 The Code of Civil Proirdinr. Annftr kv Mains Tiiucks. — (»See Afachment hejore Judg- ment) i>40 Anuftr SrMPLE.— (See Altnchmenl le/ore Judgment.).... 931 Articulatid Facth. — {Fails et Articles.) Interrog^atorics on (See Interrogatories upon Artirulat- ed Facta) 359 et seq ASSALLT OR DxTrKRY.— Commissioners' Court has not jurisdiction in matters of. GO Assignation. — (See Summotis, Jurisdiction.) Assignation dks Ji Rfcs. — (See ./«r// Trial, furors.) Assignation dks TfcvfoiNH.— (See Witnesse,^.) Assi'HANCB Company. — Jurisdiction in suits against 05 Attachmknts. — In District Magistrate's Court 1288 In Commissioners' Court 1258 et»eq. Attachmbnt hefohe Judomknt. — .Simple attachment {Arret simple). — In what cases creditor may effect 931 How effected 932 Writ obtained by affidavit of certain parties 933 liy whom issued 934 How seizure is efflected : may be made in another district 935 Copy of writ must be served upon defendant 936 Service if defendant be absent or concealed 937 How defendant may obtain restoration within three days 938 Issue, form, execution and contestation, how governed 939 Attachment by Garnishmtnt. — What and when allowed 940 How effected, and tenor of writ 941 Writ clothed with all the formalities of ordinary summons, and subject to certain provisions.... 942 Certain provisions of the Code applicable to 943 If declaration of garnishee be not contested 944 Contestation governed by rules contained in certain Articles 945 Attachment in Kevendication — Who may exercise right of, affidavit required 946 Tenor or writ, necessary indorsation 947 Formalities of issuing, of service, of execution 948 f Imifix to the C^ e. 31»0 049 950 or. I 1022 1103 954 259 114 1 22 When effects may bo returned to possesdiou of defend- ant, and when raay be delivered to plaintiff... Inventory may be required before diich delivery, es- tablishing, etc If neither party demand effects they remain with guardian or sequcstrutor In matters of |M>tition of right fiy wife of her moveables in action of separation from bed and board Attachment/or Kent. — Owner or lessor may caiiso certain effects to bo seizod May seize in recaption within eiijht days Provision? regulating service, and declaration of.... Attor.n'ev.— (See Advocate, C/tarv/e of Atlornejf) Attornby Gbneual. — Constitutionality of Acts How described in writ of summons Duty to prosecute certain corporations 978 et seq. AuDiBNCE.— (See SiUiiiffs.) AuDiTKUK.s. — (See Accountants.) Addition.— (See Inscription of Law, Trial, ProoJ and Ileariny in Default Cases, Review, Appeal.) Award. — Ofarbitrators, homologation of (See .4r/>i7ra/orj», Ar- bitration) 417 Avis— (See Notice). AvocAT. — (See Advocate). Bail. — In certain matters of capias 899 Release upon, in matters of capias (See Capias. )...9\Q et seq In matters of Habeas Corpus Bail Bond. — Assignment of, by sheriff Bailiff. — Return (See Return). Cannot serve in cases in which he is interested Testimony of Cannot bid or purchase at sale. Must make minutes of sale Cannot receive more than price of adjudication When seizures at a distance are to be effected by bail- iff of locality To what costs entitled for service out of the dis 1120 912 148 320 660 661 663 616 l\ it !i trict . 116 400 The Code of Civil Procedure. Execution of capiasby 907 Cannot act as attorney before Commissioners' Court 1273 Benefice D'lNVENTAiRE,—(TIKlCATK OF HYPOTHECS. — lust be returned with writ of execution How procured What it must contain 771-773 Form of, changed in certain cases 774 Xot needed in cases of resale for false bidding 775 Sheriff allowed costs of 776 Privileges of others than debtor 777 Is prima facie evidence : how it may be contested 808 Amendment of, discharge of claim mentioned there- in ; how effected Registrar deemed officer of the Court as regards How extinction of claims mentioned in, may be proved Must be filed with application for confirmation of title Certiorari. — Circuit Court has concurrent jurisdiction with S. C. Revision of judgment by When obtainable Petition to obtain Service of notice of petition , Effect of such service To whom petition for, must be presented Opposite party may appear ana make objections 1298 Exigencies and formalities of writ 1298, 1299 Service and return 1300 Duty of persons to whom it is addressed 1301 Their liability on failing to comply 1302 Notice of issue of writ and return day must be given to opposite party 1303 809 8.10 812 1072 57 1292 1293 1294 1295 1296 1297 Index to the Code. 403 Appearance of opposite party, inscriptioa for hearing Judgment upon No appeal lies Procedure in other cases of Xo certiorari from Magistrate's Court Ckssion dr Biens.— (See Abandonnunt of Proper L;/.). ... Challenge of Jurors. — (See Jurif Trials Jurors.) CuAMnERS.— (See Judfje in Chambers.) Change of Attouney 1S04 1305 130G 1307 1290 853 44f) 70 259-2G5 Death, etc., of attorney before hearing on the merits causes nullity of all subsequent proceedings — Exception Notice must be given by withdrawing attorney Cases in which no notice required When party ceases to be re|)resented before hearing on the merits, opposite party must notify Effect of parties notified failing to appear or appoint another attorney Party who rc-vokes power of his attorney must ap- pomt another Attorneys' powers cannot be revoked until paid fees and disbursements May take place in appeal CuARfiES. — Opposition to secure (See Opposition) Opposition to, upon immoveables under seizure Chemix de Fer. — (See Railway.) Chkque.— (See Bills and Notes.) Chicoitimi. — Exceptional provisions concerning 250 2G0 261 2G:i 2G3 265 204 1237 724-725 726 Appeals from, where tried Choix des Jtres.— (See e/t/ry Trial.) Chi'RCiies. Circuit Court has ultimate jurisdiction in all suits for building and repairing, etc Fahriques and vestries of, how summoned CiRcriT Court. Jurisdiction of Ultimate jurisdiction of Original jurisdiction Evocation to, from Commissioners' Court Certiorari to, from Commissioners' Court and J. P.... Appellate jurisdiction 39 47 4;:8 .')4 133 54-58 54 55 56 57 58 'i- :ltF «1 i 404 The Code of Civil Procedurr. ! ! * I Powers of, and of its judges and officers, powers of clerk of 1126 Commissioners, etc., for receiving affidavits in S. C, have like power in ■• 1127 Costs in district, cannot be greater than if defend- ant were sued in his county 1128 Jurisdiction for adistrict U28 Jurisdiction for a county 1129 What suits may be evoked from, to Superior Court, how flnd when to be effected 1130 Execution of judgment in (See Execution.) 1131,1134 Procedure in cases susceptible of Appeal or Kevieto 1135 Procedure in cases not susceptible oj Review or Appeal 1 136 Non-appealable cases are summary 1149 314 1311 1126 902 1273 832 Civil Death. — Effect on testimony of person civilly dead Civil Status. Registers of (See Registers.) Clerk op the Circuit Court. — Powers of. May issue capias Clerk of the Commissioners' Court. — Cannot act as attorney of parties CoKRcivE Imprisonment. — (See Imprisonment, Capias, etc.) Refusal of witness to answer or produce object 330-333 For resisting seizure 620 For failure to comply with writ of mandamus 1001 Collocation and Distribution of Moneys. — (See Exe- cution) 794 et seq. Commencement of Proof in \SK\iViii;—{de preuve par f'crit). Certain evidence serves as Commercial Papers.— Are liable to seizure CoMMissAiBBS. — (See Commissioners, Examiners.) COMMISSIONF.RS. — For the examination of witnesses (See Commissions.). To receive affidavits in C. Ct., powers of 316 641 For affixing seals. 380 1127 1363 PI Index to the Code. 405 For taking affidavits to be used in any court In any district of the province 25 Same, appointed in other provinces 20 Same, appointed in foreign land 27 Same, designation of 28 Harbour, jurisdiction C5 COMMISSIOXRRS' (JoURT. — Jurisdiction limited to certain localities 40 Jurisdiction of 59,60 How and where held, decisions to be according to equity and good conscience 1253 Powers tor keeping order and enforcing judgments.. 1254 Recusation 1255 Recusation must be in writing 1256 Where all the commissioners nre recused 1257 May grant interventions, and what attachments 1258 These -ay be executed beyond limits of district of issue 1259 Return ot warrants for attachments 1259 Declaration of garnishee 1260-1261 Costs of garnishment 1261-1262 Minors over fourteen years may sue for wages in 1263 Delay upon summons ' 1264 Tenor and contents of summons 1265 Service of summons in 1266, 1267 When cases may be evoked to the Circuit Court.... 1268 Any improbation to have etfiect of evocation 1269 Transmission of record in cases of evocation, security for costs required 1270 Effect of evocation 1272 Who may act as attorney before 1273 Penalty for acting as attorney for, without right.... 1274 W^hen case may be heard on return day 1275 Reference to arbitrators 1276 Cases to be tried summarily 1277 What tesitmony is sufficient — who cannot be a witness 1278 Court may compel attendance of witnesses 1279 Court may regulate costs 1280 Execution of judgment and costs theieof 1281 Opposition in 1282-1283 Commissions for the Examination op Witnessks 380-390 When, maybe obtained 380 Delay for making application 381 Granting depends upon necessity shown by affidavit. 381 How commissioners are chosen 382 May be addressed to one person only when parties consent 383 Judge fixes number of commissioners who must be present to execute 384 l)i ' I' •< 'I • <; ■ -. i^ 406 The Code of Civil Procedure. Certain interrogatories annexed to commission 385 Instructions signed by judge must accompany 380 Return of, what to contain, must be under seal, how opened 387 Parties applying for, must see after its execution 388, 38^ Failure to return, will not prevent proceeding with the suit, in certain cases. 390 Commissions Rogatoiiiks. — (See Commissions for the examination of witnesses.) Community. — Attachment against moveable property of, when wife may demand Inventory ot, dissolved by death; who may demand and take part in 1102 1388 « 140 141 142 143 203 217 CoMPAGNiE— (See Company/, Company. — Joint Stock — unincorporated,service upon " — having no known place of business, service upon — incorporated, service — foreign, how summoned. — seizure and sale of shares in 041, 042, 000 CoMPARUTioN — (See Appearance.) Compknsation. — Plea of, form of.... Court may declare between principal demand and cross demand Compepknce dks Tbiblnaux. — (See Jurisdiction.') CoMpfexENCK DEH Temoins. — (Scc WHncsses.) Complainte.— Action en complainte 1004 e^ seq. CoMPROMiH.— (See Arbitration.) 1431 Compter. — (See Accounts.) CoMPULSOiREs.— (See /napec<. — Court cannot ailjndicate beyond, but may reduce..... 11.3 May be corrected, modified, etc., when 522 Confession ok Judgment- — How and when made 527 Prothonotary must identity person appearing to make, and how 528 Proceedings on, if accepted 529 If not accepted, notice must be given 530 Effect as to costs, if plaintiff does not recover more than conceded by 530 If s'^me only of the defendants make 531 Its effect in the ('ommissioners' (,'ourt 1275 CONFIDKXTIAL RkVKL ATIOXS. — When witness cannot be cora))elled to reveal •!32 Confirmation of Titlk. — {Discharge Jrom IJijpothecs.) Who may obtain 1007 Title deed to be lodged with prothonotary, and notice to be obtained from him 1008 Where application should be made if property be in different districts 1008 Formalities and publication of notice lOOy (>f immoveables by fiction of law I'tTO Application for, must be presented on day fixed 071 Certificates must be filed with application, what they must contain 1072 Provisions relating to certificates from registrar 1073 Opposition* of hypothecary creditors, delay for filing, and when necessary 1074 Opposition dispensed with 1075 (^rciiitors of vendor or assignor may over-bid .... 1070, 1077 Applicant may retain property at highest bid 1078 If no out-bidding takes place within delay 1079 Duty of applicant who desires to discharge the pro- peityfrom hypothecs 1080 If sum deposited be insufficient, or none be mention- ed in deed, value must be determined by experts 1081, 1082, 1083 Judgment 1('84 Judgment subject to certain hypothecs and claim... 1085 Distribution of price 108b Copies and registration of judgment, and costs thereof 1087 What the word " Hypothec" includes 1088 CongI; de l' Assignation 154 CoNofc Defaut.— How defendant may obtain 154 I j; i : 408 The Code of Civil Procedure. CoNSKiL PrivI:.— (See Prtt'.y Council.) 68, 1249 CoNSKiL PE Famille.— (See Family Council.) 1331 et seq^ Conservatoire. — (See Attachment be/ore Judgment.)... 955 CoNSBRVATORY ATTACHMENT (See Attachment be/ore Judgment) Consignation.— (See Tender.) Consorts.— (See Separation) When one can be examined as witness in matters re- lating to the administration of the other's property When entitled to custody of inventoried eflFects Constitutbd Rents. — Seizure of Constitution de Nouveau Procureor.— (See Change qf Attorneys.) 259 et seq. Constitutionality, — 955 1090 314 1397 700 Of Statutes, questions affecting, notice to attorney- general... 114 Contempt of Court.— Imprisonment for 834 Disregarding writ of i/a6«a« Cor/JMs 1118 For refusing to appear and give information respect- ing the value of certain immoveables .... 1358 Contestation. — Of the action 164 et tea. Of petition for letters of verification 1416-1421 Of writ of capias. (See Capias] .. ....9\9€t seq. Of report of distribution 813 et seq. Upon the merits (See Merits, Pleas.) 191 et seq. Continuance of Suit. — Case read^ for judgment not retarded by change of civil status of parties 266 When case rcpu tod ready for judgment 267 Attorney aware of death or change of status of his client, to notify opposite part^ 2G8 Proceedings had subsequent to notice«re null, suit suspended until continued 269 By whom a suit may be continued 270 How effected 271 Continuance held to be admitted if not contested within prescribed delay 272 How opposite party may compel a 273 How proceedings are continued 274 ■IK^ ImlcF to the Code. CoNTRAiNTB PAR Corps.— 'See Imprisonment.) Copy.— Of writ of summons for defendant If, of pleading is incorrect, parly who served may 400 832 127 517 900 35 8;{3 1318 furnish another Of declaration and affidavit in matters of capias, how served Of authentic act, deposit of, to be used ad an original .1327-1328 CORONKR.— Serves writ instead ot sheriff, where latter is inter ested If sheriff al?o coroner, prothonotary acts for him Liable to coercive imprisonment Must keep duplicate register Corporate Offices. — Usurpation of. — (See Usurpation) ,. 081 et teq. Corporations. — Appeal to Court of Review in certain matters con- cerning municipal corporations 52 Foreign corporations may sue here 71) Plead m their corporate name 81 Description in writ of summons 122 Service upon 142,143 Service of, in another Province, in a certain case 213 Peremption takes place against 281 Summons for examination befo'e trial, etc 286 How answer to interrogatories given 363 Shares mavbeseized 641 How .' 642, 643, 666,667 How, must make declaration to seizure by garnish- ment.. 684 Corporations illegally formed^ p()sition to seizure and sitle of im- moveable For sheriff" to return opposition For putting in bid for immoveable Necessary at sale of immoveables before adjudication. For payment of purchase money at sale of immove- able To file oppositions to payment For reporting scheme of collocation or distribution... For contesting report of distribution For payment of moneys levied To hie statement of abandonment of property For contesting statement of debtor who has aban- doned his profieriy for the benefit of creditors.. For proving grounds of contestation For service of declaration and affidavit in matt rs of capias For pleading to action in maiter of capias In matters of contestation of capias In matters of mandamus In matters of the annulment of letters patent For receiving o; pDsitions to licitationj For oppositions tor payment in licitations For filing oppositions to title of confirmation In matters of oppositions to marriage 1107, On pleadings in C. Ct Upon summons in actions between lessor and lessee.. In summary matters 1154, 1 LOS, 1156, 1157 1159, Dpoii summons in Commissioners' Court Upon summons in non-contentious proceedings On suirmons of relatives for family council For removal of seals For presentation of petition for letters of verification DfeLAi.ssEMKNT.— (See Surrender.) 41 r> 2o:> 224 232. 271 27:j 297 442 , 524 572 57t 612 638 681 682 6.S!» 6'.l3 728 729 7H5 755 758 7'»2 794 813 828 859 886 887 909 920 922 995 1009 io:o 1056 1074 1108 1139 1153 1161 1264 1308 1333 1378 1414 416 The Code of Civil Procedure. Dblibeu6.— (See Advisement.) Dkmand ok Paymknt. — Not necessary under subsequent execution ir. same suit G09 Dkmandk en JrnTicK, — (See Action.) Demandk en Nl'LLite de Decret 784-788 DiSMANDE DE CESSION— (See Abandmment of Pro- perty) 853 et seq. Demands. — Particulars in declaration 123 Incidental. (See Incidental Demand.) 215 ('ro33. (See Cross JJenimi.) 2K'> Supplementary 215 Demurrer. — (See Inscription in Law) l'J\ Issues of law raised by, in C. Ct. in non-app. cases... 1144 DENfcoATioN. — (See Venial.) Denial OK Document 200 Denial of SioxATuaE 203 DfepENS. — (See Costs.). 549 et seq. Deposit.— Accompanying preliminary exception 165 Effect of depositing sum claimed in Court, in cases of declinatory exceptions 170 In matters of improbation 227 For stenographers' fees 295 For jury trial 434 By bidder at sheriff's sale 738, 749 ct seq. For review in matters of capias 924 For petition of right 1016 For confirmation of title 1080 For opposition to judgment 1169 In Review 1196 Of copy of authentic Act 1327 et seq. Deposition ok Witnesses. — (See Witn'-sses, Affidants, Oaths) ) .'i\^d et seq' When unable to attend through illneSS, etc 307 Before experts 405 In defaultor Ex parte c&sea 419 Made orally and in open (-ourt in non-app. cases in Circuit Court " 1142 Depositary.— (See (Jundian ) 621 et seq. Index to the Code. 417 Depot.— (See Deposit.) Dernier EQriPKi'R. — Attachment before judgment in the case of 031 Affidavit for obtaining writ 933 Dksavbu. — (See Disavowal.) ...251 el seq. Dkscription. — Of object of demand in writ or declaration 124 Of parties in writ of summons 122 Designation. — (See Description .) DisisTBMBNT.— (Sie Z>t.»con///i'ean(;e.) 275 et seq » DlFKAMATION. — Commissioners' Court has not jurisdiction in action tor 60 In action of damages for, proceedings in /oriml pau- peris not allowed 89 DiFKERENCR. — Between French and English texts of C. P. C 2 Dilatory Exckption.— (See Exceptiom) 177-190 Disavowal, — Grounds for 251 When, n)ay take place 252 Must be maile by party himself, or his specially em- powered attorney 253 How made 254 Proceedings upon 255, 25G, 257 Effect of, if maintained 258 Dischargb from Hypothecs. — (See Confirmation of Title.) 1067 etxeq. Discontimance. — When allowable , 275 How effected 276 Must be served, except when made nt trial 276 Itseftect 277 Party who has effected, must pay costs before begin- ning again 278 Discovery and Inspection of Dociments. — Persons who may be examined 286 Rules governing tiie summoning, examination and punishment of witnesses, apply 287 Depositions as evidence in the case. 288 Examination may be by prothonotary or judge 286 1 IIP 418 The Code of Civil Procedure. Procedure where dispute arises in examination before prothonotary Inspection of documenta Costs of examination Discussiov. — Rules proverning exception of Stay of suit when the delendant has a right to de- mand Rules governing exception of 287 289 290 190 177 190 39 553 555 Di.sQUALiFiKD Peiison.s. — (See Interdicted Persons, Mi- nors.) 1331 et seq. Dispositions. — Declaratoires et interpretatives I to Distraction ok Costs. — To attorney, goes with condemnation to. Who may execute for Distribution.— t)f moneys levied upon moveables. — (See Execution.) 070 et seq. Of moneys in abandonment of property 880 Of price in cases of confirmation of title ,.... 1086 District MAfiisTRATK's Court. — Jurisdiction of 61 Procedure before 1284-1291 Proceedings arc summ.iry 1284 Also proof and hearing 1284 Rules of non-appealable Circuit Court cases applic- able to, when not inconsistent Certain articles relating to Commissioners' Court apply to All writs are signed by magistrate or clerk Attachments ,...., Garnishment proceedings in ...1288, 1289 No proceedings can be removed from, to another Court 1290 Execution of judgments in exceiS of $40 may be a;/a:nst immoveables 1291 The writ of execution 1292 Documk.nts.-- * Inspection of^ production by witnesses 333, 334 Domicile.— (See Election of Domicile.) Of party appearing in person 84 DoMMAOKS — (See Damages.) 1285 1286 1287 1288 Itidcr to the Code. 119 Dossier.— (See Record.) Dower. Customary, not rlischarged by sheriff's sale EcRiTS.— (See Writings.') Eglise.— (See Church.) Ejectment. — (See Lessor and Lessee). Provisional execution can be had in certain cases Election. — Mandamug ajrainst corporation refusing to make What the writ orders in such case Requisites for validity of the election Election of Domicile. — Of party appearing in person, held to be at office of the Court By advocates and attorneys Service at domicile elected Seizing creditor's, at sheriffs office Tender may be made at the domicile elected in a contract 781 594 902 9ft8 099 84 86 129 710 585 seq. Emancipation.— Of minor, family council 1331 et Emphyteusis. — Right of, not discharged by sheriff's sale 781 Emprisonnement en MATifeRES CiviLES.— (See Imprison- ment). Envoi en Possession.— (See Possession) 1422-1425 EpoD-x — (See Consorts, Separation.) Equipeur, Dernier.— (See Dernier Equipeur) 931-933 Error. — (See Amendment.) Clerical, etc., in judgment, correction rj45, 54fi ENCHiRES. — (See Bidding and Sale, Sale, Sheriff's Sale.) In case of forced lioitation 1052 In case of confirmation of title 1076 EnqvAte. — (See Proof.) Enqu^te et Audition.— (Siga 350 Alterations 351 Admissions of parties to be 354 Report of experts, accountants, etc., if valid, form part of evidence In Commissioner's Court.... (See Witnesses, Proof.) Evocation.— From Circuit Court toS.C 49 From Commissioner's Court to C. Ct 56 From Circuit Court to S. C 1130 From Commissioner's Court 1268 et seq. Of cases from certain inferior courts, when lies 1292 ExAMEN' DEs Debitkl'rs APRfes JuoKMKXT.— (See Ex- amination of Debtors) 590 et seq. EXAMEX DES DiuirEuiis. — Qui ont fait cession de leurs biens, par un cr6ancier ou le curateur 882 c/ to 416 .1278 etse(i. ExAMEN DE TiMoiNS.— (See Witnesses.) Examination of Debtors akter Jitdoment Judge may order production of books, etc., and cer- tain persons T. Rules governing Costs of examination 590 591 592 593 EXAMKN PfifeALABLE DBS PARTIES BT IX.SPECTION DK DOCU- MENTS.— (See Discovery) 286-290 Examination ok Witnesses. — (See Witnesses, also Dis" covery and Inspection oj Documents.) Iiidc.i' to the Code. 421 Examiner.— (See Proof, Commiisions.) ExcEi'TiON'S, Prkliminaby. — Must be urged by motion 164 Notice of motion, delay 164 Deposit necessary before motion presented 105 All preliminary exceptions are urged at same time, except 166 Recourse of plaintiff if he thinks exception is filed to retard suit 107 If defendant files his defence, proof is had upon all the issues, costs in such cnse 168 Foreclosure to plead 167, 109 Declinatory Exception. — Nature and effect of 170 Reference to competent Court, or dismissal of action. 170 Court may refer to competent Court at any stage of the case 171 And \h\& propria viotu 171 Costs 172 Exception of Lis pendens 173 Exception to the form. — Grounds of - 174 Irregularities in writ or service entail nullity only when not remedied 175 Waiver of grounds of 176 Copies of pleadings, etc , may be amended without leave before service of answer and with leave after answer {See Amendments) 517 Dilatory Exception.— <^ro\\nf^9 177 Effect of, if founded on delay for makmg inventory and diliberating 178 Security for costs 179 Security for cos's in popular or qui tarn actions 180 Proceedings may be stayed until security given isi For delay to plead until warrantors have been called in (See Warranty) 183, 184 Exception of Discussion 190 Exception i l'Appbl 1220 Exchequer Court. — Jurisdiction of. 67 Ex4cuTEURS. — (See Executors.) Execution.— For expenses of witness i<36 Returned nulla bona, creditor may obtain examina- tion of debtor 590 Exemption from 598, 599 Provisional. — When it can be had • 594 Cannot be ordered for costs 695 Cannot afterwards be allowed if judge omits to order 596 422 The Code of Civil Procedure. Power of Court to refuse or allow in certain cases... 697 Compulsory. — Can only be effectea by a writ 600 Writ, to whom addressed 601 Formalities of writ 602 Remains in force while unsatisfied 603 Lost writ, a/mswritcan beobtained 604 Or creditor may obtain a venditioni exponas of goods seized but not sold 604 Where debtor deceased or stat iS changed 605 Execution upon property of heirsi, etc 606 When, may be effected in name of deceased plain- tiff 607 Of some physical act, how effected, officer may use force 608 Demand of payment not necessary under subsequent execution in same suit 609 In real actions. — Writ of possession < 610 Execution of such writ 611 In personal actions. — Delay for, exception in certain cases 612 What property creditor may seize 613 Different means of, may be simultaneously adopted.. 614 When creditor has received part of judgment claim, mention must be made on writ 615 Where property is situated more than nine miles from place where writ issues 616 Upon, moveable property.— Seizure of moveable propf'rty 617 Hours during which seizure may be made 618 Cannot be made on Sundays or holidays, except ... 619 Proceedings if debtor be absent, and no one to open doors,etc 620 Depository oflfered by debtor 621 Guardians or depositories related to seizing officer in certain degree cannot be appointed 622 Second seizure in hands of guardian 623 Powers of guardian and depository 624 Sufficiency of 625 Sheriff may demand advance for safe keeping 626 Which demand may be renewed 627 Right of seizing officer where lie cannot find suitable guardian 628 Seizure is established by minutes {jtfocis-verhal) 629 What minutes must contain 630 Debtor must sign minutes if present 630 Se zure of current money 631 Minutes must be in triplicates, to whom copies given 632, 633 Where goods seized are ot perishable nature 634 NtHice of sale to debtor 635 Sale ot moveables not to be commenced before 10 a.m., nor continued after 5 p.m 636 Index to thv (Uulv. 423 Goods seized may be removed to place more favour- able for sale G37 Publication of sale, where and how made (J38 Delay forsale (338 Publication of sale in certain cities, publication of and delay 639 How the sale is effected in seizure before judgment... G40 Debentures, notes and shares, etc., may be seized G41 Shares of corporation, how seized 642,643 Opposition to seizure (See Opposition) 644 et m/. Sale of moveables (See Sale) 655 e( seij. Pajiment ond distribution of vionei/s leried. — If no opposition, may be paid by officer to creditor, otherwise must be returned into Court 67() Return of writ of 671 Plaintiff has preferential claim, exceptions 672 If debtor be insolvent, creditors must be called in, and how Claims, how made 67.'l 674 675 676 Order of distribution Order of collocating judicial costs Seizure by Garnishment. (See Seizure by Garnishment.) 677 Execution upon Immoveables. — Against whom only can be made Constituted rents For municipal taxes and assessments To whom writ is addressed, formalities Writ executed by sheriff or one of his officers When partly in one district and partly in another Sheriff may exact sura sufficient to meet disburse- ments before seizing Before effecting seizure, officer may demand specifica- tion from defendant; exceptions, liability of latter on failing to specify Minutes of seizure.. Are made in duplicate, service Where no rainutts are necessary Ground rents may be mentioned in minutes, opposi- tions f)r rents in redemption of seigniorial lights cannot retard sale Domicile of seizing party Rules in case of second seizure 711 Possession of immoveables seized remains with debtor until adjudication Appointment of sequestrator in certain case Penalty for cutting limber or deteriorating property. Alienation by debtor during seizure Advertisements. — How made 716, 717 Notice to register Expenses of notice when seizure annulled 699 700 700 701 702 703 704 705 706 707 708 709 710 712 713 713 714 715 719 719 *i f ( 424 The Code of Civil Procedure. CertiHcate of release 720 Suspension of sale and oppositions lilet sea. How sale suspended 771 Bidding and sale. — How and where bids in writing may be given before day of sale 735 What such written bid must indicate 730 Bid must be accotapanied with affidavit 737 Affidavit when bidder is creditor 737 Where bidder not creditor, sheriff may require security or deposit 738 Sheriff must indorse date of filing and return into court 739 Sheriff must furnish list of such bids to officer making sale 740 Immoveables must be sold at door of parish church, except 741 Sheriff may require from seizing creditor certain deposit for expenses before proceeding to sale. 742 How and when put up 743 Sale must not proceed beyond certain amount 744 What conditions of sale must express 745 Bidder must give his name 74(> Verbal bids by proxy 7^0 Minutes are taken 74G What a Md implies 747 Certain parties cannot become bidders 748 Deposit required before bid can be received in certain cases 749 Advertisements need not mention condition 749 Deposit where resale ordered upon false bidding 7jO When deposit may be dispensed with 751 Effect of failing to deposit 752 Deposits to be refunded after adjudication 753 Where several immoveables may be sold as a whole rather than separately.. 754 Delay necessary at sale before adjudication 755 To whom property must be adjudged 756 Proxies, duties and liabilities of persons acting as 757 Delay for payment of purchase money 758 Case of person having hypothec, etc., on property, or opposant, etc., becoming purchaser 759 Purchaser entitled to deed of sale, contents of such deed .' .. 760 Resale for J alse bidding. (See liesati) 761 et seq. Return ofwrit 768 Six days after sale, sheriff must return, etc 769 Certificate of privileges and hypothecs presented by interested party 770 What such certificate must contain 771, 772, 773 Change of form of certificate of hypothecs 774 linh.r In tlir Cinh: )4 )5 )6 )7 )8 XoceriilJcate of liypoihecs need be produccti in i-;t>i' of resale for false bidding Allowance olslieriff KHect of cerMlicHte of livpotliecs t^f^'cct of-'/ieriJl's safe. *^ce S fir tuff's Sit/c). 77 J'at/viint ofmoiu'ns nithoiit cn/localun Col/orntion (tnd (lislrihiition o/ monef/s. — Delay for prepiirini? and reiorting scheme What report must mention ArticU'3 of collocation Duty of pv. Uionotary in making Ortlerof 1. w costs Order of coliocHtion ct other claims Conditional liypolhecs Sum to be reseived in case of unliquidated prior claims llyjjothecary claims dtie with a term of payment (Jiaims for the capital of life rents interest and arrears of rents (Registered claims ami taxed costs Cases in which the record is insutticient to enable the prothonotary to perform a valuation 80'). Experts appointed to establish value of immoveables. Certificate of hypothecs, /jrimu facie evidence, but may be contested, and how Proceedings on production of acquittance of claim... Registrar, officer of court for i)urpose of certificate.... Examination (if persons as to discharge of hypoli.ecs. Case of absence of former hypothecary creditor Delay for contcj^ting report of distribution To what contestation must relate, must be accom- panied by reasons, and served on parly inter- ested Inscription of contestation Costs of contestation are taken out of moneys levied. New report on maintenance of contestation To whom the right of contesting belongs — Party not bound to answer more than ojk contesta- tion on same grounds Proceedings on contestation Motion to homologate report Homologation of part not contested. Homclogjtion. — How granted Proceedings, if person be collocated for sum not due him Sub-col location. — Sub-o|)positinn3 Must be served May be included lu general report, or be reported separately 22 1 1.) 77i> 777 7it;; 704 7 Of) 796 707 70H 799 SOf> sui S()2 803 80 4 804 800, 807 SO (3 808 809 810 811 8.2 813 8n 81") 8 It; H17 818 818 819 820 821 820, 822 82 ;i 824 82.'» 820 ' 1 126 The Code of Civil Procedure. If a debtor fails to exercise his claims against an im- moveable, liis creditor may do so 827 Payment of moneys levied. — After what delay i)artie3 are entitled to "''8 Pro< eedin^s if moneys remain in hands of purchaser.. > Remedy ot parlies aggrieved bv report of distribution. o30 Moneys must be paid back if adjudication be set aside. 831 In case of abandonmrnl of property. — Suspended 871 Oppositions for pai/ment. — (See Oppositions.) Of judgments in Circuit Court. — Jurisdiction of court as to oppositions, etc 1131 Return of writ against imniovftables 1132 Proceedings incidental to seizure and sale of im- moveables are carried on before S. C 1133 Transmission of record on return of writ to iS. C 1134 Of Judgments qf Circuit Court in non-appealable casej. Slay of. 1146 Against immoveables 1147 Wnen dekt does not exceed $40, can only bo had against moveables 47 Writ may issue at once against hypothecated im- moveable and in cases of seigniorial rents . tS Stay of f while case appealed to Privy Council 1249 Of judgment of Commissioners' Court 1281 Ofjudgraent in District Magistrates' Court 1290,1291 KxKCUTOHS. — Foreign, can appear before our Courts 80 Foreign, summons 143 Imprisonment. 833, 836 May demand affixing of seals 1364 Andinventory 1388 Notice to 1389 KXKMl'TIONS FROM Seizl'UB 598, 599 Exhibits. — Filing 155, 160 Must be filed with list 155 Cannot be received in blank 156 List must contain designation of 156 Until tiled plaintiff cannot proceed with demand 157 Common to all parties ...T 158 Cannot be taken out of office without consent and receipt 159 Imprisonment of person retaining 160 Filng 201 Failure to file 201 Delay to file may be extended 201 w^ Index to thv t'ode. V17 EX-PABTI.— Wbeo det'cndrtnt is foreclosed frum ^loading, plain. tiff may proceed 207 If defendant failj to appoint another attorney or appear in person, plaintiff may proceed 263 Proof and liearinfr, and proof in ex parte cases 418 et »eq. In trial by jury, when tLe defendant can proceed 463 Judgment.. 532-534 Gases lie^n^ "znas/e in appeal 1223 In Don appealable cases in Circuit Court, notice 1138 Experts and Vikwkks. — Court ecision oj) '. 500 Factum. — Injury trial 402 For decision of questions of law upon facts admitted 509 In appeal 1223 Faillitk. — (See Abandonment of Proper! >j, Insolvency oJ Debtor.') Faits et Articlks. — (See Interrogatories.) 359 et x(q. False Biddkij. — Liability of Tt)'), T'JG False Bidding. — Resale for. — (.?ee Resale.) 701 et teuiy of person demanding convocation, delay on summons of relatives 1333 Relations and friends forming, must be sworn 1334 Minutes of advice of, must be signed 1335 Superior and (Jircuit (Jouri, and any judge of same, have concurrent jurisdiction 1336 Proceedings must remain of record 133G Faux. — (See 7?rt;.ro6rt9 189 205 2()() v^ 5 79 180 6 io,-> 107 2;!i 2;'. I 232 232 233 233 233 234 234 231 235 23a 235 235 236 w ' i 430 The Code of Civil Procedure. Of Experts' Oath 236 Of Certificate of the due administration of the Oath.... 236 0/ Witnesses' Oath '237 Of Challenge tothe Array 237 O/Challenfje tothe Polls 237 Of Affidavit to obtain Judgment bt/ Default or Er varte. 238 Of Advertisement o/Sher'JTs Sale, Arts. 716, 733 238 For Publication in the Neiospapers of a Notice to Creditors Collocated .'.... 239 OJ Demand of Abandonment upon a Trader to ho has ceased his Payments 239 Of Notice oj Meeting of Creditors for the Appoint- ment of Curator and Inspectors 240 Of Notice of App^'intment of Curator 240 Of Affidavit for Capias. — 1. Against a debtor absconding from the Pro- vinces of Quebec and Ontario 240 2. Against a debtor who secretes his property 241 3. Against a trader who refuses to make an aban- donment J 241 Of Affidavit for Capias founded on Information and Belief 241 Of Provisional Bail Bond , 241 OfBailbond 242 Of Petition of Ri;,ht 242 Of Notice to the Aft'jrnei/-General 243 Of Notice in the Newspap''rs in Hypothecary Actions (/gainst unknown Proprietors 243 Of Writ/or Sale of the Immoveable 244 Appearance of Proprietor or Possessor 244 Of Notice of lAcitation 244 Of Notice of Petition for Confirmation of Title. 245 Of Atfidavit in support of Opposition to Judgment 245 Of Nomination of Experts 246 Of Experts' Oath 240 Of Report of Experts 246 Of Minutes of Family Council...., 247 Of Petition for nomolorjai ion 247 Of Notice by Beneficiary Heir 247 Franchisks. — (See Corporations, Quo warmnt'K) Gag Ks.— (See Wages.) Garantik.— (See [Varranty.) 177, 183 et seq, Gardikn.— (See Guardian.) •....t 621 et seq- Garnishmknt. — Seizure by (See Seizure by Garnishment) 677 et seq. Attachment by (See Attachment by Garnishment)... 940 In Commissioner's Court VZGOetaeq. In District Magistrate's Court 1288,1289 GASPfc.— Exceptional provisions concerning 39 Index to the Code. m Goods Sold and Delivkred.— Judgment by default in actions lor 532 Gbeffe. — Meaning of vrord (See OJfce of th^ Court) 5, §T Grefkier.— (See Circuit Court, Commissioners' Court.) GREvfes DB Substitutions. — Imprisonmenf of 833, § 6 Guardian. — Appointment of Second seizure in hands of Powers of Sufficiency of Must produce effects at time fixed for sale Proceedings to compel, to produce effects Entitled to discharge for efffcts produced Habkas Corpus. — Ad subjiciendum. — Writ of, in civil matters, who may make applica- tions for, and to whom To wliom writ is addressed ApplicaMon for, must be supported by affidavit Formalities of. Wlien returnable Service of. ('onsequences of deftiult to comply with Proceedings con'inusd inntanter on return Judge in vacation may admit to bail when in doubt, and how Writ is then transmitted to the Court to be ordered upon Court may order pleadings in writing: subsequent proceodings Proceedings in Q. I> and S. (J. are similar All costs incurred may be pronounc^'d upon When writ has been refused by one judge, application can only be renewed before Queen's Bene!), unless new facts are alleged 1125 Harbour Commissioners. — Jurisdiction of. 65, 66 Hearing. — (See Proof and Hearing, Inscription.) Heirs. — Service upon 135 Delay for making inventory and deliberating. Dilatory exception 177, 178 Execution against 605,600 (See also SealSf Inventory, Letters of Verification^ etc., etc.) 621, 62'i 623 624 625 657 658 65) 1114 1114 111.'. 1116 1H7 Ills 1119 1120 1121 1122 H'J.'i 1124 'i Wi 432 The Code of Civil Procedure. '! i m Hris.^iKR.— (See /iuUilf.) NoMDAYS. — Whnt days are Persons cannot be summoned on, without leave...... If the day on which anytliinjr ought to be done is or becomes a non-juridical day Courts fannot sit on VV hen seizures can be made on Debtor cannot be arrested on : exception 84 lloMOLOOATION. — Of report of distribmion 820 Of report of exports, accountants, praciitiont^rs...414, -ti; (M" rei)orls of arbitrators ( >f awara of arbitrators 144;>, IJVI'OTIIKCS. — Discharge from (See Co»Jirnia(ion of Title) ('ertain, not dii^charged by sheriff's sale Certificate of, to be hied with his return What sucli cenificate must contain Kcgistrar's certificate of, to be filed with ap[)lica: ion for confirmation of Collocation of conditional, in report of distribution... Due with a term Definition of Appeal lies in all actions in recognition of Kxecution in case of surrender of immoveable sub- ject to Uvi'OTlIKCAUY CUKDITOR.— Of property for which confirmation of title is sought must tile oppositions \\\ I'orllKCAUY RKCOtntSK. — Ai/ainst Immoveables of winch (heown^-rs arc unknown or uncertain. — When creditor may petition for sale of such immove- able What petition must contain Affidavit to accompany.. Proof ordered by Court and publication of notice... Notice, ln)\v given Proceedings, it noi)erson appears wUhin two months. Service of judgment not necessary Execution ofjudgment It proprietor appear before judgment If several persons appear If there be opposite claimants without contestation of pi'tition Proceedings, if one or more known owners are in possession jointly with others unknown 7 125 8 14 619 1, 842 , 823 i, 41G 417 1444 1067 781 760 770 1072 800 802 1088 44 1148 1074 1025 1026 1027 1028 1029 lO.'^O lO.n lo:;2 1034 1035 1C3(> Index to tin Code. i;k{ HVI'OTHKC'ATKK rMMoVK AHf.K. — Voluntary surrend»»r of 580 HiSBAND AND WlFK. — Testimony of 314 Hejiaration between (See Si'j>ara(i< ii) 1090 el sen. Im;."! dk la Madklkixi:. — Exceptional jnovisions concerning 37 Appeal from jiuigments rendered in llic I.M.\r0VKAIiLKS. — KxeciitioM upon G90 I'jxceediinj jive hinnlr d didlaiH in viduc— Alienation of, belonfjinj; to niinots or other diequali- lied persons or substitution?, cannot ke eBected without the permission of a judg*' Formalities required beNne making, experts to be ajjpoiuted, nnd how 134". Duty of ex|ierts, ilieir report I.U4, 131" Wliere applicaiion ba.'ed on giouuds of necessity, account must be prepared Order authorizing sale must fix an upset price If author zation to sell is refused iSale must be mnde judicially, etc, by public auction. Publication of time and place of sale When private sale may be effected Voluntary licitatiou of, held undividedly between a tutor and pupil JS'ot exceediiif) Joxir hiDidred dollars in value. — Judge nuiy ovder sale of, by auction, when Judge may order appearance of persons to give in- formation Notice of sale Judge may exempt from publication I'erson charged with sale of, belonging to minors, etc., must return report ii to Court iMinnsoX.MKNT. For deteriorating immoveable under seizure (' ■trcivc.— {Cimtriii Ic ptr Corps.) When allo"< d Who iiie li lOle to ,. For couu ii.pt of Coiut, resistance of process, etc .... Limit of ini|irisonment in such cases Who cannot be coerced by imprisonment in certain ca-es Wiien against tutors, curators, etc , etc Formalili- s neces-ary before carrying into execution. Formalities of writ flow effected 45 el sefj. 1311 . 1343 1 340 1348 1 3 19 i.3r)0 13.-11 1352 13.') 1 i3r.5 13,-7 i;ir)8 1359 13 GO 13b I 715 832 833 834 834 8.35 8.3.; 837 838 83U m > Tsssamm 434 The Code of Civil Procedure. No provisional release by bail 840 Time prohibited for effectinjj 841 Court raay order to be effected at any time 842 Alimentary allowance 843,844 Redress against 845 Liberation, how obtained 846 Discharge may be ordered by judge 847 Failure of creditor to pay alimentary debt liberutiM debtor debtor cHnnot be re-Imprisoned for same debt 848 Abandonments of property consequent upon 849 After appointment of curator to property so aban- doned, record of proceedings thereunder trans- mitted to prothonotary, etc 851 Contestation of statement by reason of secretion 852 Of debtor who has made fraudulent statement of abandonment of property 888 Capias 925 For failure to comply with writ of mandamus 1001 For failure to comply with writ of prohibition 1005 For disregarding writ of habeas corpus 1118 For failure to comply with writ of certiorari 1302 For failure of novary to comfdy with order of Court for inspection of documents 1326 Impiiobation. — (Inscrtpiion en Jaux) Against party's own exhibits Incidental Deposit must precede petition When, may be begun Proceedings in principal suit suspended Declaration as to document impugned by party sup- porting it, form of, and delay for making Effect of failing to make such declaration, or declin- ing to defend document Proceedings if defendant in improbation defend docu- ment Communicatioti of impugned document, how taken. Reasons of improbation to be filed and served Issues, how joined Judgment on, to declare to whom document shall be delivered Direct actions of, provisions to apply t) Testimony of notaries and witnesses receivable Of document before Commissioners' Court. Incidkntal Dkma.nd.— (See also Cross Demand In S. C How made Issue joined and contestation ns upon principal de- mand 225 226 227 228 228 229 229 230 231 232 233 234 235 318 1269 217 215 216 219 Index to the Code. 435 1237 215 In appeal Omission in original demand may be remedied hy Incompatible. — Allegations in plea, dilatory exception 177, § 8 Causes of action cannot be joined 87 Incorporated Bodies, — (See Corporations.) Is Forma Pauperis.— (See Pauperis.) Proceedings 89-93 Inferior Jurisdictions 1253 et seq. Indivisible Right. — In cases of a dilatory exception where parties not joined 177, § 8 Informalitiks. — In writ or declaration, how pleaded (See Ameyidmenf). 174 Information. — By attorney-general against corporations 978 et xeg. For annulling letters patent 1007-1010 Injunction. — In what cases judge of Superior Court may grant interlocutory 957 When cannot be granted 958 Additional, after interlocutory 959 Application is made by petition with affidavit 960 May be granted without notice where urgent 961 Otherwise notice must be given 961 Judge may allow either party to answer allegations of opposite party .. 962 Security must precede issuing of interim or inter- locutory 963 But may be dispensed with in case of additional injunction 963 Judge may at any time order security to be increased or reduced 963 Tenor of order granting 964 Served on opposite party 965 Service, when granted at time of issuing writ of summons 965 When granted without notice 966 Motion to vacate in such case, and its contestation... 9G6 Suspension of 967 Final judgment 968 Service of • 968 Final judgment confirming, remains in force notwith- standing appeal, etc 969 Interlocutory, remains in force, when 969 m\ The Code of Civil Proccdmr. Who may provisionally suspend What judge may order where, contravened Punishment Cor infringing, or refusal to obey Rule for imposing penalty Injuiies Verb vlks.— (See DifatwUion.) iNSCrUPTION.— For proof and hearing In cases not to be tried by a jury Roll for, to be kept Copy of pleadings for use of judge to be hied in court Judge may require certain deposit before witnesses are heard Notice of six days to be given Service of, in default cases, not necesssary Notice of, '\x\ ex parte ctiiQ^ Of contestation of report of distribution For proof and hearing in non-app. cases in Circuit Court Notice of For proof iind bearing in summary matters 1 1 For hearing in ce?vtorart Jn Appeal In Keview ixscRii'TioN EX FAUX.— USee Iinprtbation) 2 Fss'JiupTiON IN' Law.— (See Isme of Law) In summary matters, delay for hearing Delay in cases Don-api)2a)able Insolvkncy of Debtoi!. — Hight of estate to moneys levied under execution Insolvent Tbader. — Arrest of 0G9 !»70 971 972 20;!-29G 29.3 294 295 295 296 b?,:\ r^M 815 1140 1141 157. 1158 i:$04 1213 1198 2.") i / seq- 19 -194 1157 1157 072. G73 Inspection of Documknts.— (See fJiacoceij) Petition to be served When judgment orders such copy to be deposited... Notaries are bound to allow, to certain parties Need not allow, to others without judge's orders If notary refuses, judge's orde."'\nay be obtained Judge's order to Hx time for communication or fur- nishing copy Service of order on notary Copy thus given must mention order, and entry to to be made on copy of order. Liability of notary failing to comply with order,. Application to obtain deposit of authentic copy, etc .1327, 895 286 1329 1330 1320 1321 1322 1323 1324 1.^25 1326 1328 Imlcx to the Code. ■i:;7 895 286 329 330 1320 321 322 Inspectohs. — To an insolvent estate, appointment of S00,8»>7 Authorization by, to the curator to sell 878, Hl'J Authorization by, V> cunilor to contest statement J»85 iNSUItANCB COMI'ANV.— Where summoned 05 Interuictkd Pkrsoxs. — Sale of immoveables belongiiiif to (See Immorr- ables). 1341 el ^■cq. Sale of shares belonging to (See Shares) l.'Ml et, sf!t/. iNTEliEST. — Collocation of ^J04 On costs ,")5t} Required for niaiutcnance ot action 77 ISTERLOCCTOKY JUDOMENT J.— Appeal from h] How appealed from 1211,1212 Heard by privilege IJ2"> Intkrpkbtatiox . — Of Articles of Code, in case of differenco between Knglish and French text Of rules concerninnr procedure.. Of words, terms and expression?.... Of pleadings 2 4 5 105 Interpbetkr. — Judge may appoint. Interrogatoriks. — (See JJiscori rj/ and Impection of J)ocumeiilf<) 2^() d'/ Upon articulalt'd Jach-. — When parties may be examined on How parties are summoned to answer Summons to answer, must be served upon party him- self. If absent, attorney may be served When party is absent Answer.", how given Answers if a corporation Answers, foreign corporation Effect of default to appear or to answer How they must be drawn up Answers taken down in writing and signed by party. Effect of refusal to answer, facts held to be admitted. Answers must be direct, categorical and precise Where dispute arises during examination Indirect answer maybe rejected 21 359 300 30 1 ;'.G1 302 303 363 304 365 366 306 307 367 308 438 The Code of Civil Procedure. li.i m Expense of, furms part of costs Expenses of party summoned to answer Examiner ot evidence may summon parlies to answer Intbbventions.— Who may intervene Is made by declaration Cannot stay proceedings, unless , Effect, VI hen allo^ved {Service and filing Proceedings subject to same rules as action Delays for pleading in By creditors of debtor in distribution of moneys levied In appeal Inventory. — Making of. — Formalities applicable in all cases... Of property of a deceased person, or a community, dis- solved by death Notice to be present at, or represented at Executing notary, by whom chosen Must be in authentic form Form of Difficulties arising between parties must be mentioned Parties may oblige notary to make such entry Latitude given to judge in deciding such difficul- ties By consent of parties, sale may be proceeded with at once, no valuation then necessary Custody of effects Closing • Sale of inventoried effects (See Sale) 1396- Benejit oj. — How applied for Public notice to be given by beneficiary heir Formalities to be observed by heir under, in sale of moveables , Formalities to be observed in sale of immoveables, etc Conditions of granting Consent of creditor nece89arj"*to sell moveables If beneficiary heir has claims against succession, cur- ator must be appointed ISSCB, JoiNDBR of Issues, how completed Upon incidental or cross demand In action of improbation 3G9 378 220 221 222 223 223 224 224 827 1237 1387 1388 13S9 1390 1391 1392 1393 1394 1395 1396 1397 1398 ■1404 1405 1406 1408 1409 1407 1409 1410 214 214 219 233 Index to the Cot/f. VM) IssuK OP Fact.— Cannot be inscrined before judgment on the inscrip- tion in law 105 IsiVEOvLwr.— (Demurrer). — (See Inscription in law ) When issue of law may be raised 191 How raised 192 Issue, how joined 193 Hearing upon inscription 194 In Circuit Court in non-app. cases raised by de- murrer 1144 Joinder of Actions 291, 292 JoiNDRU OF Caused of Action 87 Joinder of Issue 214 Joinder of Parties. — Xon-joinder of party in suit may be amended 521 Procedure where new defendant joined 525 J(»int Stock Company. — (See Compmy— Joint Stock.) Jours non-juridiques. — (See Holidaya.) Judge. — Sittings of, must be public, exceptions 16 Conduct tf persons present at sittings of 17 Maintaining order 18, ll» May of their own accord suppress writings in cases before them 20 May appoint interpreter 21 May require an onth when necessary 22 May administer oath 23 In chambers, jurisdiction of 70 Recusation q/.— (See Recusation, Disqualification.)... 237 Judgment. — Foreign, pleading to action on 210, 213 llendered in any other province of Canada, pleading to action on 211,213 Coi fession of (See Confession of Judgment) 527 By default aid ex parte 532-535 By judge or prothonotary 532 In term or vacation *. 632 Service of inscription not necessary in default cases.. 533 Notice of inscription in ex parte cases 534 Where some defendants appear and others default... 535 General rules as to 536-548 May be rendered on any juridical day in cases taken under advisement 536 Must be rendered in open Court, exceptions.. 537 no The Code of riiil I'tocediin: vW Wh<'re j'ldge is unable to rcniler, in poraon Cannot Ije atayed in suit nndoi" advLseinonl by doiUli of parties or attorneys .'. May \)C rendered by promoted judjje What it niiist contain, in contostod cases For (Jamag s nuist contain li(piidation tberf^)t'... Orderinc restiiiiiion of rents, issues and proliis, niMst order liquidation thereof, how efl'ected Must be entered in Court register without delay Draft to be followed in case of dilference between it and register Judge may correct clerical errors in. at any lime.... Service of, ^hen necessary .... ' Renunciation of, how eirected, and effect Voliintnri/ h'jecution of. ^>i'>0 e( Judgment ordering an account must fix delay for rendering " What it must contain Affdiii sf (j(t rii is/i' e. — Delay for e.\ecMiting EfRct of After verdict Remedies against judgment after jury trial (See .hir/i Trial.) .492 e( Dili'crent from that rendered by trial jndsje Upon case submitted for decision of questions u( law, facts admitted In summary matter Upon writ of certiorari JuOE.— (See .Jndije.) JuGB DB Pm.x.— (Sec ./(/s^ice of the I'eice.) JvmciM. Skqikstilvtiov.— (S*e Seqieatr Uion.) 973?^ sci* Jurisdiction-. — Courts which h ivc civil jurlsdictioi in the province.. 40 Of Court of Q. B., of S. C , of C. Ct., of J. P., is general f> Of Commissioner's Ct. and Recorder's Court ' nit- i to certain localities ... 41 Of Supreme Ct 41, U" Of Privy Council *■. 41, 6a Of l<]xchequer Court 67 OfQ. li. {Appeal Side) 12, 47 Of Superior Court and Court of Review 48-53 Of Circuit Court 54-58 Of Commissioners' Court 59, 60 Of District Magistrate's Court 61,62 Of Justices of the Peace, Recorder's Court and other interior jurisdictions 63-66 .*.3!) 510 .')4i .' 12 5i3 514 545 546 517 518 S'Jfj. am 577 689 6;)2 4l.ll 508 511 1160 1305 '^S Index to the Code. 441 >\)[) Or Judge in chambers Superioi Court nlone ha?, in matters o( capiat. In suits for separation from bed and board In suits for oppositions to marriajpce Of Circuit Unurt.— (See Circuit Oourf.) In lessor and lessee cases, how determined In matters of family council Jurors. — List of, by whom and how made List to be revised from time to time Grounds of exemption same as in criminal matters... In suits of a mercantile nature, how selected Special list of, how and when made Panel of, how struck Motion for f^/itre/aciflrx How, by whom, and when, summoned 443, Must appear ai time and place of trial undar penalty. Challenge to arnty of. — When, how, and upon what grounds made To be deciiled by presiding judge Effect of, if valid Order of calling, in mercantile cases Challenge for cause. — When made Challenge to the polls. — Grounds of Court may require challenge to be reduced to writing. Challenge, how decided Juror himself may be examined as to matter of challenge Challenge founded on a judicial condemnation " Tales," panel may be completed by, in certain cases To whai jurors are sworn If parties do not appear, jurors are discharged Verdict. — Jurors may retire to deliberate When may be allowed to separate Liability of, failing to attend again Wheu allowed to separate, must be admonished by the judge May re-examine witnesses, and ask opinion of judge. . Afcreement of nine sufficient to return verdict If nine cannot agr«^e, may be discharged Verdict of, how received .Are not bound to render verdict until they have been paid allowance Allowance, how recovered Death or illness of Affidavits of, as to motives of verdict, cannot be re- ceived. 23 70 891 I0f)9 1105 1152 133G 430 431 432 435, 453 437 438-411 443 444, 44.-) 447 448, 449 450 4M 453 454 455 456 457 458 459 4f)0 461 4G4 476 477 477 478 479 480 481 482 485 486 490 497 < (•: ^i!', Illl 442 The Code of Civil Procedure. Nor to establish that verdict rendered is not that which jurors intended to give 497 Certain acts of, are grounds for nevr trial 493 Junv Trial.— (See also Jurors.) In what cases allowed 421 At option of either party, when amount claimed ex- ceeds $400. 422 How^ option is made 423 Issues respecting right to trial to be decided before fixing 424 Each party must furnish statement of facts 425 Assignment of facts may be dispensed with by con- sent 426 Judge may amend or strike out any of facts assigned 427 Wfiere trial must be had 428 Judge may order trial in another district when action against public officer 429 May be lixed for day, either in term or for vacation... 433 Record to be transmitted when trial takes place out of district 433 Special List "nd Striking of the panel. — Court upon motion may fix day for striking panel 433 Motion to fix day for trial must be accompanied with deposit 434 Selection of jurors in mercantile cases 435 Languageof jurors, when jurors must be de mediatate lingvoe 43G Special list of 50 jurors, how made 437 Parties must attend at time fixed for striking the panel 438 How striking is effected 439, 440, 441 Proceedings, if party who has demanded trial by jury fails to proceed .*. 442 Summoning ofJvrors. — How effected, writ of venire fac!a» 443, 444, 445 Formation oj Jury and Challenge. — Return of writ of ^»cn^>c /acta* 446 Attendance of jurors, how enforced 447 Challenge to tl>8 array 448 Challenge must be in writing, and state causes 449 Challenge to be decided by presiding judge 450 Eflfect, it pronounced valid 451 Crlling and swearing of jury..?. 452 How jurors are called in mercantile cases 453 Who may challenge for cause, and when ,.. 454 Grounds of challenge to the polls 455 Court may require cballenge to be reduced to writ- in|f 456 Challenge, bow tried 457 Juror may be examined on oath as to matter of chal- lenge 458 ±.kmm..: 21 Ittdejo to the Code. Challenge founded upon a judicial condemnation "Tales," what and when resorted to To what jurors are sworn Proceedings before the Jur;/. — Pleadings AuAJactum to be given to proihonotary.... Effect ot either or both of the parties failing to ap- pear on day of trial Withdrawal of plaintiff, consequence non-suit No paper can be read to jury without lease Notes kept by proihonotary Certified copy of notes to be preserved, bill of excep- tions abolished Evidence given orally, saving Judge may dismss action when plains ff has given no evidence on which jury could find verdict... Jury trial governed by ordinary rules as to conduct of cases inscribed lor proof and hearing Order to be followed in conduct of cases.... Judge may sum up ( vidence Objection to charge of judge I'rovince ofJudije andJunj. — Judge decides as to whether tliere is evidence, and whether same is legal . Jury finds facts.judge gives law Verdict. — (See Verdict) Remedies ayatnsl Judgments and procfedings in re- Appeal from final judgment Procedure npon inscription in Review or Appeal Motion for new trial .'. Motion for judgment in accordance with verdfct Judgment of ('. R. in reserved cases Discretion of Court as to applying remedy in reserved cnses... Aflddavit of juror as to reasons for verdict cannot be received New 7riaL—(See '' Xew Trials.") Where Different Judgment given from that rendered by Trial Judye, etc. M3 451) 400 4(Jl 4G2 404 405 4flG 4G7 468 409 470 471 472 47;{ 474 ... 475 476-490 492-508 492 494 494 494 495 496 497 498 508 Justices of thb Peace. — Jurisdiction of 63, 60 Appellate jurisdiction of the Circuit Courtover judg- ments of 58 Certiorari against 1292 et seq. Lak^ds. — How described in the demand 124 Venue of actious relating to 100, 101, 10.3 Partition of, held in common ... 1037 ;' 4t4 The Code of Civil Procedure. 594 646 1089 1150 1152 1152 1153 Confirmation of title to. (See Confirmatir-. of Title.) 1067 Appeal lies in all cases relating to titles tu 44, 68 Law. — Questions of, may be submitted to the Court in cer- tain cases' 509-512 Lawyers. — (See Advocates and Attbrneys.) Lease — (See Lessor and Lessee.') When no lease, or lease has expired, provisional exe- cution will lie in action of ejectment Privilege of lessor, opposition Lessor anl' Lessee.— Certain proceedings between Actions are summary Cl«s? of action and jurisdiction, how determined What lessor may demand Delay in actions between Lettrb db Change — (See Bills and Notes.) Lettres-Patentes.— (See Letters Patent.) 1007 et seq. Lkttbrs Patent. — Annulment of, by the Superior Court, when Demand lor annulment made by information Writ in same form as in ordinary summons, and pro- ceedings subject to same rules and delays as in ordmary matters 1009 Appeal 1010 Lktti-jrs of Verification. — Who may apply for, and when 1411 Tenor of petition ft>r , 1412 Alleuations must be verified by affidavit 1413 Service of petition 1414 What must accompany petition 1415 Contestation of 1416-1421 LbvIie des ScELLis— (See Seals.) 1375 et seq, LiBELLE.— (See Difamation.) Licitation. — " Compuhorif Partition and. — Co-heirs and co-proprietors may bring action to ob- tain , 1037 Who must be parties to such suit 103S Special t itor must oe named to minors i039 Court before judgment orders expertise to ascertain whether immoveable can be divided 1040 One expert sufficient it all parties of full age io4i 1007 1008 Index to the Code. 445 P oceedinffs on report of expert 1042 Allotment of shares 1043 Proceedings before forming lots, if suit be for an ac- count and a partition 1044 Court may order public auction, if immoveables can- not be advantageously divided 104.> Advertisements and notices necessary when Court has ordered licitation 1047 Notice, how published > . 1048 In default of plaintiff*, other parties may advertise.... 1019 Delay for receiving oppositions 1050 Sale to be delayed if oppositions cannot be decided before day fixed, Court may fix another day... 1051 Bids an'! final adjudication 1052 Conditions of sale, list of charges must hiive been filed, deed of sale 1053 Rffoct of, adjudication .. 1"54 Liability of purchaser failing to pay price according to conditions of sale 1055 Delay for filinsr oppositions for payment 1056 Distribution of purchase money, certificate of regis- tered hypothecs 1057 Licitation of immoveable situated in two districts 1058 Voluntari/, of immoveable held undividedly between tutor and pupil 13Jr> LiBU DE l'In'troduction db l' Action. — (See Jurisdiction) Liquidation.-— Judgment of daraajres must contain 542 Judgment condemning to restitution of rents, etc., must order liquidation thereof 5 3 Lis Pkndkns. — Exceptio:> of 173 LisTK DE3 PifecBS.— (See Exhibits.) Litispkndrnoe. — (See Lia pendens.) LoCATBUR ET LoCATAiRES. — (See LessoT and Lessee.) Maqoalen Islands. — Exceptional provisions concerning 39 Appeal from judgments rendered in 45 .Magistrate's Court. — (See District Afuf/ist rates' Court.) 1284 et seq. Maitrb de Vaisseau. — (See Cuptainn of Shipi.) MaItres bt Serviteurs.— (See Masters and Servants.) Mandamus. — When it lies 0!)2 How applied for 'Mi !i 416 The Code of Civil Procedure, ! 'i ■I ■'. ill Writ same a? ordinary writ of summons 994 Proceedings subject to same rules and delays as in summary matters 995 Issue of peremptory writ 996 Service of such writ 997 In matters relating to election to a vacant office 993 Number of voters to be present at sucli election 999 Return of peremptory writ 1000 Penalty for not comDlying with 1001 Penalty inflicted by rule served upon contravening party 1002 No appeal from, in matters relating to municipal corporations or offices 43,1006 But review can be had in such cases 52 In case* where appeal lies, the delay to appeal is 30 days 1006 Mauriage, — Oppositions to (See Opposi'ions) UOoetseg. Mauuiei) Womkx. — How described in writ of summons 122 Service of 133 (See Separation helxoeen Consorts). lOf^O c< «ej. Makiser. — Service of summons on 132 Matieres Sommaires. — (See Simvnnry Matters.) 1150 el seq. Mediators. — (See Arbiirators ) Mediktate Lixglvk.— (See Jwry Trial.) 436, 440 Masters and Servants. — Jurisdiction of justice of the peace in disputes between Jurisdiction ot the ({ecorder Disputes between, are summary Mkmbkr of Parliament.— Cannot be served on the floor of the House Mei'BIS i>e Cour —(See Contempt of Court.) Merits. — ' Demand of plea to, before answering preliminary pUas 167 Costj of contestation in such case lyg Dilatory exception afterwards maintained relieves defendant of foreclosure igj) Contestation upon the \9\etseq. Inscription in law 191 Issue of law, when it can be raised 191 Issue of law, how raised 192 63 64 1150 147 m^m^ w M I Jmhx to the Code. 447 I^siie, how joined 193 Hearing upon the inscription 194 Issue of fact cannot be inscribed before judgment on inscription in law 195 Defence. — What defendant may plead by defence lOG Filing of defence 197 Answer and reply. — Delay to 198 Additional pleadings 198 Supplementary pleas 199 Grounds of law urged by way of inscription 200 Grounds in the nature of preliminar}' exceptions urged by motion 200 Mesuhes Phovisionnelles. (See Damages.) %Q3etseq. Minor. — Over fourteen years may sue for wages in Commis- sioners' Court 1263 Sale of property belonging to 1311 ctseq. (See Immoveables, Shares.) Minutes. — How replaced where lost .... 1327 ei seq. (See Inspection of Documents^ Prods- verbal.) MisE EN Cause. — (See Joinder oj Parlies.) Service of 525 Mixed Action. — Venue oi 100,103 Money. — Paid into court cannot be withdrawn without, etc.... 588 Seizure of current 631 Payment of, levied in execution on moveables 670 Collocation and distribution of, levied on immove- ables 794 Payment of, levied on immoveables , 828 Payment of, without collocation 793 Motion. — Preliminary exceptions must be urged by way of 104 Truth of bailiff's, etc , return must be contested by motion 236 For judgment in accordance with the verdict , 494 To dismiss opposition 651 Of exception to the appeal 1220 MONTUEAL. — Appeals from judgments rendered at 47 Review of judgments rendered at 53 n f I fid fi ill I 448 Tftc Code of Civil Procedure. MOVKABLES. — Seizure of. (St? Execution.) Sale of. (See Excsution, Sale, Inventory, etc.) MUTBS. — As witnesses 319 Municipal Corporations. — No appeal lies in certain matters concerning 43,1006 Review may be bad 52 (See also Taxes.) Nkw Trials. — May be granted in what cases 498,499 Misdirection and improper admissions as grounds of.. 500 There must be a substantial prejudice to give rise to. 500 When verdict considered to be against weight of evidence 501 Accorded when amount is grossly excessive or in- sufficient 502 Unless plaintiff agrees to its reduction 503 Or unless defendant agrees to its increase 504 Discovery of new evidence, when ground for 505 Certain causes, how ascertained 506 Must be granted when judgment on verdict has been reversed and no further order has been given.. 507 Non-Appbabance. — (See Default.) NoN-CoNTENTiocs PROCEEDINGS 1308 et seq. Non-Joinder. — Of party not a cause of nullity when amended 521 Non-Jdridical Days. — What are 7 When things are to be done on next juridical day 8 Court cannot sit on 14 Non-Suit.— Judgment of, on failure to put in security 182 Against plaintiff in jury trial *. 463 et seq Notaries. — Certain powers of. 83 Testimony of, in im probation cases 318 Must give communication, etc., of their official records to interested parlies on payment of fees. {^BQ Inspection of Documents) 1320 Choice of, in the making of the inventory 1390 Index to the Code. 449 Notes.— Majp be seized 641 How sold 6G6 In bands of garnishee 695 NOTICB. — Of action against public officer 88 To Attorney-General (constitutionality of statute) Ill Of filinsr of exhibiis 155 Of inscription in law 194 Of decease, etc., of one of the parties 268 Of inscription for proof and bearing 2U6 Of inscription in default and ex parte cases 418 Of amendment made or to be obtained 524 Of plaintiff who refuses to accept confession of Judg- ment 530 Of inscription for judgment in ex parte cases 534 By opposant to sale of moveables, that opposition must be contested fi50 To suspend seizure of moveables of insolvent 871 In matters of petition of right, to Attorney-General. . 1017 Of inscription in review 1198 Of inscription in appeal and giving security 1213 Of inscription for proof aud hearing in the Circuit Court 1141 Of inscription in law in summary matters 1157 Of inscription for proof and hearing in summary matters 1159 Of petition for certiorari 1295 Novation. — Plea,formof 203 NouvKAB Proce-?.— (See iVew Trials.) A^dSetseq. Nulla Bona. — Examination of the debtor where return of. 59^ SheriflF's return of, where no immoveables to seize 768 Opposition to judgment must be made within ten days from return of 1166 Nullity. — Not entailed by non-joinder of party, if error amended. 521 Prejudicial irregularities entail nullity only when not remedied 175 Waiver of irregularities '76 When nullity of seizure may be demanded 645 Oath. — Powers of court or judge as to 22 Right of judge, proihonotary or commissioner to administer 23 450 The Code of Civil Procedure. Form of, to be changed accordiDg to religious creed of witness 322 By quaker 322 Refusal to take, by witness 323 What witness must believe in order to make 324 Put by the court 371, 372 j\dministered by examiner of proof to witness 377 To experts, how administered 401 Experts may administer, to witnesses 404 Object of Dbmand. — How described in writ or declaration 124 Objections. — To incriminating questions 331 Reserved for hearing at the trial 355 To judge's charge to the jury 473 Office of the Court, — Meaning of the term 5, § 7 Election of domicile at 84, 86 Service of absentee at 85 Inventory of seizure when left at 633, 707 Copy of declaration left at, in Capias , 009 Offices Monicipaux.— No appeal in certain matters concerning 43, 1006 Review 52 Officibr Poolw.— (See Public Officer.) 88,429 Offuks RiEi-LBS ET CONSIGNATION.— (See Tender.)...^%'iet seq. Ontario. — Attendance of witnesses residing in, compulsion 299,300 - • - • ■ 3(,i 558 Service of subpcena in. Costs of such service Oppositions. — To the Seizure of Moveables. — Who may make Debtor may make, on what grountls Privilege of lessor Must be accompunied by affidavit Are served upon sheriff or bailiff by leaving original with him Effect of. Proceedings by opposant after return Judge may dismiss upon motion, if made with intent to unjustly retard sale Default may be obtained against parties for non-con- testation 644 645 646 647 648 649 650 651 652 Jndey to the Cwlc. 4iil Contestation subject to same rules and delays as smmary matters Sale under venditioni exponas cannot be stopped by, unless, etc To the Seizure and Sale oj Immoveables. — Sales, how suspended Oppositions to annid (_ajln d'annuler) Ofipositions to withdraw («r/?w (/c din'raire) Or>positions to secure charges (o///j de charge) Who may make And when Opposition to charges upon immoveables under seizure To seizure and sale, must be accompanied with affi- davit Must be served on sheriff' Delay for serving , Filed after period for delay Effect of service of Sheriff is bound to return with all papers Sheriff bound tu continue publications, etc., in spite of Proceedings upon, in other respects same as opposi- tion to sale, etc., of moveabled Liability of party who makes, unsuccessfully When decided before day fixed for sale When decided after Sale under venditioni exponas cannot be stopped by, unless For PayvunL — Register of When necessary to tile No costs allowed in certain cases With whom and in what delay should be filed To Ucitations ! 1050, 1051, To confinixition of title 1074, To Marriage. — Where brought Must be accompanied by notice Upon whom served '. Proceedings same as between lessors and lessees If not pres>tited on day fixed, judgment of non-suit may be obtained Are declared abandoned if opposant fail to proceed... Court n)ay summon parents or friends of intending consorts Appeal or review Costs where dismissed In Commissioners' Court 1282, C53 G54 721 722 72:5 724 724 725 72G 727 72R 728 728 72 f) 720 730 7:!1 7::2 73:: 7:!3 734 780 700 701 702 lOot] 1075 1105 llOfi 1107 1108 1109 1110 nil 1112 lii:^. 1283 402 The Code of Civil Procedure. Option. — For trial bv jury 422, 423 Of plaintiff between incumpatible claims 177, § 6 O^DBR— Maintenance of, during sittings of Court 17 etaeq. Order of Thial and Adjournment 301-311 Ororb et Distribution db Dbnibrs PrI;lkvI:s. — Sur vente de meubles (See Execution.) 670 e< aey. Sur vente d'immeubles (See Execution) 793 et seq. Original.— Of an authentic act, loss, bow supplied ....!327 et seq. Paiembnt.— (See Pai/men() Panbl.— (See./wry Trial.) 433 et seq. Papers. — All, filed, must be served on opposite party, except.. 115 Parliamknt, — Members cannot be served on the floor of the House.. 147 Parsonages. — Assessments for building and repairing, where sued for 54 Partage et Licitation Forceb.— (See Licitation.) ..1037 et seq. Partition. — Compulsory, and licitation. (See Licitation.) 1037 et seq. Partnkrship. — Commercial, how summoned 122 Service upon, how effected 139 PatbrnitG. — Action en declaration de. Commissioners' Court has not jurisdiction in 60 Pauperis, in forma. — •» Proceedings inJormO, 89-93 When party may obtain leave to sue or plead in 89 Certain costs, however, must be paid by party 89 Permission is granted by petition go When leave may be revoked by judge........ 9i Other party cannot be compelled to pay costs upon inciaent in suit before final judgment 92 Liability of other party as to costs 93 Execution for same 93 .'r Index to the Code. 453 Payment or Trndru into Court.— (See Tender.).... ..583 et seq. Paymbnt. — Plea, form of 203 Of moneys levied upon moveables 670 et seq. Payment without collocation 793 Demand of, not necessary under subsequent execution in same suit 609 Of moneys levied (See fCxeculion) 828 et seq. 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 Of funds in action of ratification of title 108G PiTlTION. — In revision of judgment by default 1175, 1176 In revocation of judgment (See .ludgmenl). 1177 etseq. For separation from bed and board, by wife to be allowed to sue 1101 For sale of immoveables of which the owners are unknown 1025 et seq. For mandamus 993 For release from arrest under capias 919 et seq. Pknalty. — For infraction of tariff by officers of justice 37 Appeal to the Circuit Court in matters of penalties under the Municipal Code 58 Cannot proceed in formfi pauperis to recover 80 Commissioners' Court has not jurisdiction in matters of 60 Jurisdiction of District Magistrates' Court 61 For disobeying injunction 971, 972 For disobeying mandamus. And prohibition , Pkremption of Suits. — (Peremption d instance.') When, takes place (two years) When not. Against whom How obtained How covered Eff^-ctof Powers of Court as to costs 1001 1005 279 280 281 282 283 284 285 Pension Alimentaibb.— (See Alimentary Allowance.) Peremptory Writ.— Of mandamus 996-1001 PERSONAL Actions. — Venue......... 94 et seq., 103 •154 The Code of Civil Procedure. I'ktition ok RianT.— Writ of possession where suppliant is adjudgej, immoveables Mode of recovering moneys adjudged to suppliant.... When may be addressed to Her Majesty Tenor of petition Petition must be supported by alfiJavit Petition must be left with Provincial Secretary Fee Procedure where lieutenant-governor's fiat obtftined. Written proofs must be filed with petition in protho- notary's office Deposit Copy of patition and fiat left at office of Attorney- General Procedure where contestation filed Where not filed Where petition relates to recovery of property granted away or disposed of by Crown Inscription in appeal Costs Attachment in revendication of property, government is adjudged to surrender moveable properly 1023 1024 1011 li)12 101.3 lOU 1014 1015 1016 1016 1017 1018 1018 1019 1020 1021 1022 PaTiTORif Claim. — Cannot be joined with possessory 1066 PifeCES.— (See Exhibits.) 155 fMej., 201 Plaintiff.— How described in writ of summons 122 Proceedings when absent (See Absent). Preference of, on proceeds of sale by execution 672 Purchasing at sale under execution may retain purchase money .*. Pleas and Plkadinq.— (See also Exceptions^ etc) Pleading cannot be in the name of another General rules Facts and conclusions must be concisely stated Dates, numbers and quantities may be denoted by figures. Form of reference to an act T. Allegations must be paragraphed, etc Admissions and denials Repetition of allegations in subsequent pleading .... Facts which must be expressly pleaded Facts irhicb are be)d to be admitted Affidavits, form and contents Copies must be sensed Service out of the district 759 81 105-116 105 106 107 108 109 109 110 HI U'J 115 116 Index to the CoiU: 455 Preliminary. -'^QQ Kxceptiovn 101 el s^fi To the merits.— Raising issue of law How issue of law raised ilow issue joined Hearing upon the inscription Issue of fact cannot be inscribed before judgment on the inscription in law What defendant may plead by defence Delay for tiling defence Dela^ for answering and replying Additional pleadings Supplementary pleas (i'uis darrein Continuance) Grounds of law, how ur^rcd Grounds in the nature of preliminary exceptions, how urged Exhibits, tiling Party must answer his opponents' allegations with precision General denial can only be pleaded alone Pleas of payment, novation, release, compensiition, form of Amended pleading, delay to answer Foreclosure from pleading Denial of signature, atfidavit required Pleading failure to present bill ur note at place fixed, affidavit required Denial of certain documents, security lor costs required And affidavit To action on foreign judgment To action on judgment in other provinces 211, 212, 213 Delays for, in intenvention 224 Amendments to (See Amendments) 514-520 Delays for pleading In Circuit Court Ii:)9 Pledor. — Pledgee may oppose execution 191 192 192 I'.tS 195 196 197 198 198 l;t9 200 20(t 201 •402 202 203 204 205, 200, 207 208 208 209 209 210 C46 Possession. — When may be obtained 610 Execution of writ 611 Of goods seized before judgment 938 Of goods revendicated 949, 951 How sequestrator put in possession 976 Of property which the government has been con- demned to return 102:^, 1023 Provisional.'— {U envoi en possession.) How and where applied for... 1422 Act of notoriety to accompany petition, how made... 1423 Cftn only be granted after certain public notices 1424 Proceedings on claims and petition same as upon ordinary suits 1425 0' 456 The Code of Cwil Procedure. Possessory Actions,— Provisional execution may be had in 594 Who may bring, and against whom 1064 Limitation of lObfi Petitory claim cannot be joined with, or be b. ought until satisfaction of judgment in, exceptions... 10G6 PouRSDiTES,— (See Actions.) POORSUITKS HvPOTIlfeCAIRES CONTRB DES ImMKDBLES DONT LK8 PkoPRIETAIRES SONT 1NC0NNU8 OV INCBUTAINS. — (See Hypothecary Hecourse.) IQ25 etteq. Power op Attorney. — Required from absent plaintiff .... 177 Special in incidental improbatioa 22G In case of recusation 243 Of disavowal 253 Of confiession of judgment 527 Practick. — (See Rules oj Practice.) 1, 73, 74, 75 Practitioners. — {Practiciens.) Reference to (See Accountants.) Precedence. — Of certain cases in review 1201 Of appeals from interlocutory judgments 1225 Of oppositions to marriage, in review or in appeal.... IU2 Preliminary ExcEPnoNS {See Exceptions)..., 164-16(j Priest. — Cannot be compelled to declare as a witness what has been reve««led to him confldentially in his professional character , 332 Prfscription. — Plea, form of 203 Of possessory action 1065 Preuvb.— (See Proof.) Prisonbrs. — Service on 13t Brought before the court to give evidence 30;J Privileged Claims. — To execution money ,,..,. 672 (See h'xecation^ Distribution.) Privileged Cases.— (See Precedence.) Index to the Code. 467 Pnivy Council.— Jurisdiction 41, 68 Appeal from Uouri of Review 69 Appeals to 1249-riJ2 Unless security be given, execution of judgment of court appealed from cannot be stayed by appeal to 1219 If appellant allows execution, security for costs is srfficient 1250 Certificate necersary to stay execution after six months 1251 Clerk ol court which rendered judgment to enregister decree of 1252 Probate of Wills 1430 Proceduhe. — Where Code silent 3 Rules of, are interpreted with reference to each otiier (SeeSuinmari/ JUaUer.t) 4 PROciiDUKEs NON-CoNTENTiKLSES.— (See Noll Contentious Proc'.'edings.) 1308 et seq. Pttocis PAR Jury. -(See J«ry Tria'.) 421 et seq Procks-Verbal. — Of service 152 What It should contain 153 Contestation of 226 Amendments to 519 Ot seizure of moveables, what it must contain, servic" 629 et seq. 661 706 769 976 1365 1385 1403 Of sale of mnveables. , .. , Of seiiiure of immoveables Of sale of imuioveabies, return into court Of putting sei^uesirator in possession Ofafhxing seals 01 t!ie removal of seals Of sale of imniove'^bles belonging to a succession Pkocubvtion — (See Power oj Attorney .) Procurkor. — vSee Ado >cate and Attorney.) PRocuREUR-(iii\i;tAL — (See Attorney-General .) Productio.v des FiiCKS.— (See Exhibits.) Prohibition. — Writof, when it lies .Application lor, sameas mandamis Ferem(»t<»ry writ Penally f »r disregarding... 24 1003 1003 1004 1005 458 Thr Code of Civil Procedure, Promissof!y Not?. — (See Note.) Proof. — When both preliminary picas and to the merits have been put in, proof takes olace on all the issues at once 168 May be declared closed on rkilure of party to proceed on day fixed :!04 Order of making 310 Any party to a case may be examined as a witness.. 31G His evidence as commencement of proof in writing.... 31'! He may give testimony on his own behalf .U' But his silence not to be construed against him., 317 Oral admissions 354 In another district .357.358 Oath put liy the Court 371,372 Before Kjnimmer!^. — Sufficient cause 373 Hule appointing examiner must specify place for taking and delay tor concluding 374 How examiner must be sworn 375 Notice to be given by him 37G How witnesses are summoned before examiner 377 Examiner may summon parties to answer interroga- tories on articulated facts 378 Examiner II ust make a return of his proceedings 375> Incase* by default and e:c parte 418 How and when made, defendant enli'.led to notice, rights of foreclosed defendant 418 When evidence of witnesses may be taken in default &nd ex parte cases 419 Is filed and remains of record, when 420 Jn non- appealable cases in Circuit Court. — Made orally, etc 1142 What if demurrer has been filed 1144 In another districts 1 145 Proof and Hearing — (See Intcriptioit) Inscription for in Circuit Court in non-appealable cases 1140 Notice of. , 1141 Inscription for, in summary matters 1157, 1158 Notice to opposite party.... 1159 PROPRRTV. — What is liable to seizure.. G13 Abandonnaent of (See Ahandonment) %bZ et seq. Separation of— suits on (See Separation) IQ9C et seq. Of minors, sale of, howeaecled 1341 ef seq^ Protest. — Of note, etc., failrvre to fulfil ''ormalities 208 IiiiU'd- to the Code. 459 PnOTHONOTARY.— May adjourn Court Powers during vacation May adrainister oath In absence of judge Duties in regard to taxing witnesses Of Superior Court, powers of,Jn non-contentious pro- ceedings... PROVISIONAL Execution. — (See Exfcudon,) Provisional Possession-. — (See Poss^asion) 1422 et Provisional IlEMEniEs 803 cf Pliblic Officer. — Notice of suit Venue of suit against Trial by jury in action ofdamagos agiinst, may be ordered in another district ,.. Publications.— (See Adiertisem^ntn.) Puis Darrein Continuanck. — Supplementary defence, etc Purge dks IIypotheques.— (See Ratification oj Title). 13 15 23 .'53 335 310 88 1)7 429 Ql'AKKR. — Oath of . 199 1067 321 QlKBKC. — Review of judgments at 53 Appeal from judgments rendered at 47 Petition of right in dirtrict of 48, 1015 QirEEN'a B?:nch. — (/n Ap/>eal.) Jurisdiction of 4 J-'roceedirif/s in Appeal to ,„, 1200 Where appeal is from Interlocutory judgment 1211 Inscription in appeal. Contents Security, and how given 1214 Transmission of documents and record 121(3 Appearance in appeal When respondent can obtain discharge of appeal Exceptions which respondent may set up Reduction of security When appeal may be joined Filing factum 1223- Hearing. Who can institute appeal. What constitutes a quorum of Judges in appeal. Recusation of Judges. 2, 47 -1210 -1212 1213 -121.^ 1217 1218 1219 1220 1221 1222 1224 1225 1226 1227 1228 460 The Code of Civil Procedure. Competency of Judges 1229 When incompetency appears on face of record 1230 When udgeof Superior Court can sit in appeal and powers of 1231 et seq. Interventions and o:ber incidental proceedings Judgment, how rendered Discharge of order for advisement Adjournment Wh' re judgment may be rendered What judgment must contain Taxation of costs in appeal Execution or judgment < General powers of Court 1237 1241 1242 1243 1244 1245 1246 1247 1248 180 89 :i227 QrKSTIONS. — Witness not bound to answer incriminatory 331 Must not be leading, etc 339 QuKSTiONS OF Law. — Mav be submitted to the Court in certain cases 509-512 Qui Tam Actions.- - Security to «osis in Cannot be '\A'\ mformdpa'.ijjeris QlORUM.— Of jutg<'s in appeal Qio Warranto. — ^S3e Umrpitioa of pudic or cor- porate offices orjranchixcs) 987 et seq. Review in matters of 52 Appeal 1006 Mailway.— Summons of certain, companies Seizure of, minute of Notice ot sale of railway Where railways must be sold How describt'd in sheriffs deed of sale Ratification of Titlk.— {See Confirmation o/ Title)..., Rapport. — (See Return, Reports.) Rkal Action.— Venue of 100, 101, 103 Recrption dk Cautions. — (See Sureties.) 559 et seq. Reclamation.— (See Claims.) Rkconventionnelle (Debianob). — (See Incidental De- mand.) 2\5elseq, Record. — Transmission of, how effected 31 144 706 718 741 760 1067 Index to the Coitt: 4(51 244 245 246 247 Rrcouder's Court.— Jurisdiction of, limited to certain localities 40 Jurisdiction of. G4, 66 Remedy by certiorari 1292 el seq. Rkctific\tion' des RKCiiriTRES. — (See Ifeyisfers) 1311 et seq. Rkcusation. — Proceedings if made before judge makes declaration. If sole judge of district be liable to, action may be brougiit in an adjoining district Judge's declaration conclusive, if party has no written proof ." If recusation maintained If maintained in another district record to remain tlieie 248 Party may renounce his right to 240 Judge may decline to sit 250 Grounds of 237, 238 Judge aware of his liability to, is bound to declare it in writing Parties are bound to make known grounds of, at once , Delay for making, after judge's declaration If no declaration made, may take phice at any lime upon affidavit Ispi'onosed by petition Is proposed, how, when party is absent from pro- vince Of experts 396, 397 Of arbitrators 14.39 239 240 241 242 24;{ 243 Reddition db CoMPTK.^.—'See Account.) 566 et seq. Reelles (Actions).— (See Real Actions.) 100 d seq. Re-examination. — Of witnesses by advocate 341 By the jury 479 Ref'erenck. — To accountants, e.vports, arbitrators, etc 391-417 Recjisters. — 0/ Civil Statu.'f.— Formalities required before using 1311 Requisites of duplicate 1312 Persons bound to keep, may be compelled to do so... 1313 Petition to rectify contents and service 1314 Judge may order persons inieresled to be called in... 1315 Judgment ordering rectitication must be i;iscribed ; subsequent co()ii'3 must contain corrections 1316 rpmoffa sasa 462 The Code of Civil Procedure. •..* OJ liegUtry 0//ices.— Alust be authenticated, when and how Of Sheriffs und Coroners. — Must be kept, tor what y)urposes, when filled dupli- cate to be deposited Authentication of 1317 1318 1319 810 Reuistiiar — Is deemed to be officer of Court for certain purposes. IIegisthak's Ckrtikicate. — In case of execution upon immoveables 770 et seq. In mutters of confirmation of title 1072 et seq. Is pritmljacie evidence, hut may be contested 808 Amendment of 809 Registration.— (Sec Registers.) Reinteoraxde (Action kn). — When it lies 1064 Hemkdiks. — Provisional 893 et seq. Remise. — Plaidoyer de 203 Renonciation.— (See Kenunciation.) Riont.— Attachment for (See Adachmcnt before Judgment).. i)52 et seq. (See Lessor and Les.see, Lease). t^KNTS. — . Constituted for the redemption of seigniorial rights, how dosignaied in demand How such rtnN are seized and sold Not necessarv to insert in minutes of seizure of im- moveable i>ppositi(»u to secure charges not necessary for secur- ing su*-h rents Claims for nrrears of such rents Eftpct of sheiifl's sale in regard to such rents Lite rents, how collocated .^ Collocation of arrears of rents Seizun? ot immovtables without p»wloU8 discussion of moveables in the case of seigniorial nmts... Rbnunciation — Ofjiulgrnent Rbntoi. — (See Reference.) R£|'L1QUK^.— (See Pic ts arn^i Pie idin^9) 124 700 709 725 790 781 803 801 614 548 199 Indr.r to thv Co••• Index to the Code. RuLKH OK Practice. — When abrogatpd by the present Court .. For Court of Q.B ForS. C. and C. (U Must not be incompatible with the provisions of this Code When they come into force Must be registered And notice to tiiat effect posted up by prothonotary.. Saouenay. — Exceptional provisions concerning Sai.sie-abr6t apkks Jl-qembnt. — (See Seizure by O'ur. nishment.) 077 SAisiE-ABBfit AVANT JcGEMKNT. — (See AUachmeut be- fore Ju'iffmenf.) 931 Saisie Coxservatoire. — Quand en peut y avoir recours. Procedure , Saisib Executiox. — (See Execution.) Saisie de Meubles.— (See Execution.) C17 Saisie d'Immeurles — (See Execution.) 099 Saisie Gaoerie. — (See Attachment be/ore Judgment.).. 952 Saisie Revbndication. — (See Attachment be/oie Judg- ment.) 94G Salary ok Wages — Garnishment (See Seizure by Garnishment) Exemption from seizure Minor 14 years old can sue for,before Commiasioners' Court Sale.- (See Execution, Sherif.) Of Moveables under Execution — Houi's for conducting Takes place at time notified New notices if retarded or no bidders Effect of dilatoriness of first seizing creditor Guardian, etc., must produce effects at time fixed for Proceedings to compel guardian to produce effects... Guardian entitled to discharge ; mention of effects not produced Seizing officer cannot bid or purchase Minutes must be made of eacli bid Adjudication and payment 465 I 73 74 75 75 75 39 et seq. et seq. 955 956 et seq. et seq^ et Heq. el seq. 697 599 1263 636 655 655 656 657 658 659 660 661 662 4G(; The Code of Civil Procedure. 1 ''>' G63 6G4 064 065 0G6 068 069 Officer cannot receive more ihan price ot adjudica- tion ' Must not be for more than debt unless debtor con- sents Debtor may regulate order of selling Effect of adjudication . ... Debentures, notes, shares, etc., are sold in tiie same manner as other property of debtor No demand to annul, can be received, ext op- tion Costs of, must be taxed at once Of immoveables under execution (See L'xeculiou). ..GdO et seq. How suspended 7i'l Of property bclonijiny to minors and other disquali- fied persons 1341 et seq. Person charged with sale mast report and return into Court (8ee Immoveables, Shares) 0/ inventoried efTecls. — By consent of parties sale may be proceeded with at once; no valuation then necessary Date of, public notice Takes place where effects situated and for cash, unless, etc By whom effected Presence of persons interested Minutes of Notice of, where co-heirs or co-partitioners are minors 1404 ScKLLEs — (See Seals.) SciHK Facias.— (See /W/ers Patent.) 1007 etseq. Skals. — Provisional execution of judgment for affixing or removing seals 594 Collocation of costs of sealing and inventory 676, 798 Affixinii. — On property of succession 1362 Commissioner may be named, and iiow 1363 By whom may be demanded 1364 Commissioner must draw up minutes, contents there- of ^ 1365 Seals, how affixed 1366 Duty of commissioner if a will should be found while 1367 If doors are fastened or admittance refused 1368 It after entering house commissioner meets with a declaration of opposition. 1369 Judge to decide forthwith on opposition 1370 Result of references to judge to be certified on minutes 1371 If no moveables, fact must be stated in minutes 1372 1301 1396 1399 1400 1401 1402 1403 Imlc.r to the Code. 1^7 Minutes must be (lepositoil in prolhonorans oftico... i:iT3 Second fixing ; when there mny be, how e He etc d i:!74 lieinoval — Applications for, how heard 1375 How executed, if affixing be declared null 137(1 If two ftffixings, when only,— can take place 1377 Delay for, if aflixed before the burial 1378 Who may demand 1379 How apjdied for 1380 If allowed, inventory to be ordered, notice necessary 13H1 Persons not having the free exercise of their rights must be represented at 1382 Viov effected, inventory to be made at time l''>83 Heuirns to be made 1384 What return must contain 1>^85 Papers and effects found not belonging to the suc- cession must be handed over to proper claimant 138(5 Skamkn. — Service of summons on 132 Skcrkt Puokrssionnel. — Temoin 332 Skcrkting Pkopkrty.— fSee Attachment, Cai>iafs.) Skcurity.— (See Sureties.) In appeal to Privy Council 1249 Judgment ordering must fix titne for offering 559 Bond entered into at office of Court 559 Skcurity for Costs.— (See Costs.) In popular and fpti ^am actions 180 Proceedings may be delayed until security put in.... 181 Apnlicatiou for 182 Effect of not putting in 182 Of prosecution, of corporation, by Attorney-General 978, 979 Seduction — Commissioners' Court has not jurisdiction in matters of 60 Seigneuriaux (Droits).— (See Rents.) Seizurh.— (See Execution.) Exemption from 598,599 Hi/ garnishment. — {Sai.ne- Arret.) When resorted to 677 How made, and tenor of writ 678 Debtor to be summoned 678 Service governed by rules of ordinary writ 679 IMAGE EVALUATION TEST TARGET (MT-3) V] ^ 7 ^ y^^^ 7 ^^^ 1.0 I.I ;f ilM ilM ■ m lllllio Photographic Sciences Corporation 1.8 11-25 11.4 IIIIII.6 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503

13G 13T 138 131) 140 141 142 143 144 i4.> I4G- 147 148 14» 150 617 52e 113T 1153 1153^ 12G4 1265. 1267 130a Superior Court and Court of Rkvibw. — Jurisdiction of C. R. in reserved cases Jurisdiction of.. .. Evocation from Circuit Court Courts and persons subject to superintendence control, etc., of S. t) Alone has jurisdiction in matters of Capias SiIPPLBllKNTARY DEMAND, BTO and SuPRBin Court or Canada.— Appellate jurisdiction. Jurisdiction of. 48-53- 49 m- 894 19J^ 41 61 Indeof to the Code. 475 y ■SurtKTiRS. — (See also Security.) How offered 560 Siifliciency, how justitied 561 Ground of objection to 562 Sufficiency of, bow decided 563 It accepted, bond to be drawn up to remain of record. 564 Acceptance of, decided summarily 565 For bail in matters of Capias , 916-918 In appeal to Privy Council 1249 8vttHKsnsR.^{DSlai»sement.) Of moveables or immoveables, how effected in volun- tary execution of judj^ments 579 Voluntary, of an hypothecated immoveahlo 580 Judge must appoint curator, against whom subse- quent proceedings aredirected 581 Powers of curator in such case 582 iSuRVKYOR. — Appointment of, to determine boundaries 1060-1062 SusPKNsioN DKS PROcfcouRKS.— (5/a^ of Proceedings ) By dilatory exception 177 By motion for security 181 By intervention 222 By disavowal 256 By death or change of status of parties 269 Upon execution, by opposition 649 By opposition to seizure of immoveables 729 Where sale has already been stopped 654 In what cases sale suspended 721 By abandonment of property, notice required 871 By opposition in the Circuit Court in non-appealable cases 1146 . By opposition to judgment 1172 By petition for review 1176 By petition to revoke judgment 118i By tierce-opposition 1187 By inscription in review 1199 By inscription in appeal 1214 By appeal to Privy Council 1249 By opposition in Commissioners* Court 1282 By notice of petition for c«r<«oran, and cerliofiri 1296, 1300 Swearing, — Experts 400,401 Witnesses 321-324 Tariff of Fbks — Promulgation of 37,38 Penalty for exceeding 37 Court of Appeal may establish, when 1248 476 The Code of Civil Procedure. 3ZH 370 654 557 558 370 669 687 810 176 1246 790 Taxation.— Of witnetBes by prothonotary how taxation may be enforrrd Of expenses ofanswerinfi^ interrogatories 0/cofta Of witnesses siioimoned outside the jurisdiction Of service outside the province Of party summoned to answer interrogatories on articulated facts Costs of judicial sale must be taxed at once Garnishee entitled to be taxed as witness Of fees of registrar in relatii u to certiticate of hypothec in matters ofdistnbution Of sheriff's costs on sale of immoveables Of costs in appeal Taxbs.— Opposition not necessary to obtain payment of muni- cipal or school.... Oircuit Court has jiirisdiciion to the exclusion of the S. C. in the matter of school taxes Appeal to Circuit Court in certain cases in the matter of municipal taxes Jurisdiction of District Mngistrates' Court in the matter of municipal and school T^MoiNS. — (See [Vitnesaet.) Trndrr and Paymknt into Court. — Must describe object offered How made May be made at elected domicile What authentic document recording, must contain... May be renewed by pleading and paid into court • Withdrawal of moneys paid into court When opposite party may receive, without prejudice.. Expense of tender by whom borne TcRMBS DBS DivBRS Tribunaux.— (See Courts, ISittinga.) TK8TAMRNTS.—(See Wills.) : TiSTAMBNTARY KXBCDTOR.— (Sce ExCCUtOt.) Testimony.— (See Evidence.) Tbxts.— 4 Pltference between English and French version of the Code % TiBRcs Opposition. — (See Oppositions.) 1185 et seq* Tisb^-Saisi. — (See Garnishee!, Seizure by Garnishment, Attachment be/ore Judgment.) 677 et seq., 940 ei teq.. 54 61 583 584 585 686 587 588 588 589 1430 lnd€x to the Code. 47T Timbres'.— Bref d'aMignaiion 6mi8 sana timbres en certains cas urgents 119 Title, CoNriRMATioK or.— (See Confirmation of Title.)W6t ft sef. Traitimint.— (See Wa Special, must be named to ench minor in coses of partition and forced licitation 1039 To represent disqualified parties at the removal ot seals 1382 UnoEN'CT. — Issue of writ of summons in cases of 119 DsDRPATioi or Public . Corporate Ocficks or Franchises. — Who may bring complaint, and when 987 Rules governing summons and proceedings thereon... 988 Petition may declare who has a right lo the offic**, and court may adjudicate upon both claims... 9S{> Tenor of judgment if complaint well founded, add fine to which defendant may be condemned.... 9{)0 Rights of persons declared entitled to office 991 Vacance.— (See Holiday^ Sittings, Courts.) Vacant Succession. — (See Succession) 1426 ^78 The Code of Civil Procedure. Vaissbau.— (See 5Ai/)«.) Vrmmtioni Exponas.— Where writ of execution lost, goods seized but not sold 604 Vknoor. — Privilege of, {q concurrence with builder's privilege.. 805 Vkniiir Facias. — Writ of, bow issued and tenor 443 How served 445 Vkni K.— (See Sale, Sheriff" a Sale, Execution.) Vkntif-ation. — Of charges upon immoveables 805 Experts and their report 806, 807 Vkudict. — ilow and when rendered 476 When jurors allowed to separate 477 ir they fail to attend again, liable for contempt 477 How admonished by court when permitted to separate 478 Jury ma^ at any time re-examine witnesses, or ask opinion of judge 479 Agreement of nine jurors sufficient to return a 480 It' jury cannot agree on, may be discharged 481 Reception and entry of 482 Special, if on an assignment of facts 483 General, if no assignment 484 Before rendering, jurors may demand allowance ; effect of default to pay 485, 486 Must be on all the issues 487 eq. VisiTB DES LiKUx.— (See Experts.) ....391 etsei}, Vice- Admiralty Court. — Certiorari does not lie from, to S. 0. or C. Ot 1307 Judex to the Code. 479( Voluntary Exkcttion ovJudomknt bH'ititeq, Voluntary Iwiitation.— Of immoveable held undividedly between tutor nnd pupil I3r)r> VoLCNTARY SuRRiTMDBB.— (See .Surrender.) 5/9 et te'i . Waoks. — Exempt from seissure ri!)H-r>'.)<) Garnisliment of •j'JT Warra.vt or Arrb8T. — (See Capias.) WAitBANT Of Attachment.— (See Atlachmen' before Jvdijment.) Warr>^ ' y. — Slay of suit to •xercise recourse in 177 Delay to pi. id , \h:\ Delay fni- cmling in Wftrrantors IKI Form and contents of demand in 18r> Course of warrantor if, simple or personal !«(; in real \v.\rranty, anj' remote warrantor may bi' at once called in.'. 1«7 Wnrraniee in case of real warranty may lake up con- testation Xv^H Warrantee relieved from contestation nay remain in suit to protect his rights IsS Execution of judgment of !h8 Delay to plead isy Warrantor may plead against warrantee \i<\) WiFK. — Testimony of, for or against husband ni4 Service on, separated from bed and board I :3 Service on, separated as to property \^6'^ Wills. — Probate of. 1430 Witnesses. — Judge may require certain deposit before xvitnesses heard 205 How tummoned 'l\il Delay 297 May be summoned to declare what they know, or produce documents 298 Summons of, residing in Ontario 299 For such purpose special order is necessary 300 Service of subpoenas on, in Lower and Upper Canada. 301 In prison, order from judge to bring him before court 302 Penalty on witness disobeying subpoena 303 480 The Code of CicU rrocalure. Trnvelline expenses must be tendered him Piinishment. of, when he resides in Ontario FHiliire to produce, effect of Adjournment on account of absence ot Innbility of witness to attend, power ot Court such case , Order of exarainine la Examination of (See /Jro'iii nation for Purposes of JJixconery ani InK/iection of Uocument") 312- Testimony of one witness sutlicient . Otlier witnesses may be excluded from the room.. . Competency of What are objections to the credibility of Kvamination of parly by opposite party His evidence as a commencement of proof in writing Party may give testimony on his own behalf But his silence not to be construed against him Tt'stimony of notaries and witnesses admissible in action of impiobation Dcdf-mutesmay be Hailiff who has served writ of summons cannot testify as to certrtin facts Must be sworn oefore giving evidence ]l.)w if a quaker Form of oath to be changed according to religious creed of If witne^is refu?e to take oath......... .May be examined as to religious belief. Wliat he must believe in order to make the oath Any per^•on present may be examined Witness present cannot stipulate that travelling ex- penses be paid before he testifies Preliminary interrogations Objections to, may be established by preliminary ex- amination Party cannot impeach credit of his own But inaj prove by others the contrary of what he has said Refusal to answer or to produce object may entail coercive imprisonment 330; May object to answer incriminatory questions Priests or lawyers cannot be compelled to reveal professional cocfiiTencbS, nor officers of State secretsof public policy How examined to prove identity of any object, may be called on to produce object of litigation if in possession thereof is bouud to produce, etc., documents in his possession touching matters in issue Duty of prothonotary to tax How /ajca^ton may be enforced 303 .^03 304 305 307 310 ■344 :'.12 313 314 315 316 316 316 317 318 319 320 321 321 322 323 324 324 325 326 327 328 329 329 333 331 332 333 33 i 335 336 Index to the Code. ■m i'i8 29 (33 ^32 m Coats of depositions where more tliiin five, examined on same fact May not withdraw without permission of the Court... How examined How cross-examined When may be le-examined Examination of, may be coniinued from day today... I*enalty for default in such case Deposition of, given at former trial, etc , wlieii m-iy serve as evidence How examined in contested cases Taking down evidence by stenography How taken by llie Court -Votes of evidence must be read over .Must sign deposition If lie cannot sign Alterations of depositions Unautiienticated marginal notes, etc What deposition must first contain I'jXitminiition of, hij consent ..'.... E)xamination of witnesses who ate ill, or about 10 leave the province Kxamination of, elsewhere than where the case is pending without formality of commission How summoned in Circuit Court in noii-app. cases... Judge may order, to be examined in another district.. iipfore Commissioners' Court (Jtiiiunissioiis/or (he exaniindtion q/. 3SO-.''>!>0 How .summoned before experts 104 Co.sts of, when .'summoned from beyond jurisdiction.. 557 Commissioners' Court may compel attendance I'iT'.t AViMT oi' Att.vchmhxt by G.\hni.siimknt.. 941 et .sv.'7. WlUT 01.' ArrACHMKNT IN RkVK.NDICATIOX 1021 t'/V'/. ■WlMT OF ArTACHMKNT KOIJ KbxT 1027 f/ .st'7. Writ ok ('aphs S'Mi'tseff. Writ ok Ckrtiouari 1292 e if v'/. Writ of Executio.v.— (See Kxecution) Writ of Hahkas Coiipis. — (See Haheux Corpufi)... 1114 ef surf. Whit ok I. v junction-. 957 e/ .ffy. Writ of Mandamus '.)92 el si'i/. :«!♦ :mo 341 ;!42 :;i2 344 3 15 et seq. 34U .'550 350 350 .351 352 353 35(; 55 7-35 S 114:5 1115 I27.S Writ op Posskssion. — When granted Execution of writ In matters of Petition of Right. 2G tJlO (ill 1023 482 The Code of Civil Procedure. WniT OF PiioniniTioN 1003 et xeq. WniT 01" Quo Warranto 987 e/ .*(J7. Writ of Sciiie Facias 1007 ci .vev. Writ of ShizuuK by Gaunishmknt Ql^etaei;. Writ op Simple Attachmb.nt 9'St el se